Saturday, December 12, 2009
Michele Alexandre (University of Mississippi) has posted 'Girls Gone Wild' and Rape Law: Revising the Contractual Concept of Consent & Ensuring an Unbiased Application of 'Reasonable Doubt' When the Victims is Non-Traditional (American University Journal of Gender, Social Policy & the Law, Vol. 17, No. 1, 2009) on SSRN. Here is the abstract:
This article . . . argues that the traditional contractual standard for consent applied in rape cases is erroneous and particularly harmful to non-traditional rape victims. It, therefore, proposes a change to what is coined by the author as a “continuum-based” standard of consent. Courts’ treatment of non-traditional rape victims when applying the traditional contractual consent standard perpetuates gender biases that nullify the very purpose of the rape shield laws. These decisions are full of sexist assumptions and inferences about the victim’s sexual behavior, which courts use to justify their decisions to allow evidence of the victim’s past sexual conduct. This type of evidence unfailingly permeates the jury’s decision as to whether or not the alleged victim’s behavior and past acts are worthy of protection.