Consent, Rape and the Criminal Law

The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna Williams, eds.), Oxford University Press, 2021 (Forthcoming)

25 Pages Posted: 10 Sep 2020

See all articles by Katharine K. Baker

Katharine K. Baker

Chicago-Kent College of Law - Illinois Institute of Technology

Michelle Oberman

Santa Clara University - School of Law

Date Written: August 18, 2020

Abstract

The story of US criminal rape law reform tends to be told as one of remarkable feminist success (between 1970–1990, feminist-led coalitions changed state laws so that rape ceased to be a crime requiring force and resistance and became instead a crime that only required sex without consent) followed by widespread stagnation. Despite comprehensive changes in the law, reporting rates, prosecution rates and conviction rates for rape increased only slightly. This essay resists that binary account of success and failure by offering a more nuanced assessment. First, it explores the full range of factors hindering the reporting, prosecution and conviction of rape crimes, including the role played by social norms. Second it argues that, by changing rape’s definition to an inquiry focused upon whether the victim consented, the law has facilitated a shift in cultural and institutional norms governing unwanted sex. In short, the law’s message that unwanted sex is wrong matters. It is naïve to think that a change in law would, on its own, end rape culture. But there is ample evidence to support the conclusion that rape law reform has played a central role in reducing society’s tolerance of the rape prerogatives that have held sway for millennia.

Keywords: rape, sexual assault, consent, feminism. sexual harassment, criminal law

Suggested Citation

Baker, Katharine K. and Oberman, Michelle, Consent, Rape and the Criminal Law (August 18, 2020). The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna Williams, eds.), Oxford University Press, 2021 (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3676737 or http://dx.doi.org/10.2139/ssrn.3676737

Katharine K. Baker (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States
312-906-5391 (Phone)
312-906-5280 (Fax)

Michelle Oberman

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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