Wednesday, November 7, 2018
Caroline Davidson (Willamette University - College of Law) has posted Rape in Context: Lessons for the United States from the International Criminal Court (Cardozo Law Review, Vol. 39, No. 1191, 2018) on SSRN. Here is the abstract:
The law of rape is getting a rewrite. Domestically and internationally, major efforts are underway to reform rape laws that have failed to live up to their promises of seeking justice for victims and deterring future sexual violence. The cutting edge of international criminal law on rape eschews inquiries into consent and instead embraces an examination of coercion or a coercive environment. By contrast, in the United States, rape reform discussions typically center on consent. The American Law Institute’s proposed overhaul of the Model Penal Code’s provision on sexual assault carves out a middle ground and introduces, in addition to the traditional crime of forcible rape, separate sexual assault offenses based on coercion and lack of consent. This Article compares these two trajectories of rape reform and asks whether, as Catharine MacKinnon has suggested, U.S. law ought to follow the lead of international criminal law and define rape in terms of coercive inequalities. Ultimately, this Article concludes that adopting the international criminal coercion test in U.S. rape law would do more harm than good. Instead, it outlines more modest, but workable, lessons the United States can learn from the international law of rape.