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Rape

NCJ Number
107921
Journal
Yale Law Journal Volume: 95 Issue: 6 Dated: (May 1986) Pages: 1087-1184
Author(s)
S Estrich
Date Published
1986
Length
98 pages
Annotation
Considering rape within the criminal law tradition shows clearly the sexism of the law and raises broader questions about the way conceptions of gender and the different backgrounds and perspectives of men and women should be encompassed within the criminal law.
Abstract
The criminal law defines rape through the court decisions, laws, and the workings of the criminal justice system. In each area of the law, different types of rape are identified, ranging from 'real rape' involving a stranger and violence or a threat of violence to rapes involving acquaintances or no violence and in which the view of the criminal justice system is often that no crime has occurred and that the fault belongs with the woman. All these views show how the law has reflected, legitimized, and enforced a view of sex and women that celebrates male aggressiveness and punishes female passivity. For 'real rapes' involving strangers, corroboration, cross-examination, and other obstacles have been eliminated for victims. However, victims of nontraditional rapes do not fare as well. Clearer legal definitions are needed of the terms 'force,' 'threats,' and 'consent.' Consent should be defined so that 'no' means 'no.' 'Force' or 'coercion' that negates consent should be defined to include extortionate threats and deceptions of material fact. Proof will still be required for a conviction, but changing the substantive law would announce to society our condemnation of coerced and nonconsensual sex. 336 footnotes and discussions of specific cases.

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