48 Pages Posted: 15 Apr 2011 Last revised: 2 Feb 2012
Date Written: April 15, 2011
In bedrooms and back alleys, at parties, in offices, and within families: rape happens, rape is real. At this very moment, there are approximately twenty million women in the United States who have been raped during their lifetime, and in one year, over one million women are raped in the United States. The numbers are staggering, but not unfamiliar. One in four women are victims of attempted or completed rape in the United States.
Despite the devastating and continued prevalence of rape in the United States, estimated state rape conviction rates are as low as two to nine percent of total instances of rape (reported and unreported). At the state level, a local robber is thirty percent more likely to be convicted than a rapist, and a rape prosecution is twice as likely to be dismissed vis-à-vis a murder prosecution. Similarly, federal conviction rates for non-rape crimes, such as immigration and narcotics crimes, average as high as ninety-six percent. In effect, the rift between the widespread perpetration of rape and sexual assault and the minimal prosecution and conviction of rapists questions the commitment and priority of law enforcement, lawmakers, courts, and the public in treating rape as seriously before the law as it is treated in name. If rape is serious, why don’t we take rape prosecution seriously?
In the 1980s, rape reform advocates predicted that rape law reforms would create instrumental changes — namely, higher rates of investigation, prosecution, and conviction for rape crimes. Continuously low conviction rates in the United States, however, indicate that instrumental change has not occurred and that adequate investigation and prosecution of rape is an illusion. While legal scholars and advocates have raised the issue of impunity for rape and sexual assault crimes in the past, forty years after the emergence of the rape law reform movement in the United States and more than fifteen years after the passage of the Violence Against Women Act (“VAWA”), it is important to reexamine the progress or stagnancy of rape impunity in the United States in order to devise new ways to tackle an old problem.
This Article identifies and challenges the incongruity between the purportedly accepted gravity of rape crimes and the pervasive continuance of rape impunity in the United States. This Article argues that rape should be considered a form of slavery prohibited by the Thirteenth Amendment of the Constitution, allowing for the creation of a federal criminal regime to prosecute and prioritize rape in conjunction with state regimes.
Part I presents the problem of local or state rape tolerance through the improper legal conceptualization of rape and the inadequate investigation and prosecution of rape crimes. Discussing the problematic consequences inherent in local rape law, Part I highlights the grading of rape that defines legitimate rape as rape-and or rape-plus and marginalizes “mere” rape as rape-alone or rape-lite, with the latter as less deserving of prosecution than the former. Part I also reveals that neither rape-and nor rape-alone crimes are adequately investigated or prosecuted.
Part II discusses federal rape tolerance by comparing the Supreme Court’s incongruent maximization of congressional authority for the longstanding federal crimes of mail fraud and extortion alongside the Court’s minimization of violence against women as a local problem. The purposes of this Part are threefold: to explain the current status of rape in U.S. federal law; to compare rape to widely accepted federal crimes; and to reveal federal rape tolerance in the fictional and inconsistent limits of congressional authority advanced by the Court.
Part III explores the prospect of federal rape law. Examining the broad intentions and application of the Thirteenth Amendment, Part III challenges Congress’s hesitancy to advance federal anti-rape laws under the Thirteenth Amendment and argues that rape falls within, and is prohibited by, the Thirteenth Amendment. Rape is slavery. While the idea that the Thirteenth Amendment might apply to rape will undoubtedly strike some readers as “novel, if not farfetched,” this Article “ask[s] these readers for patience and remind[s] them that, for example, only a generation ago, the ideas that abortion and pornography implicate equality rights for women — ideas now widely held — were seen by many as similarly novel and farfetched.” Part III also applies and incorporates rape as slavery to existing federal civil rights legislation, concluding with an assessment of the necessity, practical advantages, and challenges involved in the prospective implementation of federal rape law.
In order to construct and prosecute rape in a manner consistent with its purported gravity, rape must be effectively prosecuted, prohibited, and abolished under the Thirteenth Amendment. Continued federal rape tolerance or federal inaction against rape impunity stems from an unwillingness rather than an inability to intervene. Federal inaction against rape is a constructed choice, not an inevitability.
Keywords: Rape, Violence Against Women, Gender-Motivated Violence, Slavery, Thirteenth Amendment, Federal Criminal Law, Rape Tolerance, Hate Crimes, United States v. Morrison
Suggested Citation: Suggested Citation
Kim, Jane, Taking Rape Seriously: Rape as Slavery (April 15, 2011). Harvard Journal of Law and Gender, Vol. 35, No. 263; Columbia Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=1810948