Rape Beyond Crime

KAPLAN IN PRINTER FINAL.DOCX (DO NOT DELETE) 2/10/2017 9:25 AM RAPE BEYOND CRIME MARGO KAPLAN† ABSTRACT 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. Recent civil law developments, such as university disciplinary proceedings, similarly fixate on how best to find and penalize perpetrators. As a result, rape law continues to spin its wheels in the same arguments and obstacles. This Article 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. Public health law provides more promising terrain for rape prevention because it is a strong 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 also 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 that 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,” that is, moving beyond how to protect women’s right to refuse sex and toward promoting and exploring positive models of sex. Criminal law is simply incapable of meeting this challenge because it concerns only what sex Copyright © 2017 Margo Kaplan. † Associate Professor of Law, Rutgers Law School. I am indebted to several individuals for their thoughtful comments and advice, in particular Michelle Anderson, Katharine Baker, Ann E. Freeman, Kimberly Kessler Ferzan, Cynthia Godsoe, Douglas Husak, Adam Kolber, Michelle Madden Dempsey, Nancy Leong, Nadia Sawicki, Kim Shayo Buchanan, George C. Thomas, and Alec Walen, and the editors of the Duke Law Journal, as well as the participants in the 2016 Law and Society Conference, the Rutgers University Chancellor’s New Faculty Research Symposium, and the Rutgers Law School Faculty Colloquium. KAPLAN IN PRINTER FINAL.DOCX (DO NOT DELETE) 1046 DUKE LAW JOURNAL 2/10/2017 9:25 AM [Vol. 66:1045 should not be. A public health framework can give the law a richer role in addressing the full spectrum of sexual attitudes and behaviors. TABLE OF CONTENTS Introduction .......................................................................................... 1046 I. The Failure of Criminal Law .......................................................... 1054 A. Criminal Law’s Dubious Progress .................................... 1054 1. Struggling with Legal Standards ................................... 1054 2. Data on Rape Contradict the Assumptions Underlying Criminal Law ................................................................ 1059 B. The Double Bind of Criminal Law and Rape................. 1062 1. Social Norms Render Rape Law Ineffective ................ 1062 2. Social Norms Are Intrinsic to the Mens Rea Determination ............................................................... 1072 II. Rape Beyond Crime: A Public Health Law Framework........... 1078 A. The Power, Mandate, and Characteristics of Public Health Law....................................................................................... 1078 B. Transforming Rape Law: A Public Health Law Framework .......................................................................... 1083 1. An Evidence-Based Approach ...................................... 1083 2. Changing Behaviors by Changing Social Norms ........ 1084 3. Addressing Social Determinants ................................... 1088 C. Legal and Policy Interventions ......................................... 1090 1. Preliminary Thoughts..................................................... 1090 2. Fostering an Evidence-Based Approach: Data Collection ....................................................................... 1091 3. Education Laws and Policies ........................................ 1093 4. Engaging Mass Media Strategies ................................... 1100 5. Meeting the Challenges of Social Determinants ........... 1102 D. Theorizing Yes.................................................................... 1103 E. Potential Criticisms of the Public Health Framework ... 1109 Conclusion ............................................................................................. 1111 INTRODUCTION Rape poses a special problem for the law. Legal scholars and lawmakers agree that rape is a horrific crime and that traditional rape law was underinclusive and unfair to victims.1 Yet there is little 1. See infra Part I.A. “Rape” and “sexual assault” are legal terms, referring to criminal offenses defined in statutes. Use of these terms can vary based on jurisdiction. Compare N.Y. KAPLAN IN PRINTER FINAL.DOCX (DO NOT DELETE) 2017] RAPE BEYOND CRIME 2/10/2017 9:25 AM 1047 consensus on how best to reform rape law, and efforts have yielded disappointing results.2 Forced or coerced sex remains widespread and difficult to prosecute, particularly when the victim knows the defendant.3 This meager progress is unsurprising: legal scholars have undertaken a task destined to fail. We have made rape law almost exclusively the provenance of criminal law, a framework of prohibition and punishment. Criminal law is inherently ill suited to meet the challenges rape poses, most notably rape’s entrenchment in a culture that views sex as antagonistic—something to be taken or won from a partner. This Article argues that, absent a broader change in this culture, criminal law faces a double bind: rape laws will be either ineffective or unjust. The facts of any given rape case must be interpreted by judges and jurors steeped in a culture of gender stereotypes and rape myths. Yet rape law cannot avoid this problem by forcing prosecutors, juries, and judges to ignore these social norms. Even the most despicable beliefs can be relevant to determining a defendant’s mens rea— whether the defendant knew the victim did not consent or was reckless or negligent as to the victim’s nonconsent.4 The problem is not merely that social norms thwart effective prosecution; if we truly care about culpability, sometimes they must, because social and cultural norms are integral to a defendant’s mens rea. Social norms and cultural cognition PENAL LAW § 130.35 (McKinney 2009) (using the term “rape”), with N.J. STAT. ANN. § 2C:14-2 (West 2016) (using the term “sexual assault”). The terms may also be used to refer to something broader than what the law prohibits—a normative conception of what ought t (...truncated)