The law of sexual assault is in an expressive crisis. Social media has raised awareness of how easily even acquaintances may sexually violate a woman, (1) and the newly-elected U.S. President is on tape endorsing it. At the same time, many jurisdictions have adopted broader definitions of sexual assault to match reality, shifting away from the traditional conception of rape as forcible sex, to one based on lack of consent. (3) Yet police departments and prosecutors struggle with the new doctrinal shift. (4) Due to resource, evidentiary, and reporting problems, there is a mismatch between the new substantive understanding of sexual assault and its actual enforcement. This has contributed to something of a cultural war waged by survivors (and many women generally) against "rape culture." (5) While it sheds valuable light on the relationship between misogynistic cultural attitudes and sexual violence, the war on rape culture also runs the risk of indiscriminately categorizing all sexualized or gendered speech and much of male behavior as implicitly rape-supportive.
This article proposes that lessons from the so-called "Broken Windows" theory of policing can assist prosecutors and lawmakers in addressing the gap between the law's definition of sexual assault and the current realities of under-enforcement and victim disempowerment. The key hypothesis of Broken Windows theory is that the appearance of order gained by cracking down on misdemeanors will create the reality of order and reduce more serious violent crimes. This claim remains controversial, even thirty years after Rudolph Giuliani famously relied on it to clean up the streets of New York City. (6) Empirical scholars disagree on the theory's efficacy and police have used racially suspect means to apply it. (7)
Nonetheless, the interaction between appearance and reality posited by Broken Windows has unique explanatory power in the area of rape law. Inadequate sexual assault enforcement is, as I will demonstrate, a cyclical problem with four phases: weak cultural norms, under-enforcement, victim disempowerment, and underreporting. I suggest that prosecutors, police, and lawmakers must aggressively target lower level street harassment of women, on the occasions it already meets the elements of assault. While the instances where a harasser can be shown to have the intent of putting his victim in immediate apprehension of unwanted touching may be a minority of all harassment cases generally, they are frequent enough that the state can send an important expressive message by prosecuting them as simple assault or other related offenses.
This should have two positive effects. First, if the proponents of the strong view of Broken Windows are correct that enforcing lower level laws does reduce more serious offenses, then punishing street harassment may, over the long term, reduce the more serious sexual assaults that are much harder to detect and prove. Second, if the critics of Broken Windows are right--if all we get from Broken Windows policing are fewer "broken windows"--that would still be uniquely beneficial in the context of sexual assault due to the high symbolic value of street harassment. Aggressive prosecution of even "harmless" non-consensual street harassment would help resolve the law's broader expressive problem with categorizing nonconsensual sex. Even if it did not directly deter serious sexual assault, it would help combat the norm of default access to female bodies more concretely and less divisively than the amorphous, extra-legal critique of "rape culture" has thus far. It would also encourage victims to report more serious offenses by showing that the state cares about prosecuting them. All of these effects would serve, indirectly, to reduce the incidence of sexual assault.
This article will proceed in five parts. In Part I, I identify and explain the cyclical relationship between the appearance and reality of states under-enforcing the sexual assault laws. In Part II, I introduce Broken Windows theory and its critics and propose a framework for evaluating its efficacy in the context of sexual assault. In Part III, I describe the problem of street harassment and the harms it causes and suggest its sociological and legal relationship to sexual assault. In Part IV, I argue that Broken Windows theory holds promise for sexual assault enforcement and propose that prosecutors prioritize charges against street harassers in order to improve their inadequate enforcement of sexual assault laws. I also consider counterarguments. In Part V, I conclude.
THE RAPE CYCLE
It has become something of a truism that rape is under-reported and under-prosecuted. This section reviews the various data on these claims and explores the problems contributed by doctrinal confusion over the definition of rape and cultural mythologies about sex and gender. It concludes that the appearance of under-enforcement has contributed to under-reporting, and that the resulting expressive crisis has had a negative impact on relevant cultural norms--which have in turn contributed to under-enforcement in a kind of vicious cycle.
In 2013, the U.S. Department of Justice (DOJ) issued findings following its investigation of the Missoula, Montana Police Department (MPD) for under-enforcement of the law in cases of sexual violence. (8) Operating under the authority granted by 42 U.S.C. [section] 14141--allowing the federal government to bring suit against unconstitutional patterns of policing--the DOJ targeted the MPD after a series of local news reports detailed its systemic law enforcement failure when it came to sex crimes. (9) The DOJ identified MPD policies such as "discouraging female victims of sexual assault from cooperating with law enforcement" due, in part, to "stereotypes and misinformation about women and victims of sexual assault." (10) The report concluded that the MPD's systematic under-enforcement of the sexual assault laws, particularly in cases of non-stranger rape, constituted a violation of the Equal Protection Clause. (11)
The DOJ noted that victims may have been routinely deterred from seeking prosecution by being asked at the outset whether they wished to proceed criminally. "Such a question," the report noted,
may send the message that if she proceeds with her case she will be expected to be the driving force behind the prosecution; that she should already feel sufficiently well-informed and empowered to make the decision as to whether to seek prosecution; or that she should feel personally responsible for imposing serious criminal consequences on the assailant. (12) Furthermore, the report noted that the MPD failed to employ certain techniques relevant to proving the crucial element of lack of consent in alcohol-facilitated assaults. (13) Such omissions included collecting evidence, interviewing witnesses, and questioning suspects. (14) Eventually, the MPD settled with the government and agreed to modify its policies to implement best practices to combat gender bias consistent with the International Association of Chiefs of Police (IACP) Model Policy on Investigating Sexual Assaults. (15)
As a vindication of the Equal Protection Clause's promise of gender-neutral state law enforcement protection, the Missoula settlement has been heralded as coming "as close as any intervention since Reconstruction to addressing the framers' core concern with underenforcement." (16) It is, however, only a very early inroad into a problem that has become a truism in criminal justice circles: most victims fail to report sexual assaults. (17) The DOJ estimates that, among eighteen to twenty-four-year-old women, only 20% of college students and 32% of non-college students report these crimes. (18) Of those numbers, one in five of the non-college students surveyed stated that they did not report because they believed that "police would or could not do anything to help." (19)
While these bleak numbers have been controversial, they are consistent with other literature on sexual assault investigations around the country, which reveal a pervasive failure of law enforcement and prosecutors' offices to pursue reported sexual assaults. (20) Empirical literature suggests that prosecutors are more likely to see rape cases as "winnable" when they fit the model of so-called "real rape" (for example, when the assailant used a weapon or there was at least evidence of use of force). (21) Furthermore, juries are four times more likely to convict when a sexual assault involves factors such as stranger assailants, multiple assailants, or violence. (22) While some of that disparity may be explained on purely evidentiary grounds--cases of violent rape generally leave more physical evidence and make intentionality easier to prove--the evidence suggests that judges and juries reach disproportionately divergent conclusions in non-aggravated sexual assault cases. (23) According to Kalven and Zeisel's landmark study of the American jury, in 88% of aggravated sexual assault cases, judges and juries reach the same verdict of guilty; yet, they agree only 40% of the time in other sexual assault cases." In other words, in cases where women could be perceived as in some way contributing to their victimization, judges found guilt but juries did not. (25)
It should be noted that there are many reasons other than gender stereotypes that could explain why law enforcement may fail to pursue these cases. One is the now-famous "rape kit backlog," which currently thwarts the potential discovery of DNA evidence in approximately 400,000 cases across the country. (26) According to a recent National Institute of Justice (NIJ) study, 18% of the unsolved alleged sexual assaults occurring from 2002-2007 involved forensic evidence collected but never submitted for DNA analysis. (27) Clearly, given the centrality of DNA evidence to proof of sexual assault, more funding for police...