Addressing Rape Reform in Law and PracticeColumbia University Press, 2009 - 347 síður The first comprehensive book on rape since Susan Brownmiller's Against Our Will and Susan Estrich's Real Rape, this volume probes every aspect of rape law and the discrepancies between ideal law (on the books) and real law (in action). Susan Caringella canvasses the success and failure of reform in the United States, as well as Australia, Britain, Canada, and New Zealand, and assesses alternative perspectives on rape reform, making use of theoretical models, court cases and statistical data. She uniquely delineates a creative model for change while addressing the discretion that undermines efforts at change. This includes charging the accused and plea bargaining, confronting a lack of transparency and accountability in implementing law, and acquiring funding for such changes. |
Efni
Background to Rape Reform | 1 |
Extant Models of Reform | 2 |
Building from Prior Models | 4 |
Reforming Rape Reforms | 5 |
Political Climate and Backlash | 10 |
Legal Change Sweeps the Nation | 12 |
Overall Change | 13 |
Violence and Deviate or Criminal Sexual Conduct and Sexual Assault | 17 |
Negligence | 140 |
Estrich and the Logic of Negligent Culpability | 142 |
Pitfalls with Negligence | 144 |
Premeditation Recklessness Negligence and Rape | 146 |
Summary | 152 |
Applying Recklessness and Negligence | 154 |
Taking Advantage of the Redundancy in Proof of Mens Rea in Nonagreement and ForceCoercion | 160 |
A Womans Point of View for a Change | 163 |
Other Legal Changes | 18 |
Reforms in Canada England and Wales Australia and New Zealand | 21 |
Other VictimOriented Developments | 23 |
Extralegal Developments | 26 |
Summary | 27 |
Failures and Successes | 28 |
Requirements | 29 |
Enhancements in Criminal Justice Processing | 34 |
Comparability to Other Crimes | 37 |
Redefinitions Successes and Failures | 38 |
Other Legal Provisions | 39 |
Successes and Failures in Reform Laws Abroad | 44 |
Avenues for and Attitudes About Victims | 50 |
Victims Rights | 54 |
Community Registration and Notification | 55 |
Extralegal Developments | 56 |
A Recapitulation | 60 |
The Legal Landscape | 62 |
Patriarchy as Context | 63 |
Nonconsent ForceCoercion and Intent | 66 |
Strict Liability | 67 |
The Consent Defense and Early Reform Problems | 68 |
Reform Establishing Negligent Responsibility | 70 |
Summary | 74 |
Affirmative Consent Reform Models | 75 |
New Jerseys Law | 76 |
Combining Affirmative Consent and Strict Liability | 82 |
Beyond Affirmative Consent | 88 |
Summary | 95 |
Consent and Voluntariness AgreementNonconsent and Involuntariness Nonagreement | 96 |
A Continuum | 99 |
A Line in the Sand | 101 |
Implicit Coercion and Consent | 102 |
Changing Consent to Voluntariness Agreement and Nonconsent to Involuntariness Nonagreement | 109 |
Changing the Defense of Consent to the Defense of Voluntariness Agreement | 111 |
Definition of Voluntariness Agreement | 112 |
Statutory Specification | 113 |
Statutory Specification | 114 |
Summary | 117 |
Presumptive Nonagreement | 119 |
Presumptive Nonagreement | 120 |
She Said No He Heard Yes OK Sure Fine | 124 |
Women Mean What They Say and Say What They Mean | 126 |
Aggravating Forceful or Coercive Conditions | 129 |
A Reasonable Womans Point of View for a Change | 132 |
Summary | 136 |
Mens Rea | 138 |
No Until Proven Yes | 165 |
Summary | 167 |
Defenses | 169 |
Shifting the Burden of Production | 170 |
Shifting the Burden of Proof | 171 |
Shes a Liar and Im a Blunderer Defenses | 174 |
Defenses Unavailable and Due Notice | 180 |
A Note on Past Sexual History Evidence and the Liar and Blunderer Defenses | 182 |
Summary | 183 |
Sexual Assault Under Duress and Fraud | 184 |
Sexual Assault Under Nonviolent Duress | 186 |
Sexual Assault by Fraud Guile or Deceit | 195 |
A Reasonable Womans Point of View | 198 |
Making the Changes Tenable | 199 |
Summary | 202 |
Reforming Rape Reforms Outline of the Model Array | 203 |
Crime Considerations | 206 |
Victim Considerations | 208 |
Offender Considerations | 210 |
Summary | 212 |
Discussion of the Model Array | 213 |
Crime Considerations | 214 |
Victim Considerations | 217 |
Offender Considerations | 224 |
Defense Considerations | 226 |
Application of the Model Array | 231 |
Advantages of a Paradigm Shift | 240 |
The Model for Reforming Rape Reforms | 245 |
Political Climate and Backlash | 252 |
Political Will | 254 |
Recommendations Complementing the Model Rape Law | 257 |
Victims Rights | 258 |
Police and Prosecutors | 262 |
Plea Bargaining | 263 |
Jurors | 266 |
Judges | 268 |
Compliance | 269 |
Equal Protection? | 274 |
Lessons from Abroad | 276 |
Moving Forward Social Institutions Structures and Processes | 279 |
Education | 282 |
Conclusions | 284 |
Notes | 291 |
References | 317 |
| 331 | |
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Common terms and phrases
accused act(s affirmative consent affirmative defense aggravating conditions agreement alleged and/or arguing assault under duress behavior belief burden charges Clery Act coercion coercive consent defense conviction corroboration court crime of rape criminal justice criminal responsibility culpability date rape defendant's defined definitions Estrich example federal feminist force/coercion fraud harm indicate injury intent involuntariness involved issue judges jurisdictions jurors jury instructions Kadish and Schulhofer Kinports Kobe Bryant legislation male means mens rea ment Michigan Model Penal Code nonconsent penetration physical Pineau plea bargaining point of view police presumptive nonagreement problem proof prosecution prosecutors provides rape and sexual rape law rape reform rape victims reasonable mistake recklessness and negligence recognized reform laws requirement resistance Schulhofer 2001 Schulhofer's sex acts sexual activity sexual assault sexual autonomy sexual penetration specific standard statute statutory rape strict liability threats tion types of rape unreasonable VAWA victim consent violence against women woman