Despite over thirty years of rape law reform, rape remains too prevalent, and successful convictions of rapists remain too rare. I argue in this Article that we continue to Jail rape victims because we are too quick to give hi to our instinct to blame and less willing to engage in the careful reflection that would lead us to see more profoundly our collective responsibility for this failure.
The Article proceeds ill five sections. In Section I, I review a number of studies and argue that rape reforms to date, while significant, have nonetheless been inadequate. I then discuss the pervasiveness of rape myths about blame, both over time and in the present day. In Section II, I extend my analysis to rape in the tort system. Drawing on a recent empirical analysis of jury verdicts arid settlements, as well as interviews with practicing plaintiffs attorneys, I argue that unless harm is concrete and visible, we tend to devalue it.
In Section III, I turn my attention to policymaking. Based on a series of empirical studies, I discuss the role of the media and legislators in shaping policy response to sex crimes. I argue that the policy response has often been driven by moral panic rather than careful reflection. In Section IV, I evaluate why reform has Jailed and suggest that the impulse to blame all men or all men in fraternities is overly simplistic. In Section V, I conclude the paper with a reflection on the deeper meanings of rape myths and rape law reform. I argue that to find lasting solutions for the problems of sexual violence we must first look inward. Reflection, leading to collective responsibility and collective action, is the best path to reform.
[W]e must move on from the reassuring repetition of stale phrases to a new, difficult, but essential confrontation with reality. For the great enemy of truth is very often not the lie--deliberate, contrived and dishonest--but the myth--persistent, persuasive, and unrealistic. Too often we hold fast to the cliches of our
forebears. We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.
--John F. Kennedy (1)
Can you look at yourself in the mirror and say: "I have contributed to the sexual assault of a woman?" If you're like me, not only is the answer no, but the very question is offensive. Me, contribute to someone's rape? Never. How dare you! To buttress our responses, we quickly point to other targets. We might blame the victim, pornography, out-of-control men, the media, the courts, or something else--but whatever it is, we make sure that we stay out of harm's way. We know who we are, and we know that it couldn't possibly be us. After all, we're reading a law review article. We're educated. We're working for change. We are open-minded. We are the good guys here ... aren't we?
Through a series of publications over the past decade, led in part by Jon Hanson and his colleagues at Harvard Law School's Project on Law and Mind Sciences, scholars have begun to challenge legal academia to confront a discomforting possibility: we don't know ourselves as well as we think we do. Through a situationist approach to legal analysis, Hanson and his collaborators have challenged us to think not only about the law, but about ourselves as well. (2) In this article, I employ a situationist approach to revisit the laws of rape and sexual assault.
Specifically, I argue that reflecting on our response to rape will help us better understand why, despite over three decades of rape law reform, we have failed to make significant progress on preventing rape before it happens and prosecuting rape after it happens. In short, I argue that we must all take responsibility for our collective failures in prevention and prosecution of rape.
In taking the situationist approach, I borrow a line from Hanson and colleagues and encourage the reader to "[t]ry to be aware of what you bring to this Article; be aware of how you read, why you are reading, and even that you are reading. Do you have expectations about what this Article will say or how you will feel about it? Ask yourself: What am 1 looking for in this Article, and why?" (3)
What happens when we discover that someone in our community has been sexually assaulted? How do we respond? Do we engage in the discomforting process of addressing it? Do we take any responsibility, as a member of the victim's community, for the crime? Or do we simply point our fingers at something or someone else?
Years ago, when I began writing this Article, I didn't start out with these questions. Rather, I wanted to immediately develop concrete policy proposals and a solution. But after much research, the evidence simply didn't add up. I found myself proposing the same "solutions" that were already on the table (and that have had only limited effectiveness thus far). Something was missing.
It was only when I began to listen more carefully to the accounts of rape victims themselves--when I took a step back and acknowledged my own situation--that I sensed why I was stumbling. Since the 1970s, researchers have found that in reaction to the rape of loved ones, boyfriends and husbands typically respond with a strong desire to "get" the perpetrator. (4) My academic response was similar--I wanted a policy that would find and punish the bad guys. I wasn't going to blame the victim, but I was going to blame somebody. And I certainly wasn't going to implicate someone who resembled me.
My own process of writing is, I believe, indicative of our societal, political, and legal response to rape. When we try to understand why rape happens and who is responsible, we are typically careful to ensure that we are in no way personally responsible. Whether it is by making our analysis academic and distanced, by blaming the victim, or by blaming members of a group to which we don't belong, we fail to look inward. We avoid the discomfort that such reflection would produce.
Without careful reflection, we are left with myths about blame and responsibility. And as the epigraph from President Kennedy at the outset of this Article suggests, such myths are persistent and persuasive even though they are unrealistic. (5) Myths are persuasive because they comfort us--they reaffirm our place in the world. Myths are persistent because when our myths are challenged, we react by creating new ones in their place. This Article aspires to do one thing: encourage us all to reflect, from many different viewpoints, on how we assign and discuss blame and responsibility in the context of rape. (6)
The Article proceeds in five sections. In Section I, I argue that rape reforms to date, while significant, have nonetheless been very inadequate. I then discuss the pervasiveness of rape myths about blame, both over time and in the present day. I argue that these myths remain very much with us today. In Section II, I extend my situationist analysis to rape in the tort system. I argue that we often do not (or choose not to) see the true harm that rape victims suffer. Drawing on an empirical analysis of jury verdicts and settlements, as well as interviews with practicing plaintiffs' attorneys, I argue that unless harm is concrete and visible, we tend to devalue it. The psychological trauma of rape is an invisible harm.
In Section III, I turn my attention to policymaking. I discuss the role of the media, state legislators, and public opinion in shaping policy response to sex crimes. I argue that the policy response has often been driven by moral panic rather than careful reflection. In Section IV, I evaluate why reform has failed, and suggest that the impulse to blame all men, or all men in fraternities, is overly simplistic. In Section V, I conclude the paper with a reflection on the deeper meanings of rape myths and rape law reform. I argue that to find lasting solutions for the problems of sexual violence we must first look inward.
Reflection, leading to collective responsibility and collective action, is the best path to reform.
The Persistent Problem of Rape and the Pervasiveness of Rape Myths
The thirty-year period from 1977 to 2007 in the United States saw much innovation in sex crime law, including multiple waves of rape law reform, but this Article argues that these changes have done little to eliminate the fundamental myths about blame attribution that permeate many aspects of criminal and civil rape law. (7) Perhaps most striking is the fact that an entire "rape myth" literature, consisting of hundreds of scholarly works, has uncovered myths about many aspects of blame attribution but has been unable to loosen their grip on us. (8)
Section I reviews these myths of blame attribution, exploring (A) the failures of rape law reform and, thus, the need to revisit the issue of blame; (B) the historical context of blame attribution in rape; (C) the origins of rape myths in our desire to believe in a just world; (D) the implications of rape myths for adjudication in the legal system; and (E) the importance of race in understanding rape myths.
The Failures of Rape Law Reform
In the last four decades, much has been written about rape law, its reform, and the failures of those reforms. (9) In fact, there has been so much written on rape that fifteen years ago, a study had to be done to summarize research about the research. (10) In such a dense field, there is no lack of suggestions for legal reform. This Article does not attempt to review all of these many reform proposals; rather, it attempts to use a situationist framework as a conceptual tool for developing a new, and perhaps more complex, understanding of these reforms.
Despite all of the research to date, and all the policy changes that have followed, very little has changed in some of the most important outcomes of interest. One of the most comprehensive studies of the effects of rape law reform found that "[a]lthough attitudes about rape and...