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October 10, 2013

Potential rape law reformation would help to protect women

By Mara Biggs

On Sept. 26, 2013 from 5-6 p.m., Cleveland-Marshall College of Law held a criminal justice forum called “Rape Law for the 21st Century” in the moot court room. The forum was given by Professor Deborah Tuerkheimer from DePaul University College of Law. She made several arguments for necessary rape law reform on behalf of women as the American Law Institute is in the midst of revising the model penal code divisions of rape.

One in every five women in the United States is raped in her lifetime. Of these women, half are raped by an intimate partner and 40 percent by an acquaintance, which means 90 percent of rapes occur differently than the standard rape paradigm, said Tuerkheimer. The standard rape paradigm refers to aggravated rape by a stranger who uses extrinsic force and possibly a weapon – i.e. the man in the alley.

Non-stringent rape, the 90 percent that includes rape by intimate partners, acquaintances and date rape, is barely touched by the criminal justice system, according to Tuerkheimer.

“Given that 90 percent of rape is inflicted by non-strangers and most of it goes unpunished, it seems clear to me that the law is in some desperate need of retooling,” Tuerkheimer said.

Victims are less likely to report non-stringent rapes, and often do not even recognize what happened as rape, said Tuerkheimer. If a victim does report a non-stringent rape, police are less likely to believe her, prosecutors are less likely to press charges and juries are less likely to convict.

Rape has traditionally been defined as non-consensual by force, which has made a woman’s non-consent alone insufficient to determine rape. Tuerkheimer argued that the force requirement should be removed from rape law, because non-consensual sex lacking excess force often occurs within relationships. She said there are relationship-related substitutes for surplus force that facilitate non-consensual sex. For instance, past abuse can stand in as force in relationships with ongoing abuse. Researchers have documented a high correlation between physical, emotional and sexual abuse.

Other force agents in relationships and by acquaintances that would be considered outside of the standard rape paradigm are sleep and intoxication. When a victim is unconscious or too impaired to refuse sex or get away from the predator, extra force is not needed. Under such circumstances, the criminal justice system could drop rape charges because the force requirement would not be met, though the sex was still non-consensual.

Tuerkheimer said some jurisdictions do criminalize sex with an incapacitated victim, but not necessarily because it was non-consensual. She said in most of these jurisdictions, the court focuses not on a woman’s willingness or unwillingness to have sex, but on the women’s level of intoxication or consciousness. Tuerkheimer said that in this way, a woman’s consent is inferred through submission, disregarding female sexual agency and constructing a very passive view of female sexuality. Tuerkheimer said she wants to emphasize that consent can of course also be implied in ongoing relationships. She said she is not suggesting that verbal consent is needed for sex to be consensual, but that it shouldn’t be assumed that the sex is consensual just because it occurs within an ongoing relationship.

In addition to removing the force requirement from rape law, Tuerkheimer said she believes the court must stop allowing women’s sexual history to be used as evidence in rape cases. If the court sees a woman’s sex life as deviant, her sexual behavior can be deemed as patterned, and the court will be less likely to believe she was raped. Tuerkheimer said that sex with perceived frequency, sex on the part of teenagers and sex that is woman-initiated are often viewed as deviant and given this patterned treatment. The criminal justice system also struggles with rape cases in which the woman has a past history of prostitution or group sex.

Tuerkheimer said she hopes her efforts will influence state legislation in the coming years and bring a more sex-positive agenda into the criminal justice system for women.

“The approach I’m envisioning confirms female sexual agency, not only by protecting it, but also by refusing to circumscribe it,” said Tuerkheimer. “In my view, for the law to foster women’s agency, it must meaningfully condemn rape. And for the law to respond to rape, it cannot judge female sexuality.”