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Abstract:
This Article begins with a discussion of the prompt complaint requirement, corroboration requirement, and cautionary instructions in the criminal law of rape. These doctrines have greatly weakened in the formal criminal law of the fifty states and the District of Columbia because studies reveal that most victims of rape do not promptly complain to the police or other authorities, most rapes do not produce corroborating evidence, and most jurors are already cautioned by an underlying societal bias against those who claim rape.

The Article then identifies the emergence of prompt complaint, corroboration, and caution in campus sexual assault policies and practices. It analyzes the current policy at Harvard College, surveys other colleges' and universities' formal policies and informal practices, and explains why campuses would adopt discredited rules from the criminal law in their own disciplinary procedures. The Article then proposes a method to free disciplinary proceedings from the legacy of the prompt complaint requirement, corroboration requirement, and cautionary instructions and proposes model campus sexual assault provisions to effectuate this goal.

Discrimination, criminal law, criminal procedure, rape

Abstract:
Historically, a rape defendant at trial could offer evidence that the complainant was previously unchaste in order to discredit her testimony. Professor Michelle Anderson calls the conditioning of a rape victim's vindication on her sexual virtue the "chastity requirement" in rape law. By the early 1980s, almost every jurisdiction in this country had passed a rape shield law, which curtailed defendants' ability to admit complainants' sexual histories. Too often, however, Anderson argues, these legal shields function as sieves, particularly in acquaintance rape cases when the complainant is deemed promiscuous. Crucial holes in shields admit sexual history evidence when the complainant has been intimate with the defendant before, when the defendant claims that he held a reasonable but mistaken belief as to her consent, or when the complainant has previously engaged in a pattern of sexual conduct, prostitution, or other promiscuity. Anderson contends that rape shields have failed to defend these women because the law has maintained crucial aspects of the chastity requirement. It is time for the law to reject the ancient norms of that requirement fully, Anderson argues, and to embrace, instead, a sexuality license, which would protect rape complainants from suffering the negative legal consequences that follow judgments about their prior sexual lives. Anderson proposes a new rape shield statute designed to end the continued admission of irrelevant and prejudicial evidence of the complainant's sexual history in rape trials and to vindicate the new norms of the sexuality license.

Abstract:
"Negotiating Sex" is a response to the two major proposals for rape law reform in legal scholarship today, as well as a proposal for a third way. Susan Estrich and Donald Dripps argue that sexual penetration should be legal unless the victim expresses her non-consent, a proposal I call the "No Model." Stephen Schulhofer argues that sexual penetration should be illegal unless the defendant obtains affirmative consent for penetration through the victim's words or conduct, a proposal I call the "Yes Model." Under this model, according to Schulhofer, if a woman does not say "no," and "her silence is combined with passionate kissing, hugging, and sexual touching," one may "infer actual willingness" based on her nonverbal conduct.

Both the No and the Yes Models of rape law reform fail to account for important empirical realities. First, the lived experience of sexual trauma often includes physical paralysis and mental dissociation, which cut a victim off from her ability to object to penetration. Second, men often misinterpret women's body language, seeing erotic innuendo and sexual intent where there is none, which impedes their ability to surmise consent accurately. Third, people often substitute sexual petting for penetration as a way to limit the health risks of sexually transmitted diseases and pregnancy posed by penetration. It makes no sense, therefore, to "infer" consent to penetration from "passionate kissing, hugging, and sexual touching."

I propose that rape law abandon the notion of consent. In its place, the law should require negotiation - conversation and mutual agreement - between partners before sexual penetration occurs. Negotiation would require a communicative exchange about whether partners want to engage in sexual intercourse. The Negotiation Model requires communication that is verbal unless partners have established a context between them in which they may accurately assess one another's nonverbal behavior. The verbal communication must be such as would indicate to a reasonable person that sexual penetration has been freely and explicitly agreed to.

rape, sexual assault, rape definition, rape reform, negotiating sex, sexual miscommunication, sexual misconduct, verbal sexual consent, nonverbal sexual consent

Abstract:
Section 13981 of the Violence Against Women Act gave victims of criminal violence motivated by gender animus the opportunity to lodge civil complaints against their attackers in federal court. In United States v. Morrison the United States Supreme Court struck down Section 13981 as unconstitutional because, inter alia, Congress lacked the authority to enact it under Section Five of the Fourteenth Amendment. In its decision, Professor Anderson argues, the Court failed to consider the full scope of state action regarding violence against women that violates Section One of the Fourteenth Amendment.

States deter women from turning to their authority because of the unequal protection they offer against crimes motivated by gender animus. For example, the traditional legal rules for rape complaints - the marital rape exemption and the requirements of utmost resistance, corroboration, and prompt complaint - were grounded in gender bias. Although these rules have been formally ameliorated in the past twenty-five years, the biased imperatives behind them continue to direct the discretionary decisions of police and prosecutors today. When a woman fails to resist her attacker forcefully enough, succumbing without a fight that would create corroborative evidence, or fails to complain promptly enough, or is unlucky enough to be assaulted by her husband or boyfriend, she has little chance of obtaining a conviction. Police often discourage women from proceeding with these complaints. For those who do wish to proceed, police disproportionately code these rapes as "unfounded" or place them in non-criminal codes where they receive little to no investigation. For those complaints that are investigated seriously, prosecutors disproportionately dismiss these cases. Through these discretionary decisions, state actors deny women who are raped the equal protection of the criminal law.

In response to such state action, Anderson argues, women have little to no faith in the formal structures of police power to remedy gender-motivated violence. When states' violations of Section One of the Fourteenth Amendment deter women from turning to the public system of criminal justice for relief, Congress must have the authority under Section Five to provide women a legal remedy in the form of civil claims against private actors. Only if Section Five authorizes this remedial help will the Fourteenth Amendment redress the true scope of state malfeasance regarding violence against women.

Abstract:
Today, to one degree or another, marital immunity for sexual offenses persists in over half the states. Underlying the marital rape immunity has been the assumption that when a woman enters into a marriage, she is giving her ongoing consent to sexual intercourse. Professor Michelle Anderson argues that states must abolish this immunity to make the law formally neutral on the marital status of the parties. However, Professor Anderson argues, such formal neutrality is insufficient. The ideology of ongoing consent underlying the marital rape immunity has infected the way the legal system treats sexual offenses among intimates who are not married. The legal system often assumes that ongoing consent also exists between non-married intimates. Professor Anderson argues against the ideology of ongoing consent in both settings and proposes a new, single rule: evidence of a past or continuing sexual relationship between the complainant and the defendant is not itself a defense to a criminal sexual offense and, by itself, does not prove consent to the sexual act.

rape law, marital immunity, marital rape immunity, intimates, criminal sexual offense

Abstract:
Although the rapes that prostitutes suffer are especially frequent and violent, prostitutes rarely report having been attacked to police and, when they do, those reports rarely end in convictions of their attackers. One reason for this low conviction rate is the admission of evidence of the complainant's prior prostitution at trial to prove that she consented to the sexual intercourse alleged to have been rape. Some courts hold that such evidence is admissible when the defendant claims that what happened on the instance in question was an act of prostitution. Other courts hold that it is inadmissible unless it proves the victim's bias or a motive to fabricate a claim of rape. Still other courts hold that it is inadmissible unless it reveals prior threats to retaliate against a customer.

Criminal Law, Criminal Procedure, Discrimination