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.
- Contents
- Acknowledgments
- Background to Rape Reform | ONE
- UNINTENDED CONSEQUENCES
- EXTANT MODELS OF REFORM
- BUILDING FROM PRIOR MODELS
- THE BOOK’S MODEL: REFORMING RAPE REFORMS
- POLITICAL CLIMATE AND BACKLASH
- Legal Change Sweeps the Nation | TWO
- OVERALL CHANGE
- REMOVAL OF UNIQUE REQUIREMENTS
- REDEFINITIONS: VIOLENCE AND DEVIATE OR CRIMINAL SEXUAL CONDUCT AND SEXUAL ASSAULT
- OTHER LEGAL CHANGES
- REFORMS IN CANADA, ENGLAND AND WALES, AUSTRALIA, AND NEW ZEALAND
- OTHER VICTIM-ORIENTED DEVELOPMENTS
- EXTRALEGAL DEVELOPMENTS
- SUMMARY
- Failures and Successes | THREE
- REQUIREMENTS
- ENHANCEMENTS IN CRIMINAL JUSTICE PROCESSING
- COMPARABILITY TO OTHER CRIMES
- REDEFINITIONS: SUCCESSES AND FAILURES
- OTHER LEGAL PROVISIONS
- SUCCESSES AND FAILURES IN REFORM LAWS ABROAD
- Avenues for and Attitudes About Victims | FOUR
- OTHER AVENUES FOR VICTIMS
- VICTIMS’ RIGHTS
- COMMUNITY REGISTRATION AND NOTIFICATION
- EXTRALEGAL DEVELOPMENTS
- ATTITUDES ABOUT VICTIMS
- FAILURES AND SUCCESSES: A RECAPITULATION
- The Legal Landscape | FIVE
- PATRIARCHY AS CONTEXT
- ESTABLISHING ELEMENTS OF RAPE: NONCONSENT, FORCE / COERCION, AND INTENT
- STRICT LIABILITY
- THE CONSENT DEFENSE AND EARLY REFORM PROBLEMS
- THE MISTAKEN CONSENT DEFENSE: REFORM ESTABLISHING NEGLIGENT RESPONSIBILITY
- SUMMARY
- Affirmative Consent Reform Models | SIX
- NEW JERSEY’S LAW
- PINEAU’S “COMMUNICATIVE SEXUALITY” INNOVATION: COMBINING AFFIRMATIVE CONSENT AND STRICT LIABILITY
- SCHULHOFER’S “SEXUAL AUTONOMY” INNOVATION: BEYOND AFFIRMATIVE CONSENT
- SUMMARY
- Consent and Voluntariness, Agreement/Nonconsent and Involuntariness, Nonagreement | SEVEN
- RECOGNIZING BACKGROUND FACTS
- CONSENT AND NONCONSENT: A CONTINUUM
- A LINE IN THE SAND
- IMPLICIT COERCION AND CONSENT
- SEMANTICS: CHANGING “CONSENT” TO “VOLUNTARINESS, AGREEMENT” AND “NONCONSENT” TO “INVOLUNTARINESS, NONAGREEMENT”
- SEMANTICS: CHANGING THE DEFENSE OF CONSENT TO THE DEFENSE OF VOLUNTARINESS, AGREEMENT
- DEFINITION OF VOLUNTARINESS, AGREEMENT
- ELIMINATING THE DOCTRINE OF IMPLIED CONSENT: STATUTORY SPECIFICATION
- SHE’S NOT A LIAR: STATUTORY SPECIFICATION
- SUMMARY
- Presumptive Nonagreement | EIGHT
- AGGRAVATING CONDITIONS, FORCE/COERCION, AND NONAGREEMENT
- PRESUMPTIVE NONAGREEMENT
- NO IS ENOUGH: SHE SAID (NO), HE HEARD (YES, OK, SURE, FINE)
- NO MEANS NO: WOMEN SAY WHAT THEY MEAN AND MEAN WHAT THEY SAY
- SILENCE DOES NOT MEAN CONSENT: AGGRAVATING, FORCEFUL, OR COERCIVE CONDITIONS
- A REASONABLE WOMAN’S POINT OF VIEW FOR A CHANGE
- SUMMARY
- Mens Rea | NINE
- THE ROLE OF MENS REA: IGNORED, USED, OR REDUNDANT AND UNNECESSARY?
- NEGLIGENCE
- ESTRICH AND THE LOGIC OF NEGLIGENT CULPABILITY
- PITFALLS WITH NEGLIGENCE
- BORROWING FROM HOMICIDE: PREMEDITATION, RECKLESSNESS, NEGLIGENCE, AND RAPE
- SUMMARY
- Applying Recklessness and Negligence | TEN
- VOLUNTARINESS, AGREEMENT; PRESUMPTIVE NONAGREEMENT;RECKLESS/NEGLIGENT MISTAKES
- A FURTHER APPLICATION OF RECKLESS AND NEGLIGENT CULPABILITY: TAKING ADVANTAGE OF THERE DUNDANCY IN PROOF OF MENS REA IN NONAGREEMENT AND FORCE/COERCION
- A WOMAN’S POINT OF VIEW FOR A CHANGE
- DUE NOTICE ON UNREASONABLENESS OF MISTAKES OF NONAGREEMENT: NO UNTIL PROVEN YES
- SUMMARY
- Defenses | ELEVEN
- AFFIRMATIVE DEFENSE: SHIFTING THE BURDEN OF PRODUCTION
- SHIFTING THE BURDEN OF PROOF
- SHIFTING TO “AFFIRMATIVE CONSENT” LEGAL REFORM:“SHE’S A LIAR” AND “I’M A BLUNDERER” DEFENSES
- DEFENSES UNAVAILABLE AND DUE NOTICE
- A NOTE ON PAST SEXUAL HISTORY EVIDENCE AND THE “LIAR” AND “BLUNDERER” DEFENSES
- SUMMARY
- Sexual Assault Under Duress and Fraud | TWELVE
- SEXUAL ASSAULT UNDER NONVIOLENT DURESS
- SEXUAL ASSAULT BY FRAUD, GUILE, OR DECEIT
- CRIMINALIZATION OF SEXUAL ASSAULT BY DURESS AND FRAUD: A REASONABLE WOMAN’S POINT OF VIEW
- A CAVEAT: MAKING THE CHANGES TENABLE
- SUMMARY
- Reforming Rape Reforms | THIRTEEN
- MAKING THE CHANGES: DE JURE LAW, RULES OF EVIDENCE, AND JURY INSTRUCTION
- CRIME CONSIDERATIONS
- VICTIM CONSIDERATIONS
- OFFENDER CONSIDERATIONS
- DEFENSE CONSIDERATIONS
- SUMMARY
- Discussion of the Model Array | FOURTEEN
- CRIME CONSIDERATIONS
- VICTIM CONSIDERATIONS
- OFFENDER CONSIDERATIONS
- DEFENSE CONSIDERATIONS
- CASE EXAMPLES: APPLICATION OF THE MODEL ARRAY
- Advantages of a Paradigm Shift | FIFTEEN
- RENEWING EFFORTS
- THE MODEL FOR REFORMING RAPE REFORMS
- POLITICAL CLIMATE AND BACKLASH
- POLITICAL WILL
- Recommendations Complementing the Model Rape Law | SIXTEEN
- VICTIMS’ RIGHTS
- POLICE AND PROSECUTORS
- PLEA BARGAINING
- JURORS
- JUDGES
- CRIMINAL JUSTICE TRAINING
- COMPLIANCE
- EQUAL PROTECTION?
- A VICTIM’S ATTORNEY: LESSONS FROM ABROAD
- Moving Forward | SEVENTEEN
- MEDIA
- EDUCATION
- CONCLUSIONS
- Notes
- References
- Index
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