In what is now the \u201cPost-Weinstein era,\u201d victims of sexual assault and harassment\u00a0are finally being believed. As much as this is overdue, in the context of rape,\u00a0simply believing victims will not be enough to fix endemic problems arising in\u00a0how rape is defined, prosecuted, and punished. This Article grapples with two\u00a0problems presented by contemporary prosecutions of acquaintance rape. The first\u00a0problem is that it is too difficult to obtain a conviction for rape under existing\u00a0definitions of the crime: of every 1000 rapes that are estimated to occur, seven will\u00a0result in a conviction. By contrast, of every 1000 estimated robberies, twenty-two\u00a0will result in a conviction. Of every 1000 estimated assault and batteries,\u00a0forty-one result in conviction. Stated another way, reported rapes are convicted at\u00a0only 1\/3 of the rate of robberies and 1\/6 the rate of assaults. This discrepancy is odd\u00a0because a rapist is known to the victim in approximately 80% of the attacks, and\u00a0the robber is known to the victim in approximately 25% of those crimes. Knowing\u00a0the identity of one\u2019s assailant should make the conviction rate for rape higher than\u00a0that of robberies and assaults; the fact that it does not suggests that something is\u00a0amiss in how rape is legally defined.<\/p>\n
When discussing rape, this Article focuses exclusively on what people think of\u00a0as acquaintance rapes. All states have an aggravated form of rape, usually defined\u00a0as 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\u00a0focused on rape without these aggravating circumstances, defined as the crime\u00a0involving one adult (usually a man) who engages in sexual contact with another\u00a0adult (usually a woman) who did not intend or desire to have the sexual contact.\u00a0Limiting an inquiry to just acquaintance rapes is not misplaced because approximately\u00a080% of all rapes that occur are committed by people known to the victim.<\/p>\n
The second problem is that when a rapist is convicted, the offender is subjected\u00a0to excessive and disproportionate punishment. Although convictions are rare,\u00a0when they occur, an offender is punished with a prison term approximately 95% of\u00a0the time, which is more than double than the approximate 40% rate of prison\u00a0sentences that other convicted felons serve. These prison sentences are lengthy:\u00a0over 1\/3 of all states (nineteen to be precise) authorize maximum sentences of life\u00a0terms for rape; twelve states have minimum sentences for rape that start at ten years or more. Although comprehensive national sentencing data is not collected,\u00a0where information is known, actual prison terms range from eight to thirty years\u00a0long. By contrast, other Western countries punish the same criminal acts with\u00a0much 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\u00a0numbers of those who are convicted, but also, reduce the length of incarceration\u00a0and include science-based treatment that other countries successfully use to cure\u00a0\u00a0offenders. Increasing convictions will never be enough to mete out justice. Only\u00a0when sentences are fair, shorter, and effective can the most amount of offenders be\u00a0held accountable.<\/p>\n
As a practical matter, a state legislature must clearly define a crime by using\u00a0elements, which enumerate the discrete conduct (actus reus) and mental state\u00a0(mens rea) that an actor must engage in to be prosecuted. As set forth in Part I, the\u00a0crime of rape, by contemporary standards, is the social harm of a person having\u00a0unwanted sex with another. But, due to sexism, the vast majority of states fail to\u00a0define the crime of rape in this manner.<\/p>\n
Rather, forty-five states and the District of Columbia require rape to be\u00a0prosecuted if the unwanted sex also has an additional element of force. Referred\u00a0to here as \u201crape by force,\u201d the reason for the additional element arises from sexist\u00a0origins: rape was not initially understood as a crime involving unwanted sex.\u00a0Instead, the crime originally was prosecuted to aggrieve the honor of the father or\u00a0husband of a violated woman rather than as redress for the harm a woman who had\u00a0been raped experienced.<\/p>\n
In addition, in the United States, up until the 1960s, all sex outside of marriage\u00a0was a crime. The element of force was necessary to separate rape from the crimes\u00a0of 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\u00a0rape then was never developed to respond to the social harm of unwanted sex. The\u00a0contemporary definition of rape by force reflects this limitation, being unable to\u00a0reach all forms of unwanted sex instead of unwanted sex accompanied by weapons\u00a0and violence.<\/p>\n
Through reform efforts that began in the 1980s, rape was redefined to be a crime\u00a0without force and with an actus reus of consent, or technically non-consent. As a\u00a0result, thirty-six jurisdictions now include an element of non-consent, often\u00a0supplementing their definitions of rape by force with non-consent as an alternative\u00a0means to violate the statute. Referred to here as \u201crape by non-consent,\u201d the legal\u00a0definition still fails to define a large amount of unwanted sex as criminal conduct.\u00a0Only eight jurisdictions define rape exclusively as sex with another without the\u00a0person\u2019s consent. Rather, twenty-eight of these thirty-six jurisdictions qualify\u00a0and condition the element of non-consent to specific circumstances such as the parties\u2019 age, employment status, or state of intoxication.<\/p>\n
Although rape defined by a lack of consent should have expanded the actionable\u00a0types of unwanted sex, in reality, it too has been rendered underinclusive by\u00a0sexism. Men\u2019s fears of false accusations stunted the reach of rape defined by\u00a0non-consent to arise only in codified power imbalances (where the offender is a\u00a0state officer or medical professional with power over the victim) or when the\u00a0victim is incapable of giving consent (most often defined as mental disability or\u00a0impairment and more recently intoxication).<\/p>\n
More contemporary efforts at reforms, including rape by affirmative consent\u00a0and rape by intoxication, also do not reach the social harm of unwanted sex. These\u00a0reforms present an additional overinclusive problem of proscribing sex based on a\u00a0failure to communicate or a failure of sobriety, which can occur when the parties\u00a0are engaged in what both consider consensual intimacy.<\/p>\n
When thinking about criminal law, many think of non-vagueness and nonretroactivity\u00a0as bedrock principles. However, it is actually the criminal law\u2019s\u00a0evolution that has given it the most legitimacy. Horseless carriages forced states to\u00a0update manslaughter statutes to apply to drivers. Computers challenged states to\u00a0develop hacking offenses. It is now time for rape too to reflect contemporary\u00a0norms of unwanted sex when defining sex crimes, free from the lens of sexist\u00a0presumptions of conduct, behavior, and entitlements.<\/p>\n
As set forth in Part I, the existing definitions of rape that focus on actus reus fail\u00a0to define the social harm of unwanted sex as a crime. Accordingly, Part II then sets\u00a0forth a proposed offense of a \u201crape by malice\u201d that has an actus reus of\u00a0non-consent and a mens rea of malice. The preliminary value of this proposed new\u00a0crime is that it more effectively targets unwanted sex as the definition of actionable\u00a0rape. In the book Missoula<\/em>, Jon Krakauer interviewed a juror about her reasons for\u00a0acquitting a rapist under Montana\u2019s definition of rape, which is one of the eight\u00a0states 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,\u00a0the mens rea of knowledge requires proof that the defendant in fact knew he was\u00a0having sex without his partner\u2019s consent. When framed in this manner, it is\u00a0possible for the jury to both believe a woman\u2019s testimony that she was raped but\u00a0not have evidence that the defendant knew the victim was not consenting. The\u00a0proposed crime of rape by malice responds to this problem.<\/p>\n Affirmative knowledge is one of the most difficult mental states to prove in\u00a0criminal law. The crimes of larceny and homicide have avoided this roadblock by\u00a0evolving into myriad offenses (larceny by trick, embezzlement, vehicular homicide,\u00a0murder by malice) that consider sophisticated and varied mental states. But\u00a0rape has not adopted more nuanced mental states, which is a glaring omission.\u00a0Malice is a legal term of art that is more than simply a desire to inflict harm on\u00a0another. In the homicide context, malice is a capacious term that captures the\u00a0mental state that arises when someone intentionally wants to kill another, recklessly\u00a0causes the death of another, or acts with \u201can abandoned and malignant\u00a0heart,\u201d with such extreme indifference towards human life that she has no regard\u00a0over whether her conduct harms another. Although thoughtful scholars have\u00a0argued that the term malice is too vague, unworkable, or implicates character\u00a0instead of conduct, those criticisms do not arise from the prosecutors, defendants,\u00a0and judges that use that term each and every day to effectively adjudicate the\u00a0thousands of homicide cases in common law jurisdictions. To the contrary, the\u00a0mens rea of malice has resulted in murder convictions for socially contemptuous\u00a0conduct that would have otherwise not been prosecuted or prosecuted only for\u00a0negligent or vehicular manslaughter.<\/p>\n One example is the Knoller<\/em> case involving a woman who owned a vicious and\u00a0uncontrollable 150-pound dog, unhabituated to humans, who attacked others, and\u00a0lived with this dog in a residential apartment building in San Francisco. The dog\u00a0attacked and killed a neighbor. In the immediate aftermath, the dog owner\u00a0returned to the crime scene, not to call 911 or check on the victim, but to look for\u00a0lost keys. Another is Fleming<\/em>, in which a drunk driver with a 0.315 blood alcohol\u00a0level who, akin to the Frogger video game, drove against rush hour traffic up to 80\u00a0mph in a 45 mph zone before killing a person in a head-on collision. In both\u00a0instances, malice expanded the reach of murder to also include killings that arose\u00a0from people who held contempt for the safety and well-being of others.<\/p>\n As applied to the crime of rape, the value of the malice mens rea is that it is\u00a0nimble enough to capture rapes arising from a defendant\u2019s deliberate plan to\u00a0engage in sex without the victim\u2019s consent, reckless disregard of risk that he is\u00a0having sex without the victim\u2019s consent, and extreme indifference over whether he\u00a0is having sex without the consent of victim. It also includes evidence after the\u00a0encounter to gauge if the accused had a malignant heart when engaging in sexual\u00a0conduct. Like the dog owner in Knoller<\/em>, whose disinterest in calling 911, lack of\u00a0inquiry about the victim, and return to the crime scene to look for her keys all\u00a0helped prove inferences that she held the same extreme indifference toward the\u00a0well-being of victim before the dog attack, so too can evidence of how a man acts\u00a0after a sexual encounter prove whether he knew or cared if the encounter was\u00a0consensual or not. For example, in the famous rape case profiled in Missoula<\/em>,\u00a0would the college quarterback also have been acquitted if the jury was directed to\u00a0consider factors such as the fact that he abruptly ended the sexual encounter\u00a0without any efforts to kiss, cuddle, or provide her with sexual gratification, actions\u00a0consistent with consensual activity? Or why, after weeks of endless texts with the\u00a0woman, did the quarterback suddenly cease all communication after their sexual\u00a0encounter? The mens rea of malice would direct the jury to consider whether the\u00a0defendant\u2019s indifference towards the victim\u2019s well-being after their encounter was\u00a0also evidence of indifference over whether the sex act was consensual when it was\u00a0happening.<\/p>\n Rape by malice would more effectively police and convict those for engaging in\u00a0unwanted sex than do current definitions of rape. As a result, more rapists will be\u00a0convicted. But under our current punishment practices, punishing more rapists\u00a0must give us pause. In 1897, Oliver Wendell Holmes stressed \u201cwe must consider\u00a0the criminal rather than the crime.\u201d Part III attempts to do both. Our society is\u00a0painfully aware of how our Tough-on-Crime era increased our prison population\u00a0by 400% in only one generation. The United States has 5% of the world\u2019s\u00a0population and over 20% of the world\u2019s prison inmates. It is widely recognized\u00a0that mass incarceration has been too costly with respect to long prison sentences,\u00a0the loss of human capital, the racial disparities in convictions, the financial toll of\u00a0mass incarceration, and the ineffectual nature of prisons to stop crime.<\/p>\n Potential and actual sentences for rape are excessive. Nineteen states have\u00a0maximum sentences of 99, 100 years, or life terms. Twelve states have minimum\u00a0sentences that begin at ten years and range as high as twenty-five years. Although\u00a0reliable and accurate statistics are hard to come by, where data has been made\u00a0available, it shows that a person convicted of rape is sentenced to prison terms in\u00a0approximately 95% of cases (as opposed to 40% for other felonies), and the length\u00a0of those sentences are between eight and thirty years long. By contrast, countries\u00a0in Western Europe impose a sentence for rape at lengths that are half to one-fifth\u00a0these terms.<\/p>\n In reforming rape law, it is not na\u0131\u00a8ve or misguided then to recognize that lighter\u00a0sentences have enormous value to society, victims, and defendants. This Article\u00a0proposes a five-year maximum prison term for acquaintance rape. This proposed\u00a0lighter sentence neither suggests that the crime of rape is not serious and worthy of\u00a0serious consequences nor that the offender is not depraved. To the contrary, the\u00a0reasons for this proposal arise from the following three factors that seek to hold\u00a0more offenders accountable for rape:<\/p>\n First<\/em>, lengthy prison terms may be causing more crime than whatever deterrence\u00a0and incapacitation from prison time prevents. Nationally, state and federal\u00a0governments spend $80 billion\u2014each year\u2014on maintaining prisons, an investment\u00a0that results in three of every four prisoners reoffending within five years of\u00a0being released. Are prisons simply an expensive means to maintain an unusually\u00a0high prison population, or are efforts being made to rehabilitate? For those\u00a0answering with the latter, rehabilitation is not advanced simply for the sake of\u00a0saving the offender. The Republican-activist Koch Brothers have joined with\u00a0left-leaning organizations to support criminal justice reform efforts. Whether\u00a0motivated by money or morality, ending recidivism is more beneficial for all\u00a0sectors in society.<\/p>\n The starting point in sentencing reform is the reality that 95% of all state\u00a0prisoners are released when their sentences are over. State and federal jurisdictions\u00a0that have successfully reduced recidivism have provided means for offenders\u00a0to reattach to the community with jobs, family ties, community ties, and education. Lighter sentences increase the likelihood of maintaining positive community\u00a0ties, which will in turn reduce the cost of incarceration and repeat offenders. A criminal sentence cannot just be an outlet of community outrage\u2014the pitchforks\u00a0and torches of yore\u2014but must meaningfully engage the societal goods of rehabilitation\u00a0of the wrongdoer and include post-conviction reintegration into the\u00a0community.<\/p>\n Second<\/em>, efforts to reform rape laws are being stalled without penal reforms. The\u00a0American Law Institute\u2014an elite and influential group of judges, attorneys, and\u00a0law professors\u2014created the Model Penal Code, a set of proposed crimes. Although there is varying influence on any given proposed crime and defense,\u00a0every state has adopted some aspect of the Model Penal Code at least in part, and\u00a0about half of all states have adopted it to a large degree. Despite the Model Penal\u00a0Code being heralded as a thoughtful and influential code, its definition of rape (first\u00a0created in 1962 and reformed in 1980) is laden with sexist and limited definitions.\u00a0Over a dozen years ago, Professor Deborah Denno, among others, criticized this\u00a0definition in detail and called for \u201cthe Model Penal Code\u2019s sexual offense\u00a0provisions . . . be pulled, revised, and replaced.\u201d On its own website, the American\u00a0Law Institute recognizes these limitations, cautioning readers that its model\u00a0definition of rape is \u201coutdated and no longer a reliable guide for legislatures and\u00a0courts.\u201d Despite this remarkable internal rebuke, in May 2017, members of the\u00a0American Law Institute again failed to agree on how to reform its definition of\u00a0rape. A sizeable number of experts resisted reform because improving the\u00a0definition of rape would lead to more convictions, which creates a larger social\u00a0problem of mass incarceration without an end in sight. Combining sentencing\u00a0reforms alongside statutory reforms then is neither misguided nor overly ambitious.\u00a0To the contrary, because our prisons are at the breaking point, discussing any\u00a0reform to conviction rates without addressing the penological consequences is\u00a0myopic at best. Rape by malice then strives to both provide a better definition of\u00a0the crime and a meaningful attempt to redress what is the best punishment for the\u00a0offenders, victims, and society.<\/p>\n Third<\/em>, it is not unreasonable to attribute the low rate of rape convictions, at least\u00a0in part, to jurors\u2019, prosecutors\u2019, and victims\u2019 concerns about overpunishment.\u00a0There are of course instances of acquaintance rape in which the facts of the case,\u00a0on their face, are despicable and revealing of a predatory and craven offender. But there are other instances, too, that arise from more ambiguous circumstances\u00a0of intoxication or which involve an offender who committed a harm animated from\u00a0confusion and stupidity. In all scenarios, a reasonable juror or prosecutor might\u00a0pause in seeking a conviction, even though the criminal conduct is morally\u00a0reprehensible, because of the excessive punishment that often comes with that\u00a0conviction.<\/p>\n Forty years ago, states had an analogous problem in figuring out the best\u00a0punishment for a driver who killed another while operating a car. The crime could\u00a0be punished with either misdemeanor offenses or involuntary manslaughter, which\u00a0carried a sentence of twenty years. \u201c[P]rosecutors faced with this choice hesitated\u00a0to proceed on a manslaughter theory, even when the facts so warranted, because of\u00a0the reluctance of jurors to convict fellow drivers on such a serious charge.\u201d This\u00a0recognition of this problem is significant because jurors often are not told of the\u00a0potential sentence, or if they are, are routinely told to disregard it when deciding\u00a0guilt. Nonetheless, policy makers properly diagnosed that jurors did not convict\u00a0obviously guilty people to avoid excessive punishment. In response, state legislatures\u00a0developed the crime of vehicular manslaughter that carried approximately\u00a0two-year prison terms for the precise purpose of developing a crime that had\u00a0serious consequences but not excessive prison terms that deterred convictions. So, too, can rape reformers learn that reducing punishment for rape can result in\u00a0more convictions and be the needed reform that holds more wrongdoers accountable.<\/p>\n In some states, rape is punished with an actual prison term of thirty years, and\u00a0in nineteen states, rape carries a maximum sentence of either 99 years, 100 years,\u00a0or life. Those numbers need to be digested. A person convicted of second-degree\u00a0murder is sentenced to between four to forty years in prison. Why is acquaintance\u00a0rape often punished more harshly than murder? To the extent that concerns\u00a0about overpunishment lead a single victim to not report, a prosecutor not to charge,\u00a0and a juror not to convict, the sentence for a rape conviction must be reformed.<\/p>\n The 2016 conviction of Brock Turner, the Stanford swimmer who attacked an\u00a0unconscious woman brought with it much attention and public outrage. Even\u00a0though the conviction did not technically involve the charge of rape, the public\u00a0believed it did and was outraged by what was seen as an over-privileged white man\u00a0who received a \u201cfree pass\u201d by getting a light sentence. The outrage arose in part\u00a0because the sentencing judge spoke of Mr. Turner\u2019s equities and sentenced him to\u00a0what amounted to only a three-month prison term. Much has been written about\u00a0the racial and class disparities arising from this sentence. But this Article asks,\u00a0what if Brock Turner deserved this proverbial break? And what if the lesson\u00a0learned should be that all acquaintance rapists must have the same opportunity for\u00a0rehabilitation and reform\u2014even when, and especially when, the acts are depraved, despicable, and worthy of unequivocal condemnation?<\/p>\n Many recoil at light sentences for rapists, on the assumption that a light sentence\u00a0is letting a very bad person off. But it is a mistake to contend that the problem with\u00a0mass incarceration starts and ends with drug offenders. Retribution for even the\u00a0most craven of conduct is no longer a tenable option for prisons, prisoners, and the\u00a0society that must reintegrate offenders. Moreover, national surveys of crime\u00a0victims lend support to the policy goals of rehabilitation over lengthier sentences:\u00a082% support \u201c[i]ncreasing education and rehabilitation services for the people in\u00a0the justice system.\u201d Of the male crime victims, 87% attribute crime to alcohol\u00a0and drug addiction or poor parenting; 81% of the female crime victims agree. Only 4% of all surveyed crime victims attribute \u201ctoo few people in prison\u201d as a\u00a0cause of crime. In this respect, reforms to rape sentences must be accompanied\u00a0by a call for more effective criminal justice intervention rather than simply\u00a0incarceration and more of it. Instead of channeling outrage for the first rape,\u00a0sentencing must also meaningfully seek to rehabilitate and prevent a second. This\u00a0Article advances the normative position that a lighter sentence for acquaintance\u00a0rape serves retribution, and just as importantly, serves the societal goals of ending\u00a0crime by increasing convictions and reintegrating offenders who complete shorter\u00a0sentences.<\/p>\n