Volume 55
Issue 2
Spring '18

A New Mens Rea for Rape: More Convictions and Less Punishment

Written By: Kari Hong


In what is now the “Post-Weinstein era,” victims of sexual assault and harassment are finally being believed. As much as this is overdue, in the context of rape, simply believing victims will not be enough to fix endemic problems arising in how rape is defined, prosecuted, and punished. This Article grapples with two problems presented by contemporary prosecutions of acquaintance rape. The first problem is that it is too difficult to obtain a conviction for rape under existing definitions of the crime: of every 1000 rapes that are estimated to occur, seven will result in a conviction. By contrast, of every 1000 estimated robberies, twenty-two will result in a conviction. Of every 1000 estimated assault and batteries, forty-one result in conviction. Stated another way, reported rapes are convicted at only 1/3 of the rate of robberies and 1/6 the rate of assaults. This discrepancy is odd because a rapist is known to the victim in approximately 80% of the attacks, and the robber is known to the victim in approximately 25% of those crimes. Knowing the identity of one’s assailant should make the conviction rate for rape higher than that of robberies and assaults; the fact that it does not suggests that something is amiss in how rape is legally defined.

When discussing rape, this Article focuses exclusively on what people think of as acquaintance rapes. All states have an aggravated form of rape, usually defined as a situation with an offender using a weapon, the victim being a child, or both. For clarification, aggravated rape is not the subject of this Article. This Article is focused on rape without these aggravating circumstances, defined as the crime involving one adult (usually a man) who engages in sexual contact with another adult (usually a woman) who did not intend or desire to have the sexual contact. Limiting an inquiry to just acquaintance rapes is not misplaced because approximately 80% of all rapes that occur are committed by people known to the victim.

The second problem is that when a rapist is convicted, the offender is subjected to excessive and disproportionate punishment. Although convictions are rare, when they occur, an offender is punished with a prison term approximately 95% of the time, which is more than double than the approximate 40% rate of prison sentences that other convicted felons serve. These prison sentences are lengthy: over 1/3 of all states (nineteen to be precise) authorize maximum sentences of life terms for rape; twelve states have minimum sentences for rape that start at ten years or more. Although comprehensive national sentencing data is not collected, where information is known, actual prison terms range from eight to thirty years long. By contrast, other Western countries punish the same criminal acts with much shorter prison sentences that are between one and seven years in length. These two problems share a common solution: reforming rape law to increase the numbers of those who are convicted, but also, reduce the length of incarceration and include science-based treatment that other countries successfully use to cure  offenders. Increasing convictions will never be enough to mete out justice. Only when sentences are fair, shorter, and effective can the most amount of offenders be held accountable.

As a practical matter, a state legislature must clearly define a crime by using elements, which enumerate the discrete conduct (actus reus) and mental state (mens rea) that an actor must engage in to be prosecuted. As set forth in Part I, the crime of rape, by contemporary standards, is the social harm of a person having unwanted sex with another. But, due to sexism, the vast majority of states fail to define the crime of rape in this manner.

Rather, forty-five states and the District of Columbia require rape to be prosecuted if the unwanted sex also has an additional element of force. Referred to here as “rape by force,” the reason for the additional element arises from sexist origins: rape was not initially understood as a crime involving unwanted sex. Instead, the crime originally was prosecuted to aggrieve the honor of the father or husband of a violated woman rather than as redress for the harm a woman who had been raped experienced.

In addition, in the United States, up until the 1960s, all sex outside of marriage was a crime. The element of force was necessary to separate rape from the crimes of adultery (sex with a married person) and fornication (sex outside of marriage), which the victim would be confessing to when reporting the rape. The crime of rape then was never developed to respond to the social harm of unwanted sex. The contemporary definition of rape by force reflects this limitation, being unable to reach all forms of unwanted sex instead of unwanted sex accompanied by weapons and violence.

Through reform efforts that began in the 1980s, rape was redefined to be a crime without force and with an actus reus of consent, or technically non-consent. As a result, thirty-six jurisdictions now include an element of non-consent, often supplementing their definitions of rape by force with non-consent as an alternative means to violate the statute. Referred to here as “rape by non-consent,” the legal definition still fails to define a large amount of unwanted sex as criminal conduct. Only eight jurisdictions define rape exclusively as sex with another without the person’s consent. Rather, twenty-eight of these thirty-six jurisdictions qualify and condition the element of non-consent to specific circumstances such as the parties’ age, employment status, or state of intoxication.

Although rape defined by a lack of consent should have expanded the actionable types of unwanted sex, in reality, it too has been rendered underinclusive by sexism. Men’s fears of false accusations stunted the reach of rape defined by non-consent to arise only in codified power imbalances (where the offender is a state officer or medical professional with power over the victim) or when the victim is incapable of giving consent (most often defined as mental disability or impairment and more recently intoxication).

More contemporary efforts at reforms, including rape by affirmative consent and rape by intoxication, also do not reach the social harm of unwanted sex. These reforms present an additional overinclusive problem of proscribing sex based on a failure to communicate or a failure of sobriety, which can occur when the parties are engaged in what both consider consensual intimacy.

When thinking about criminal law, many think of non-vagueness and nonretroactivity as bedrock principles. However, it is actually the criminal law’s evolution that has given it the most legitimacy. Horseless carriages forced states to update manslaughter statutes to apply to drivers. Computers challenged states to develop hacking offenses. It is now time for rape too to reflect contemporary norms of unwanted sex when defining sex crimes, free from the lens of sexist presumptions of conduct, behavior, and entitlements.

As set forth in Part I, the existing definitions of rape that focus on actus reus fail to define the social harm of unwanted sex as a crime. Accordingly, Part II then sets forth a proposed offense of a “rape by malice” that has an actus reus of non-consent and a mens rea of malice. The preliminary value of this proposed new crime is that it more effectively targets unwanted sex as the definition of actionable rape. In the book Missoula, Jon Krakauer interviewed a juror about her reasons for acquitting a rapist under Montana’s definition of rape, which is one of the eight states that defines rape in its broadest reach as sex without the consent of another. An important insight from this interview is that even when rape is defined broadly, the mens rea of knowledge requires proof that the defendant in fact knew he was having sex without his partner’s consent. When framed in this manner, it is possible for the jury to both believe a woman’s testimony that she was raped but not have evidence that the defendant knew the victim was not consenting. The proposed crime of rape by malice responds to this problem.

Affirmative knowledge is one of the most difficult mental states to prove in criminal law. The crimes of larceny and homicide have avoided this roadblock by evolving into myriad offenses (larceny by trick, embezzlement, vehicular homicide, murder by malice) that consider sophisticated and varied mental states. But rape has not adopted more nuanced mental states, which is a glaring omission. Malice is a legal term of art that is more than simply a desire to inflict harm on another. In the homicide context, malice is a capacious term that captures the mental state that arises when someone intentionally wants to kill another, recklessly causes the death of another, or acts with “an abandoned and malignant heart,” with such extreme indifference towards human life that she has no regard over whether her conduct harms another. Although thoughtful scholars have argued that the term malice is too vague, unworkable, or implicates character instead of conduct, those criticisms do not arise from the prosecutors, defendants, and judges that use that term each and every day to effectively adjudicate the thousands of homicide cases in common law jurisdictions. To the contrary, the mens rea of malice has resulted in murder convictions for socially contemptuous conduct that would have otherwise not been prosecuted or prosecuted only for negligent or vehicular manslaughter.

One example is the Knoller case involving a woman who owned a vicious and uncontrollable 150-pound dog, unhabituated to humans, who attacked others, and lived with this dog in a residential apartment building in San Francisco. The dog attacked and killed a neighbor. In the immediate aftermath, the dog owner returned to the crime scene, not to call 911 or check on the victim, but to look for lost keys. Another is Fleming, in which a drunk driver with a 0.315 blood alcohol level who, akin to the Frogger video game, drove against rush hour traffic up to 80 mph in a 45 mph zone before killing a person in a head-on collision. In both instances, malice expanded the reach of murder to also include killings that arose from people who held contempt for the safety and well-being of others.

As applied to the crime of rape, the value of the malice mens rea is that it is nimble enough to capture rapes arising from a defendant’s deliberate plan to engage in sex without the victim’s consent, reckless disregard of risk that he is having sex without the victim’s consent, and extreme indifference over whether he is having sex without the consent of victim. It also includes evidence after the encounter to gauge if the accused had a malignant heart when engaging in sexual conduct. Like the dog owner in Knoller, whose disinterest in calling 911, lack of inquiry about the victim, and return to the crime scene to look for her keys all helped prove inferences that she held the same extreme indifference toward the well-being of victim before the dog attack, so too can evidence of how a man acts after a sexual encounter prove whether he knew or cared if the encounter was consensual or not. For example, in the famous rape case profiled in Missoula, would the college quarterback also have been acquitted if the jury was directed to consider factors such as the fact that he abruptly ended the sexual encounter without any efforts to kiss, cuddle, or provide her with sexual gratification, actions consistent with consensual activity? Or why, after weeks of endless texts with the woman, did the quarterback suddenly cease all communication after their sexual encounter? The mens rea of malice would direct the jury to consider whether the defendant’s indifference towards the victim’s well-being after their encounter was also evidence of indifference over whether the sex act was consensual when it was happening.

Rape by malice would more effectively police and convict those for engaging in unwanted sex than do current definitions of rape. As a result, more rapists will be convicted. But under our current punishment practices, punishing more rapists must give us pause. In 1897, Oliver Wendell Holmes stressed “we must consider the criminal rather than the crime.” Part III attempts to do both. Our society is painfully aware of how our Tough-on-Crime era increased our prison population by 400% in only one generation. The United States has 5% of the world’s population and over 20% of the world’s prison inmates. It is widely recognized that mass incarceration has been too costly with respect to long prison sentences, the loss of human capital, the racial disparities in convictions, the financial toll of mass incarceration, and the ineffectual nature of prisons to stop crime.

Potential and actual sentences for rape are excessive. Nineteen states have maximum sentences of 99, 100 years, or life terms. Twelve states have minimum sentences that begin at ten years and range as high as twenty-five years. Although reliable and accurate statistics are hard to come by, where data has been made available, it shows that a person convicted of rape is sentenced to prison terms in approximately 95% of cases (as opposed to 40% for other felonies), and the length of those sentences are between eight and thirty years long. By contrast, countries in Western Europe impose a sentence for rape at lengths that are half to one-fifth these terms.

In reforming rape law, it is not naı¨ve or misguided then to recognize that lighter sentences have enormous value to society, victims, and defendants. This Article proposes a five-year maximum prison term for acquaintance rape. This proposed lighter sentence neither suggests that the crime of rape is not serious and worthy of serious consequences nor that the offender is not depraved. To the contrary, the reasons for this proposal arise from the following three factors that seek to hold more offenders accountable for rape:

First, lengthy prison terms may be causing more crime than whatever deterrence and incapacitation from prison time prevents. Nationally, state and federal governments spend $80 billion—each year—on maintaining prisons, an investment that results in three of every four prisoners reoffending within five years of being released. Are prisons simply an expensive means to maintain an unusually high prison population, or are efforts being made to rehabilitate? For those answering with the latter, rehabilitation is not advanced simply for the sake of saving the offender. The Republican-activist Koch Brothers have joined with left-leaning organizations to support criminal justice reform efforts. Whether motivated by money or morality, ending recidivism is more beneficial for all sectors in society.

The starting point in sentencing reform is the reality that 95% of all state prisoners are released when their sentences are over. State and federal jurisdictions that have successfully reduced recidivism have provided means for offenders to reattach to the community with jobs, family ties, community ties, and education. Lighter sentences increase the likelihood of maintaining positive community ties, which will in turn reduce the cost of incarceration and repeat offenders. A criminal sentence cannot just be an outlet of community outrage—the pitchforks and torches of yore—but must meaningfully engage the societal goods of rehabilitation of the wrongdoer and include post-conviction reintegration into the community.

Second, efforts to reform rape laws are being stalled without penal reforms. The American Law Institute—an elite and influential group of judges, attorneys, and law professors—created the Model Penal Code, a set of proposed crimes. Although there is varying influence on any given proposed crime and defense, every state has adopted some aspect of the Model Penal Code at least in part, and about half of all states have adopted it to a large degree. Despite the Model Penal Code being heralded as a thoughtful and influential code, its definition of rape (first created in 1962 and reformed in 1980) is laden with sexist and limited definitions. Over a dozen years ago, Professor Deborah Denno, among others, criticized this definition in detail and called for “the Model Penal Code’s sexual offense provisions . . . be pulled, revised, and replaced.” On its own website, the American Law Institute recognizes these limitations, cautioning readers that its model definition of rape is “outdated and no longer a reliable guide for legislatures and courts.” Despite this remarkable internal rebuke, in May 2017, members of the American Law Institute again failed to agree on how to reform its definition of rape. A sizeable number of experts resisted reform because improving the definition of rape would lead to more convictions, which creates a larger social problem of mass incarceration without an end in sight. Combining sentencing reforms alongside statutory reforms then is neither misguided nor overly ambitious. To the contrary, because our prisons are at the breaking point, discussing any reform to conviction rates without addressing the penological consequences is myopic at best. Rape by malice then strives to both provide a better definition of the crime and a meaningful attempt to redress what is the best punishment for the offenders, victims, and society.

Third, it is not unreasonable to attribute the low rate of rape convictions, at least in part, to jurors’, prosecutors’, and victims’ concerns about overpunishment. There are of course instances of acquaintance rape in which the facts of the case, on their face, are despicable and revealing of a predatory and craven offender. But there are other instances, too, that arise from more ambiguous circumstances of intoxication or which involve an offender who committed a harm animated from confusion and stupidity. In all scenarios, a reasonable juror or prosecutor might pause in seeking a conviction, even though the criminal conduct is morally reprehensible, because of the excessive punishment that often comes with that conviction.

Forty years ago, states had an analogous problem in figuring out the best punishment for a driver who killed another while operating a car. The crime could be punished with either misdemeanor offenses or involuntary manslaughter, which carried a sentence of twenty years. “[P]rosecutors faced with this choice hesitated to proceed on a manslaughter theory, even when the facts so warranted, because of the reluctance of jurors to convict fellow drivers on such a serious charge.” This recognition of this problem is significant because jurors often are not told of the potential sentence, or if they are, are routinely told to disregard it when deciding guilt. Nonetheless, policy makers properly diagnosed that jurors did not convict obviously guilty people to avoid excessive punishment. In response, state legislatures developed the crime of vehicular manslaughter that carried approximately two-year prison terms for the precise purpose of developing a crime that had serious consequences but not excessive prison terms that deterred convictions. So, too, can rape reformers learn that reducing punishment for rape can result in more convictions and be the needed reform that holds more wrongdoers accountable.

In some states, rape is punished with an actual prison term of thirty years, and in nineteen states, rape carries a maximum sentence of either 99 years, 100 years, or life. Those numbers need to be digested. A person convicted of second-degree murder is sentenced to between four to forty years in prison. Why is acquaintance rape often punished more harshly than murder? To the extent that concerns about overpunishment lead a single victim to not report, a prosecutor not to charge, and a juror not to convict, the sentence for a rape conviction must be reformed.

The 2016 conviction of Brock Turner, the Stanford swimmer who attacked an unconscious woman brought with it much attention and public outrage. Even though the conviction did not technically involve the charge of rape, the public believed it did and was outraged by what was seen as an over-privileged white man who received a “free pass” by getting a light sentence. The outrage arose in part because the sentencing judge spoke of Mr. Turner’s equities and sentenced him to what amounted to only a three-month prison term. Much has been written about the racial and class disparities arising from this sentence. But this Article asks, what if Brock Turner deserved this proverbial break? And what if the lesson learned should be that all acquaintance rapists must have the same opportunity for rehabilitation and reform—even when, and especially when, the acts are depraved, despicable, and worthy of unequivocal condemnation?

Many recoil at light sentences for rapists, on the assumption that a light sentence is letting a very bad person off. But it is a mistake to contend that the problem with mass incarceration starts and ends with drug offenders. Retribution for even the most craven of conduct is no longer a tenable option for prisons, prisoners, and the society that must reintegrate offenders. Moreover, national surveys of crime victims lend support to the policy goals of rehabilitation over lengthier sentences: 82% support “[i]ncreasing education and rehabilitation services for the people in the justice system.” Of the male crime victims, 87% attribute crime to alcohol and drug addiction or poor parenting; 81% of the female crime victims agree. Only 4% of all surveyed crime victims attribute “too few people in prison” as a cause of crime. In this respect, reforms to rape sentences must be accompanied by a call for more effective criminal justice intervention rather than simply incarceration and more of it. Instead of channeling outrage for the first rape, sentencing must also meaningfully seek to rehabilitate and prevent a second. This Article advances the normative position that a lighter sentence for acquaintance rape serves retribution, and just as importantly, serves the societal goals of ending crime by increasing convictions and reintegrating offenders who complete shorter sentences.

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