Thursday, April 28, 2011
In bedrooms and back alleys, at parties, in offices, and within families: rape happens, rape is real. At this very moment, there are approximately 20 million women in the United States who have been raped during their lifetime, and each year, over one million women are raped in the United States. The numbers are staggering, but not unfamiliar. Despite the devastating and continued prevalence of rape in the United States, estimated state rape conviction rates are as low as 2 to 9 percent of total instances of rape. In effect, the rift between the widespread perpetration of rape and sexual assault and the minimal prosecution and conviction of rapists questions the commitment and priority of law enforcement, law makers, courts, and the public in treating rape as seriously before the law as it is treated in name. If rape is serious, why don’t we take rape prosecution seriously?
This paper identifies and challenges the incongruity between the purportedly-accepted gravity of rape crimes and the pervasive continuance of rape impunity in the United States. Part I begins by presenting the problem of local rape tolerance, as evidenced by both the inadequate investigation and prosecution of rape crimes, and by the grading of rape that define legitimate rape as rape-and or rape plus and marginalizes “mere” rape or rape-alone as rape-lite. Part II discusses federal rape tolerance by examining the Supreme Court’s minimization of violence against women as a local problem and the Court’s simultaneous and incongruent maximization of congressional authority for the longstanding federal crimes of extortion and mail fraud. Part III compares rape to race-based crimes, examining both congressional authority to criminalize race-based violence under the Thirteenth Amendment’s prohibition against slavery and congressional paralysis in criminalizing gender-based violence. Part III argues that rape falls within the Thirteenth Amendment’s protections: rape is slavery. Part IV discusses the necessity, practical advantages, and challenges of federal rape law.
While it is not possible to predict the prospective success of federally criminalizing rape, this paper concludes by finding that the benefits of enabling national action against rape outweigh the unlikely harms of such action. In order to construct and prosecute rape in a manner consistent with its purported gravity - in order for federal and local actors to take rape seriously - rape must be afforded the protections of the Thirteenth Amendment and federal action is necessary. Accordingly, continued federal inaction in working with states and in compelling rape non-impunity stems from an unwillingness rather than an inability to intervene, and will signify continued federal rape tolerance.