NCJ Number
151988
Journal
Columbia Law Review Volume: 92 Issue: 7 Dated: (November 1992) Pages: 1780- 1809
Date Published
1992
Length
30 pages
Annotation
The conjunction of force and breaking the will, which remains the law throughout the United States, implies that ultimate consent to sex can negate criminal liability for associated violence, that nothing short of violence to break the victim's will can constitute a crime, and that the degree of violence used by the rapist to break the victim's will is of marginal importance.
Abstract
In reviewing rape law, consideration is given to the meaning and value of sexual autonomy, sexually motivated assault, and sexual expropriation. Consent is viewed as a key issue in sexual assault and rape laws, and the author suggests that society may need to view rape as an offense against the victim's property interest in control over his or body for sexual purposes. By defining sexual assault offenses exclusively by references presented by the defendant to the victim, consent to sex may need to be taken out of sexual assault and rape laws. Excising consent to sex from laws may make rape shield laws honest rules of relevance instead of privileges transparently disguised. Further, distinguishing sexual autonomy and freedom from violence may make sexual assault laws clearer for those who desire sex, more protective of those who refuse sex, and fairer to those accused of having culpably obtained sex. In general, the author's thesis is that legislatures should replace the independent crime of rape with new statutory offenses that more clearly and justly define criminal liability for culpable conduct aimed at causing other individuals to engage in sexual acts. A model sex offense statute is appended that is based on sexually motivated assault and expropriation. 75 footnote