Rape Beyond Crime

67 Pages Posted: 4 Mar 2016 Last revised: 17 Apr 2017

See all articles by Margo Kaplan

Margo Kaplan

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: March 1, 2016


Public health experts agree that sexual violence constitutes a significant public health issue. Yet criminal law dominates rape law almost completely, with public health law playing at best a small supporting role. This Article inverts that dynamic. It argues that, without broader cultural changes, criminal law faces a double bind: rape laws will either be ineffective or neglect the importance of individual culpability. Recent civil law developments, such as university disciplinary proceedings, similarly fixate on how to best find and penalize perpetrators. As a result, rape law continues to spin its wheels in the same arguments and obstacles.

Public health law provides more promising terrain: a strong, prevention-based legal framework that can engage the complex causes of rape, including the social norms that promote sexual aggression. While criminal law can only punish bad behavior, public health interventions can use the more effective prevention strategy of promoting positive behaviors and relationships. They can likewise address the myriad sexual behaviors and social determinants that increase the risk of rape but are outside the scope of criminal law. Perhaps most importantly, public health law relies on evidence-based interventions and the expertise of public health authorities to ensure laws and policies are effective.

Transforming rape law in this way provides a framework for legal feminism to undertake the unmet challenge of “theorizing yes.” Criminal law is simply incapable of meeting this challenge because it concerns only what sex should not be. In contrast, a public health framework can explore positive models of sex. It provides the law a richer role in addressing the full spectrum of sexual attitudes and behaviors.

Keywords: Rape, Sexual Assault, Criminal Law, Public Health

Suggested Citation

Kaplan, Margo, Rape Beyond Crime (March 1, 2016). 66 Duke Law Journal 1045 (2017), Available at SSRN: https://ssrn.com/abstract=2736565

Margo Kaplan (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

Newark, NJ
United States

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