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Acknowledgments | |
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Background to Rape Reform | |
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Unintended Consequences | |
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Extant Models of Reform | |
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Building from Prior Models | |
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This Book's Model: Reforming Rape Reforms | |
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Political Climate and Backlash | |
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Legal Change Sweeps the Nation | |
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Overall Change | |
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Removal of Unique Requirements | |
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Redefinitions: Violence and Deviate or Criminal Sexual Conduct and Sexual Assault | |
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Other Legal Changes | |
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Reforms in Canada, England and Wales, Australia, and New Zealand | |
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Other Victim-Oriented Developments | |
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Extralegal Developments | |
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Summary | |
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Failures and Successes | |
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Requirements | |
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Enhancements in Criminal Justice Processing | |
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Comparability to Other Crimes | |
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Redefinitions: Successes and Failures | |
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Other Legal Provisions | |
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Successes and Failures in Reform Laws Abroad | |
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Avenues for and Attitudes About Victims | |
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Other Avenues for Victims | |
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Victims' Rights | |
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Community Registration and Notification | |
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Extralegal Developments | |
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Attitudes About Victims | |
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Failures and Successes: A Recapitulation | |
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The Legal Landscape | |
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Patriarchy as Context | |
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Establishing Elements of Rape: Nonconsent, Force/Coercion, and Intent | |
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Strict Liability | |
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The Consent Defense and Early Reform Problems | |
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The Mistaken Consent Defense: Reform Establishing Negligent Responsibility | |
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Summary | |
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Affirmative Consent Reform Models | |
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New Jersey's Law | |
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Pineau's "Communicative Sexuality" Innovation: Combining Affirmative Consent and Strict Liability | |
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Schulhofer's "Sexual Autonomy" Innovation: Beyond Affirmative Consent | |
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Summary | |
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Consent and Voluntariness, Agreement/Nonconsent and Involuntariness, Nonagreement | |
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Recognizing Background Facts | |
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Consent and Nonconsent: A Continuum | |
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A Line in the Sand | |
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Implicit Coercion and Consent | |
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Semantics: Changing "Consent" to "Voluntariness, Agreement" and "Nonconsent" to "Involuntariness, Nonagreement" | |
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Semantics: Changing the Defense of Consent to the Defense of Voluntariness, Agreement | |
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Definition of Voluntariness, Agreement | |
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Eliminating the Doctrine of Implied Consent: Statutory Specification | |
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She's Not a Liar: Statutory Specification | |
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Summary | |
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Presumptive Nonagreement | |
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Aggravating Conditions, Force/Coercion, and Nonagreement | |
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Presumptive Nonagreement | |
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No Is Enough: She Said (No), He Heard (Yes, OK, Sure, Fine) | |
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No Means No: Women Mean What They Say and Say What They Mean | |
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Silence Does Not Mean Consent: Aggravating, Forceful, or Coercive Conditions | |
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A Reasonable Woman's Point of View for a Change | |
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Summary | |
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Mens Rea | |
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The Role of Mens Rea: Ignored, Used, or Redundant and Unnecessary? | |
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Negligence | |
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Estrich and the Logic of Negligent Culpability | |
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Pitfalls with Negligence | |
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Borrowing from Homicide: Premeditation, Recklessness, Negligence, and Rape | |
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Summary | |
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Applying Recklessness and Negligence | |
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Voluntariness, Agreement; Presumptive Nonagreement; Reckless/Negligent Mistakes | |
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A Further Application of Reckless and Negligent Culpability: Taking Advantage of the Redundancy in Proof of Mens Rea in Nonagreement and Force/Coercion | |
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A Woman's Point of View for a Change | |
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Due Notice on the Unreasonableness of Mistakes of Nonagreement: No Until Proven Yes | |
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Summary | |
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Defenses | |
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Affirmative Defense: Shifting the Burden of Production | |
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Shifting the Burden of Proof | |
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Shifting to "Affirmative Consent" Legal Reform: "She's a Liar" and "I'm a Blunderer" Defenses | |
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Defenses Unavailable and Due Notice | |
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A Note on Past Sexual History Evidence and the "Liar" and "Blunderer" Defenses | |
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Summary | |
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Sexual Assault Under Duress and Fraud | |
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Sexual Assault Under Nonviolent Duress | |
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Sexual Assault by Fraud, Guile, or Deceit | |
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Criminalization of Sexual Assault by Duress and Fraud: A Reasonable Woman's Point of View | |
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A Caveat: Making the Changes Tenable | |
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Summary | |
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Reforming Rape Reforms: Outline of the Model Array | |
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Making the Changes: De Jure Law, Rules of Evidence, and Jury Instruction | |
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Crime Considerations | |
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Victim Considerations | |
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Offender Considerations | |
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Defense Considerations | |
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Summary | |
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Discussion of the Model Array | |
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Crime Considerations | |
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Victim Considerations | |
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Offender Considerations | |
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Defense Considerations | |
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Case Examples: Application of the Model Array | |
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Advantages of a Paradigm Shift | |
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Renewing Efforts | |
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The Model for Reforming Rape Reforms | |
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Political Climate and Backlash | |
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Political Will | |
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Recommendations Complementing the Model Rape Law | |
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Victims' Rights | |
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Police and Prosecutors | |
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Plea Bargaining | |
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Jurors | |
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Judges | |
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Criminal Justice Training | |
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Compliance | |
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Equal Protection? | |
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A Victim's Attorney: Lessons from Abroad | |
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Moving Forward: Social Institutions, Structures, and Processes | |
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Media | |
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Education | |
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Conclusions | |
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Notes | |
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References | |
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Index | |