A Comment on Consent, Sex, and Rape

Legal Theory ◽  
1996 ◽  
Vol 2 (3) ◽  
pp. 233-251 ◽  
Author(s):  
Robin West
Keyword(s):  
Sexual Assault ◽  
Sexual History ◽  
Marital Rape ◽  
Rape Law ◽  
The Law

During the last 25 years, rape law has undergone a profound transformation, as the articles in this symposium clearly show. To mention just three of the more striking doctrinal reformations: All states have repealed the most egregious aspects of die marital rape exception; most have abandoned the “utmost resistance” requirement; and all have enacted rape shield laws to protect complaining witnesses from intrusive inquiries into their sexual history. All three reforms were the product of feminist agitation, all three were aimed toward the general end of redirecting rape law toward the protection of women's, rather than men's, interests, and all three did, to some degree, broaden and democratize the scope of the law's protection: Wives, prostitutes, promiscuous girls, and women not inclined to risk their deaths by fighting off their rapists “to the utmost” are now protected by the law of rape against sexual assault, at least in theory, and at least to the same degree as non-wives and non-prostitutes, fighters, and virgins. All of this, virtually every contributor to this symposium agrees, is very much to the good.

Rereading Rape in the Critical Canon

differences ◽  
2021 ◽  
Vol 32 (2) ◽  
pp. 122-160
Author(s):  
Erin A. Spampinato
Keyword(s):  
Sexual Assault ◽  
Sexual Violence ◽  
Literary Criticism ◽  
Rape Law ◽  
The Law ◽  
Criminal Conduct ◽  
Forms Of Violence ◽  
As If ◽  
Physical Outcomes

This essay identifies what the author terms “adjudicative reading,” a tendency in literary criticism to read novels depicting sexual violence as if in a court of law. Adjudicative reading tracks characters’ motivations and the physical outcomes of their actions as if novels can offer evidence, or lack thereof, of criminal conduct. This legalistic style of criticism not only ignores the fictionality of incidences of rape in novels, but it replicates the prejudices inherent in historical rape law by centering the experiences of the accused character over and against the harm caused to the fictional victim of rape. By contrast, the “capacious” conception of rape proposed here refuses to locate rape in a particular bodily act (as the law does), rejects the yoking of rape’s harms to a particular gender, and understands various forms of violence as equally serious (rather than creating a hierarchy of sexual assault, as current legal conceptions tend to do).

Genital Call and Genitals on Trial: by Giegold & Weiß (nGbK, 2014)

Screen Bodies ◽  
2016 ◽  
Vol 1 (2) ◽  
pp. 87-91
Author(s):  
Karen Fiss
Keyword(s):  
Sexual Assault ◽  
Male Student ◽  
The Other ◽  
Columbia University ◽  
The Law ◽  
Affirmative Consent

In California, where I live, an affirmative consent law was recently passed: often referred to as the “yes means yes” standard for sexual assault, it is now required of all colleges receiving state funds. Supporters of the law argue that campus rapists can no longer be exonerated because their victims did not resist or were incapacitated by fear, shame, or intoxication. On the other side of the country, a student at Columbia University became an icon in this ongoing legal struggle by carrying her mattress around with her everywhere, including to her graduation, as a sign of protest against the university’s refusal to expel the male student who raped her.

Risk, propriety, and sexual assault

2009 ◽  
pp. 93-111
Author(s):  
Diana Young
Keyword(s):  
Sexual Assault ◽  
Social Theory ◽  
Closed System ◽  
Social Transformation ◽  
Risk Theory ◽  
Discursive Practices ◽  
Canadian Law ◽  
The Law ◽  
A Site ◽  
Traditional Norms

- Legal theorists often conceive of the law as a closed system of reasoning, and as the central mechanism through which the uses of power are conferred and circumscribed. However, social theory challenges this conception of law by telling us that a great deal of power is non-juridical in nature, operating through discursive practices that define and normalize conduct. This raises doubts as to whether juridical power can be used to achieve social transformation. Risk theory uncovers discursive practices that operate as non-juridical sites of power, by showing how risk analyses normalize contingent values through the use of value-neutral terms of statistical probabilities. For example, feminist criminologists, drawing on risk theory, have shown us how risk discourses can be used to reinforce traditional norms of femininity, particularly by responsibilizing women for minimizing the risk of sexual assault. Using an example from the Canadian law of sexual assault, this paper considers whether the law inevitably reproduces the very discourses of femininity that many law reformers are trying to disrupt, or whether it might act as a site wherein these discourses may be challenged.

Sentencing in cases of marital rape: towards changing the male imagination

Legal Studies ◽  
2000 ◽  
Vol 20 (4) ◽  
pp. 592-611 ◽  
Author(s):  
Kate Warner
Keyword(s):  
Intimate Relationship ◽  
Male Sexuality ◽  
Marital Rape ◽  
Criminal Proceedings ◽  
Sentencing Decisions ◽  
Rape Law ◽  
Aggressive Male ◽  
Male Dominated ◽  
Mitigating Factor ◽  
Court Of Appeal

The failure of rape law to convict more men and to protect more women appears to be attributable to the fact that underlying, and assumed by, the law is a male dominated conception of aggressive and possessive male sexuality and a misunderstanding of the real wrong of rape. The sentencing stage of criminal proceedings offers courts the opportunity to challenge these attitudes. Court of Appeal sentencing decisions in cases of marital and relationship rape are analysed and sentencing principles and practice which endorse and reinforce a male dominated conception of sexuality and the wrong of rape are criticised. So, it is argued, an intimate relationship between the offender and the victim should not be a mitigating factor. Nor should forgiveness be a special mitigating factor in cases of marital rape. And attempts to mitigate rape by explaining it in terms of emotional stress, an excess of seductive zeal or other ways that treat aggressive male sexual behaviour and female passivity as the norm, should not be countenanced. Instead, sentencing guidance should foster attitudes which conceive of sexuality as an expression of equal and sharing relationships.

Marital Rape and the Law

Marital Rape ◽  
2016 ◽  
pp. 87-102
Author(s):  
Judith L. Singleton
Keyword(s):  
Marital Rape ◽  
The Law

The Legal Enforcement of Integrity

2020 ◽  
pp. 35-62
Author(s):  
Stuart P. Green
Keyword(s):  
Criminal Justice ◽  
Sexual Assault ◽  
Criminal Justice System ◽  
Justice System ◽  
Political System ◽  
Legal Discourse ◽  
Bodily Integrity ◽  
Moral Concepts ◽  
Legal Enforcement ◽  
The Law

Talk of “integrity” is ubiquitous in law and legal discourse: Protecting the integrity of our political system has been cited as a basis for anti-corruption laws; preserving the integrity of the legal profession as a principle underlying the rules of lawyer ethics; ensuring integrity in policing and in the wider criminal justice system as a justification for excluding evidence obtained in violation of the Constitution; and protecting bodily integrity as a potential goal for the law of rape and sexual assault. This chapter examines what integrity means in each of these contexts, what these uses have in common, and whether thinking about these various rules and doctrines in terms of integrity rather than other moral concepts leads to any practical difference in outcome. It also asks what the examination of integrity in the law can tell us about the concept of integrity in other contexts.

The Modern Politics of Sexual Assault Prosecution

2020 ◽  
pp. 13-18
Author(s):  
Matthew Barry Johnson
Keyword(s):  
Sexual Assault ◽  
Acquaintance Rape ◽  
Common Type ◽  
Reform Movement ◽  
Law Reform ◽  
Legal Process ◽  
Rape Law ◽  
Modern Politics ◽  
Rape Law Reform ◽  
The Us

This chapter presents and discusses the “rape law reform” movement that emerged in the 1970s. The movement sought reforms designed to encourage victims to make official reports and facilitate the successful prosecution of rape and sexual assault. The movement achieved legislative and practice reform, but there was no discernible increase in sexual assault convictions. The rape law reform movement solidified an alliance of concern that strengthened vigorous prosecution of “stranger rapes” but had little impact on the more common type of rape, “acquaintance rape.” Rape law reform advocacy produced dramatic and rapid legislative change, change that was clearly warranted not only for victims of sexual assault, but also reform that contributed to the integrity of the US legal process.

Sexual Assault in the Shadow of the Law

2013 ◽  
Vol 25 (2) ◽  
pp. 311-326
Author(s):  
Ann K. Wagner
Keyword(s):  
Sexual Assault ◽  
The Law

scholarly journals Rape Trials and Sexual History Evidence

2017 ◽  
Vol 81 (5) ◽  
pp. 367-392 ◽  
Author(s):  
Clare McGlynn
Keyword(s):  
Research Data ◽  
Sexual History ◽  
Third Party ◽  
Law Reform ◽  
Considerable Debate ◽  
Rape Trials ◽  
The Law ◽  
Court Of Appeal

Despite repeated legislative attempts to restrict the use of sexual history evidence in rape trials, it continues to be admitted in many cases, causing considerable debate and leading to further attempts to reform the law. In this light, this article examines afresh the admissibility of sexual history evidence in rape trials. It focuses particularly on evidence relating to persons other than the accused (third-party evidence), following the recent controversial judgment of the Court of Appeal in R v Ched Evans where such evidence was introduced. The justifications for restricting sexual history evidence are considered, as well as research data on how often it is being used. Following an analysis of the current law, the article concludes that urgent reform is needed and a number of law reform options are examined.

Rape Trial Studies: Handle with Care

1997 ◽  
Vol 30 (1) ◽  
pp. 26-35
Author(s):  
Jeremy Gans
Keyword(s):  
Decision Making ◽  
Empirical Research ◽  
Law Reform ◽  
Rape Law ◽  
Rape Trial ◽  
Rape Trials ◽  
The Law ◽  
Fact Finding

The notion that the issue of the accused's honest belief about consent has little effect on the outcome of most rape trials has gained considerable acceptance amongst some rape law reformers. The acceptance of this claim can be partly traced to the Law Reform Commission of Victoria's study of rape prosecutions in 1991. However, properly considered, the study provides no support for this assertion. This is because of two limitations to the study: the merely cursory analysis of pre-trial decision making and the lack of plausible assessment of the jury's approach to its fact-finding task. Properly understood, the study's findings suggest a reform of the trial judge's direction to the jury, a possibility ignored in the Law Reform Commission's report. This paper argues that law reformers should pay more attention to such limitations when considering empirical research into rape prosecutions.

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