Criminal Law Commons^™

Rape And The Querela In Italy: False Protection Of Victim Agency, Rachel A. Van Cleave

Michigan Journal of Gender & Law

This Essay describes the history of the querela in Italy and explores the controversy surrounding the decision to maintain this institution. In addition, this Essay questions the degree to which the querela can protect victim agency when the attitudes of judges and lawyers in the Italian criminal justice system reflect persistent rape myths.

The International Criminal Tribunal For Rwanda As The Theater: The Social Negotiation Of The Moral Authority Of International Law, Maya Steinitz

Faculty Scholarship

The international criminal courts (ICCs) - the ad hoc International Criminal Tribunals for the Former-Yugoslavia and for Rwanda, the recently-established permanent International Criminal Court, and hybrid internationalized tribunals such as the Special Court for Sierra Leone - are the international community's attempt to address the worst of the criminal manifestations of racism, nationalism and large-scale xenophobia. Based on five months of ethnographic research at the international criminal tribunal for Rwanda (ICTR), analyzed using Erving Goffman's dramaturgical framework, this article examines the means through which moral authority is constructed and communicated by the ICTR. Specifically, the article advances the argument that …

Forgetting Freud: The Courts' Fear Of The Subconscious In Date Rape (And Other) Criminal Cases, Andrew E. Taslitz

ExpressO

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the …

To Catch A Sex Thief: The Burden Of Performance In Rape And Sexual Assault Trials, Corey Rayburn Yung

ExpressO

Despite decades of efforts to reform American rape law, prosecution and conviction rates remain low compared to similar crimes. While activists led legislatures to adopt important statutory changes for rape and sexual assault, only modest effects in the levels of sexual violence have been observed. Nonetheless, reform-minded scholars continue to focus on statutory and rule tinkering as a means to quell sexual violence.

This article argues against the commonly-held belief that the crucial factors in determining the outcome of rape trials are substantive and procedural in nature. Rather, the issues of performance, representation, and language often pre-determine the outcomes of …

Defending And Despairing: The Agony Of Juvenile Defense, Abbe Smith

Nevada Law Journal

No abstract provided.

Roman Rape: An Overview Of Roman Rape Laws From The Republican Period To Justinian's Reign, Nghiem L. Nguyen

Michigan Journal of Gender & Law

The modern Western crime of rape is commonly defined as "[u]nlawful sexual activity (esp. intercourse) with a person (usu. a female) without consent and usu. by force or threat of injury," and it is often seen as an assault of the person's body and a violation of self-autonomy. However, this differs significantly from the conception of rape in ancient Rome. In fact, "there is no single word in... Latin with the same semantic field as the modern English word 'rape.'” For the Romans, the act of rape was covered under a variety of legal terms, but each of those words …

When A Victim's A Victim: Making Reference To Victims And Sex-Crime Prosecution, Scott A. Mcdonald

Nevada Law Journal

No abstract provided.

The Prohibition Of Widespread Rape As A Jus Cogens, Dean Adams

San Diego International Law Journal

This Comment explains why the prohibition of widespread rape should be recognized as a jus cogens through analyses of the failure of existing international legal instruments, advances within international law towards the universal prohibition of widespread rape, and policy reasons for classifying widespread rape as a jus cogens. In doing so, this comment will demonstrate the particular timeliness of this topic by reviewing the use of widespread rape in several countries through the 1990s, the widespread rape presently occurring in Kenya, and the emerging reports from Iraq of rape committed at the hands of the Saddam Hussein regime. Finally, this …

Was The Frog Prince Sexually Molested?: A Review Of Peter Westen's The Logic Of Consent, Heidi M. Hurd

Michigan Law Review

Peter Westen's The Logic of Consent is nothing short of a tour de force. In the tradition of the very best and most significant contributions to legal theory, Professor Westen demonstrates that we do not know what we think we know about a capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography. While we all employ claims of consent in everyday moral gossip to absolve some and withhold sympathy from others, and while courts of law across the nation commonly …

"No Provincial Or Transient Notion": The Need For A Mistake Of Age Defense In Child Rape Prosecutions, Jarrod F. Reich

Faculty Scholarship

Suppose a state legislature enacted a law making any theft a crime punishable by twenty years' imprisonment. Within this law was a provision precluding an accused from introducing evidence that he unwittingly took property to which he was not entitled. Suppose further that after this law was enacted, an elderly woman hung her black coat in a restaurant's lobby and, upon leaving, mistakenly retrieved another's black coat.1 Under the hypothetical statute, her mistake could neither hinder the prosecution's case against her nor be asserted by her as a defense. By inadvertently taking another's coat from a crowded restaurant, the woman …

Male Sexual Assault: Issues Of Arousal And Consent, Siegmund Fred Fuchs

Cleveland State Law Review

This Note argues that an erection under these circumstances does not indicate consent to engage in sexual activity. Part II of this Note explores the reality of male sexual assault and offers various medical, psychological, sociological, and cultural reasons to explain why a male victim may maintain an erection while being sexually assaulted and/or raped. Part II also explores the complex relationship between physical arousal and sexual desire. Part III provides a legal background to both the law's treatment of male sexual assault generally and in specific instances where the male victim maintained an erection during his assault. This part …

Review Of The Hanging Of Ephraim Wheeler : A Story Of Rape, Incest, And Justice In Early America, Michael F. Russo

Faculty Publications

No abstract provided.

The International Court Of Justices Decision In Congo V Belgium How Has It Affected The Development Of A Principle Of Universal Jurisdiction That Would Obligate All States To Prosecute War Criminals, Mark A. Summers

Faculty Scholarship

No abstract provided.

On Statutory Rape, Strict Liability, And The Public Welfare Offense Model, Catherine L. Carpenter

American University Law Review

Statutory Rape. At the center of a long-standing debate on whether its commission should require proof of a criminal mens rea, the prosecution of statutory rape offers a revealing look at the struggle to demarcate the parameters of the public welfare offense doctrine. Specifically, with respect to statutory rape, disagreement is deep and entrenched on whether statutory rape should be categorized as a public welfare offense, which would render irrelevant defendant's lack of knowledge of the victim's age. And despite wholesale revamping of state statutory rape laws on issues of age, gender, and potential grading and punishment, the debate on …

Why The Model Penal Code's Sexual Offense Provisions Should Be Pulled And Replaced, Deborah W. Denno

Faculty Scholarship

By all accounts, the Model Penal Code is enormously respected and influential. Yet, relatively soon after the Code's 1962 publication, the Code's sexual offense provisions and even its 1980 revised Commentaries were already considered outdated. The rapid onslaught of the sexual and feminist revolutions of the 1960s and 1970s brought an intense momentum to change rape laws that the Code had, in part, either mirrored or inspired. Only because of the passage of time, the Code's sexual offense provisions and Commentaries now misrepresent the progressive thinking of the Code's reporters. For these reasons, I think the Model Penal Code's sexual …

Sexualized Racism/Gendered Violence: Outraging The Body Politic In The Reconstruction South, Lisa Cardyn

Michigan Law Review

From its establishment in the months following the Civil War by a motley assortment of disgruntled former rebels, the first Ku Klux Klan, like its many vigilante counterparts, employed terror to realize its invidious social and political aspirations. This terror assumed disparate shapes - from the storied nightriding of disguised bands on horseback, to cryptic threats, horrific assaults, and, not infrequently, murder. While students of Reconstruction have considered many facets of klan violence, none to date has focused exclusively on sexual violence in its historical specificity. Yet, as the work of Catherine Clinton, Laura Edwards, and Martha Hodes persuasively demonstrates, …

Rape By Drugs: A Statutory Overview And Proposals For Reform, Patricia J. Falk

Law Faculty Articles and Essays

The methods by which human beings accomplish nonconsensual sexual activity with fellow humans are almost limitless. They use physical force; they beat, choke, and knock their victims unconscious. They kidnap and restrain them. They use weapons and threats of immediate force to subdue their quarry. They come in groups with the superior strength of their number. They exploit the element of surprise. They coerce, extort, and blackmail others into sexual submission. They lie, pretend, impersonate, and defraud, trapping the unwary in webs of deceit. They victimize mentally ill, mentally disabled, physically weak, and physically incapacitated persons. They abuse their positions …

The Prosecution Of Rape Under International Law: Justice That Is Long Overdue, James R. Mchenry, Iii

Vanderbilt Journal of Transnational Law

This Note argues that despite theoretical criticisms, the prosecution of rape and sexual enslavement as crimes against humanity, by the International Criminal Tribunal for the former Yugoslavia (ICTY) fits within a larger, emerging picture of international legal jurisprudence. First, the ICTY built upon both its own prior decisions and the decisions of the International Criminal Tribunal for Rwanda (ICTR), especially Prosecutor v. Akayesu, in order to close gaps in the international legal conceptualizations of rape and enslavement, torture, war crimes, genocide and crimes against humanity. Second, building upon the example set by the ICTR, the ICTY broadened international protections of …

Realities Of Rape: Of Science And Politics, Causes And Meanings, Owen D. Jones

Vanderbilt Law School Faculty Publications

This review essay discusses the book A Natural History of Rape: Biological Bases of Sexual Coercion, by Randy Thornhill and Craig Palmer (MIT Press, 2000). The essay builds on work previously appearing in Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999) and Owen D. Jones, Law and the Biology of Rape: Reflections on Transitions, 11 Hastings Women's Law Journal 151 (2000).

Rape And Force: The Forgotten Mens Rea, Kit Kinports

Faculty Scholarship

In rape cases involving physical violence or express threats of physical harm, proof of the actus reus obviously does establish mens rea with respect to force as well as nonconsent. A defendant who beat or threatened to kill his victim could hardly raise a plausible argument that he did not know he was using force. But, in other circumstances, the defendant's mens rea vis-a-vis force may be less clear, and it may therefore make a difference whether a rape conviction requires proof that the defendant purposely intended to use force, or whether it is enough that he knew he was …

Crossing The Line: Rape-Murder And The Death Penalty, Phyllis L. Crocker

Law Faculty Articles and Essays

When a woman is raped and then murdered, it is among the most horrifying of crimes. It is also, often, among the most sensational, notorious, and galvanizing of cases. In 1964, Kitty Genovese was raped and murdered in Queens, New York. Her murder sparked soul-searching across the country because her neighbors heard her cries for help and did not respond: it made us question whether we had become an uncaring people. During the 1970s and 80s a number of serial killers raped and murdered their victims: including Ted Bundy in Florida and William George Bonin, the “Freeway Killer,” in Southern …

Sex, Culture, And The Biology Of Rape: Toward Explanation And Prevention, Owen D. Jones

Vanderbilt Law School Faculty Publications

For all that has been written about rape, its multiple causes remain insufficiently understood for law to deter it effectively. This follows, in part, from inadequately interdisciplinary study of rape causation. This Article argues that integrating life science and social science perspectives on sexual aggression can improve law's model of rape behavior, and further our efforts to reduce its incidence.

The Article first explains biobehavioral theories of sexual aggression, and offers a guide to common but avoidable errors in assessing them. It then compares a number of those theories' predictions with existing data and demonstrates how knowledge of the effects …

Evolutionary Biology And Rape, Deborah W. Denno

Faculty Scholarship

This article queries whether an evolutionary analysis of rape may be more compelling in explaining a rape victim's fear than a defendant's sexual aggression. Such a victim-oriented approach could help legal decisionmakers assess the reasonableness of the victim's fear when determining whether sex was forced or threatened. These ideas are explored in the context of two well-known rape trials, State v. Rusk and State v. Smith. This article concludes that evolutionary biology can contribute to an understanding of rape. However, the supposed evolutionary underpinnings of male sexual aggression should not justify such behavior or render it acceptable as a criminal …

Racial Differences In Rape Myth Acceptance Among College Women, Lekeshia M. Washington

Sociology & Criminal Justice Theses & Dissertations

This study investigates the racial differences in rape myth acceptance among college women. There has been little research on the topic of rape which examines solely the opinions of women. Black and white college women {N=623) completed a survey which measured the degree of acceptance or rejection of false beliefs about rape, rape victims, or rapists. These false beliefs were termed rape myths. The myths demean the victim and support stereotypes about rape. Past research suggests that blacks accept rape myths more than whites, and that victims accept rape myths more than nonvictims. This study's analyses suggest that women as …

Life Before The Modern Sex Offender Statutes , Deborah W. Denno

Faculty Scholarship

This Article examines the social and legal developments that fueled the origins and recurring problems of sex offender laws. Part I of this Article discusses the primary precursors of the sexual psychopath statutes that encouraged the public's and politicians' acceptance of the concept of sexual psychopathy: the increasing sexualization of American society, changes in gender roles and relations, the valuation of children and the family unit, and the influx of psychiatry. Part II describes how the diagnosis of sexual psychopathy slowly developed as a result of the criminal justice system's growing tendency to explain criminal behavior in psychoanalytic terms. Part …

Rape By Fraud And Rape By Coercion, Patricia J. Falk

Law Faculty Articles and Essays

For more than a century, courts, legislatures, and legal commentators have struggled with the controversial and highly charged question of whether accomplishing sexual intercourse by means of fraud or coercion is blameworthy and appropriately condemnable as rape. In 1986 Professor Susan Estrich suggested that rape law should "prohibit fraud to secure sex to the same extent we prohibit fraud to secure money, and prohibit extortion to secure sex to the same extent we prohibit extortion to secure money." (Susan Estrich, Rape, 95 Yale L. J. 1087, 1120 (1986)). Such suggestion spawned the latest cycle of discussion about this age-old conundrum …

No Penetration - And It's Still Rape, Lundy Langston

Journal Publications

This Article explores the penetration requirement and considers the following: (1) whether it is a male or reasonable person understanding of what is so violative of a woman's body that it should be referred to as rape; and (2) what punishment should be imposed. This Article explores problems raised by the "foreplay" issue. Understanding that rape is not sex, in order to deem a violation, one must understand how a violation is characterized. In addition to defining what is violative, the foreplay issue raises questions about characterizations from a male perspective concerning when a male is placed on notice by …

Pink Elephants In The Rape Trial: The Problem Of Tort-Type Defenses In The Criminal Law Of Rape, Aya Gruber

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Response: Between Economics And Sociology: The New Path Of Deterrence, Dan M. Kahan

Michigan Law Review

The explosive collision of economics and sociology has long illuminated the landscape of deterrence theory. It is a debate as hopeless as it is spectacular. Economics is practical but thin. Starting from the simple premise that individuals rationally maximize their utility, economics generates a robust schedule of prescriptions - from the appropriate size of criminal penalties,1 to the optimal form of criminal punishments, to the most efficient mix of private and public investments in deterrence. Yet it is the very economy of economics that ultimately subverts it: its account of human motivations is too simplistic to be believable, and it …

Pink Elephants In The Rape Trial: The Problem Of Tort-Type Defenses In The Criminal Law Of Rape, Aya Gruber

Publications

No abstract provided.