A Broken Windows Theory of Sexual Assault Enforcement
57 Pages Posted: 14 Mar 2017 Last revised: 16 Jun 2019
Date Written: March 11, 2017
The law of sexual assault is in an expressive crisis. Jurisdictions struggle with the conceptual shift from thinking of rape as forcible sex to a broader understanding that turns on the meaning of consent. Due to resource, evidentiary, and reporting problems there is a mis-match between the new substantive understanding of sexual assault and its actual enforcement. This has led to something of a cultural war by survivors and many women generally against the idea of “rape culture,” which runs the risk of categorizing all sexualized or gendered speech and much of male behavior as implicitly rape-supportive. This article proposes that lessons from broken windows policing can assist prosecutors in addressing the expressive gap between the law’s definition of sexual assault and the current realities of under-enforcement and victim disempowerment. I suggest that enforcement of existing laws against the lower level street harassment of women, on the occasions it already meets the elements of assault or sexual assault, will likely have two positive effects. First, while the efficacy of broken windows theory is hotly debated, to the extent that aggressive enforcement of lower level crimes of disorder does translate into a reduction in more serious offenses, more convictions for street harassment may result in a longer-term reduction in more serious sexual assaults that are much harder to detect and prove. Second, and perhaps more importantly, aggressive prosecution of even “harmless” non-consensual street harassment would help to resolve the expressive problems surrounding the law’s definition of non-consensual sex more broadly. This would combat — more concretely and less divisively — the norm of default access to female bodies than the amorphous, extra-legal critique of “rape culture” has thus far.
Keywords: sexual assault, rape, gender, harassment, criminal law
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