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Addressing Rape Reform in Law and Practice

ISBN-10: 0231134258
ISBN-13: 9780231134255
Edition: 2009
Authors: Susan Caringella
List price: $36.00
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Description: Susan Caringella explores the legal definitions and prosecution of rape, especially date/acquaintance rape, deconstructing the myths and rhetoric used to blame the victim and presenting practical solutions to the problem of rape reform. Drawing on  More...

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Book details

List price: $36.00
Copyright year: 2009
Publisher: Columbia University Press
Publication date: 11/20/2008
Binding: Paperback
Pages: 368
Size: 6.75" wide x 9.25" long x 0.75" tall
Weight: 1.100
Language: English

Susan Caringella explores the legal definitions and prosecution of rape, especially date/acquaintance rape, deconstructing the myths and rhetoric used to blame the victim and presenting practical solutions to the problem of rape reform. Drawing on feminist and critical theory in sociology and criminology, as well as conservative and liberal theory in political science, this book assesses alternative models of rape reform, relying on concrete court cases and statistical data and the fascinating revelations of public opinion and attitude studies, which showcase the discrimination and humiliation rape victims face when they go public. Susan Caringella's painstaking, provocative, and highly readable research probes every aspect of rape law and the discrepancies between enacted and implemented law, or ideal law (on the books) and real law (law in action). She canvasses the success and failures of reform in the United States as well as Australia, Britain, Canada, and New Zealand, and uniquely delineates a creative alternative model for change, with an eye toward practicality. She further addresses the discretion that permeates criminal justice decision-making and undermines efforts at reform. These issues include charging the accused and plea bargaining; confronting a lack of transparency and accountability in implementing law; and acquiring funding for affecting change. Caringella writes the first comprehensive book on rape since Susan Brownmiller's Against Our Will(1975) and Susan Estrich's Real Rape(1987), and touches on such modern-day cases as the University of Colorado rapes, the Kobe Bryant case, and the accusations lodged against the Duke lacrosse team.

Susan Caringella is a professor in the Department of Sociology, Criminal Justice Program, and of Gender and Women's Studies at Western Michigan University. An internationally renowned expert on rape, feminism, and criminology, she is deputy editor of the Journal of Women and Criminal Justiceand an editorial board member for the Journal of Violence Against Womenand Feminist Criminology.

Background to Rape Reform
Unintended Consequences
Extant Models of Reform
Building from Prior Models
This Book's Model: Reforming Rape Reforms
Political Climate and Backlash
Legal Change Sweeps the Nation
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
Failures and Successes
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
Other Avenues for Victims
Victims' Rights
Community Registration and Notification
Extralegal Developments
Attitudes About Victims
Failures and Successes: A Recapitulation
The Legal Landscape
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
Affirmative Consent Reform Models
New Jersey's Law
Pineau's "Communicative Sexuality" Innovation: Combining Affirmative Consent and Strict Liability
Schulhofer's "Sexual Autonomy" Innovation: Beyond Affirmative Consent
Consent and Voluntariness, Agreement/Nonconsent and Involuntariness, Nonagreement
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
Presumptive Nonagreement
Aggravating Conditions, Force/Coercion, and Nonagreement
Presumptive Nonagreement
No Is Enough: She Said (No), He Heard (Yes, OK, Sure, Fine)
No Means No: Women Mean What They Say and Say What They Mean
Silence Does Not Mean Consent: Aggravating, Forceful, or Coercive Conditions
A Reasonable Woman's Point of View for a Change
Mens Rea
The Role of Mens Rea: Ignored, Used, or Redundant and Unnecessary?
Estrich and the Logic of Negligent Culpability
Pitfalls with Negligence
Borrowing from Homicide: Premeditation, Recklessness, Negligence, and Rape
Applying Recklessness and Negligence
Voluntariness, Agreement; Presumptive Nonagreement; Reckless/Negligent Mistakes
A Further Application of Reckless and Negligent Culpability: Taking Advantage of the Redundancy in Proof of Mens Rea in Nonagreement and Force/Coercion
A Woman's Point of View for a Change
Due Notice on the Unreasonableness of Mistakes of Nonagreement: No Until Proven Yes
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
Sexual Assault Under Duress and Fraud
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
Reforming Rape Reforms: Outline of the Model Array
Making the Changes: De Jure Law, Rules of Evidence, and Jury Instruction
Crime Considerations
Victim Considerations
Offender Considerations
Defense Considerations
Discussion of the Model Array
Crime Considerations
Victim Considerations
Offender Considerations
Defense Considerations
Case Examples: Application of the Model Array
Advantages of a Paradigm Shift
Renewing Efforts
The Model for Reforming Rape Reforms
Political Climate and Backlash
Political Will
Recommendations Complementing the Model Rape Law
Victims' Rights
Police and Prosecutors
Plea Bargaining
Criminal Justice Training
Equal Protection?
A Victim's Attorney: Lessons from Abroad
Moving Forward: Social Institutions, Structures, and Processes

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