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Univ. of San Diego School of Law

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Saturday, August 21, 2010

Buchhandler-Raphael on Rape as Sexual Abuse of Power

Michal Buchhandler-Raphael has posted The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power on SSRN. Here is the abstract:

What is rape? What are the harms, risks and values that the criminal prohibition on rape attempts to promote? How should criminal law properly conceptualize the offense of rape? Does submission to sexual demands in light of threats to inflict non-physical harms, such as economic and professional harms including firing or demotion, constitute rape? Scholars have been grappling with these questions for several decades, attempting to better align society’s perceptions about the criminal regulation of sexual misconduct with the ever-evolving social perceptions about sexuality and gender norms.

This Article argues that while rape law reform has accomplished significant changes in the past decades, it has since stalled. What might account for this stagnation is the turn to consent. This move is conceptually misguided, failing to effect instrumental change both in the courts as well as in social norms. The result is that rape, as defined by our criminal justice system, bears little resemblance to the various forms of sexual abuses that are inflicted on victims. Statutory definitions of rape are inept and require an overhaul to better capture the harm and wrongdoing of rape that many victims still experience.



To address these drawbacks, this Article advocates the adoption of an alternative conceptual framework for rape as an act of abuse of power and exploitation of dominance and control. This approach is not only more responsive to the complainants’ narratives and the harms inflicted upon them, but also better captures the wrongdoing in the perpetrator’s conduct. This Article’s innovation lies in suggesting not only that consent ought not to be an element of rape, but also that the theoretical understanding of what rape is ought to fundamentally change by adopting a conceptual overhaul that captures the offense based on an abuse of power construct.

http://lawprofessors.typepad.com/crimprof_blog/2010/08/buchhandlerraphael-on-rape-as-sexual-abuse-of-power.html

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