Rape On and Off Campus

45 Pages Posted: 30 Oct 2014 Last revised: 3 Oct 2015

Date Written: March 1, 2015

Abstract

The need for institutional reform to address the problem of sexual assault, particularly on college campuses, is widely acknowledged. Unnoticed, however, is a profound disconnect between cultural norms around sex and the legal definition of rape. The Model Penal Code and a majority of states still retain a force requirement, effectively consigning most rape — that is, non- stranger rape — to a place beyond law’s reach. Of special concern, the dominant statutory approach misconceives or overlooks entirely the role of consent, which has become central to popular and political discourses around sexual assault. In the midst of increasing moves on campus to codify affirmative consent standards (“yes means yes”), rape law remains mired in an archaic view of consent as rather beside the point. This Article recasts the significance of law’s preoccupation with force by introducing a taxonomy of cases in which force and non-consent tend to diverge. The no-force/no-consent cases raise a question critical to ongoing reform efforts: does the absence of consent make sex rape? Outside of law, this inquiry has for the most part been resolved; what remains is to reconcile competing interpretations of consent’s meaning. In stark contrast, the criminal justice system’s treatment of non- stranger rape reflects a doctrine woefully out of step with modern conceptions of sex. Sexual agency provides the theoretical underpinning needed to close this gap.

Keywords: rape, campus rape, consent, sexual norms

JEL Classification: K10, K19, K39

Suggested Citation

Tuerkheimer, Deborah, Rape On and Off Campus (March 1, 2015). 65 Emory Law Journal 1 (2015); Northwestern Public Law Research Paper No. 14-53. Available at SSRN: https://ssrn.com/abstract=2515905 or http://dx.doi.org/10.2139/ssrn.2515905

Deborah Tuerkheimer (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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