Stranger and nonstranger rape: one crime, one penalty.

• Author: Shanahan, Emily C.
• Position: Response to article by Susan Estrich, Yale Law Journal, vol. 95, p. 1087, 1986

1. INTRODUCTION

   In her article, Rape, Susan Estrich identifies two types of rape: "traditional" rape (a violent rape committed by a stranger) and "nontraditional" rape (a less violent rape committed by an acquaintance of the victim).(1) Estrich argues that "nontraditional" rapes should be subject to criminal penalties, "albeit reduced ones."(2) This Note challenges Estrich's conclusion that nontraditional rape warrants a less severe penalty than traditional rape. Instead, this Note proposes and defends a sentencing structure in which the penalty for nontraditional rape is the same as that for traditional rape. Moreover, this base sentence should be significant. Force, if considered at all, should be treated as an aggravating factor that enhances the base sentence for rape; the absence of force, however, does not justify a reduction in the base sentence. The cornerstone of this proposal is that there is only one crime of rape.(3)

   Part II describes the underlying assumptions of this Note. Part III explores the different harms of rape. It first focuses on a narrow interpretation that identifies physical injury as the only harm of rape. It then proposes a broader perspective which recognizes that the harm of rape includes the injury to a victim's psyche and sense of trust as well as the harm done to all women, both victims and nonvictims. An alternative definition of the harm of rape is a prerequisite to the analysis developed in Part IV. Part IV first describes Michel Foucault's proposal for assigning criminal penalties in accordance with the disorder a crime is capable of initiating. It then combines the broader definition of rape's harm with Foucault's analysis to conclude that, at a minimum, nontraditional rape should be penalized commensurately with traditional rape because of the significant threat the former poses to the social fabric. Part V describes and applies to the rape context sociological models which support this Note's sentencing proposal. Finally, Part VI explores whether economic models of crime support commensurate sentencing.

2. ASSUMPTIONS

   It is common to distinguish between two types of rape, violent stranger rape and nonviolent nonstranger rape.(4) This dichotomy, however, conflates two separate issues: the level of force used to commit the rape and the nature of the relationship between the attacker and his victim. Recognition of these two distinct axes--level of force and relationship--may counsel expanding the range of possible rape scenarios to include not only violent stranger rape and nonviolent nonstranger rape, but also nonviolent stranger rape and violent nonstranger rape.

   Considering a broader range of rape scenarios, however, seems to have limited analytic value. As a practical matter, nonviolent stranger rapes probably do not occur. Because the victim and attacker do not know each other, it is likely that an attacker must use some level of force--at a minimum, a verbal threat or brandishing a weapon--to gain initial control over his victim. Compared to a rape in which the victim knows her attacker, a stranger rape is "more likely to involve aggression by the offender (threats of bodily harm, hitting, slapping, and use of a weapon)."(5) As a result, this Note retains the two-prong approach. The term "stranger rape" assumes that some level of violence or force is involved, whereas the term "nonstranger rape" assumes that violence or force is not involved.

   Furthermore, this Note's vision of rape is more sympathetic to the characterization of rape as a crime of violence. An alternative approach argues that rape is a crime of sex because it is based upon "accepted sexual practices that privilege male physical aggression and violence."(6) Catharine MacKinnon maintains that a woman is raped whenever she has sex and feels violated.(7) "Compare victims' reports of rape with women's reports of sex. They look a lot alike.... In this light, the major distinction between intercourse (normal) and rape (abnormal) is that the normal happens so often that one cannot get anyone to see anything wrong with it."(8) Although MacKinnon acknowledges that the "rape-as-violence" view surfaces "rape's previously effaced elements of power and dominance," she thinks it is incomplete because it obscures rape's elements of sex.(9) "Aside from failing to answer the rather obvious question, if it is violence not sex, why didn't he just hit her? this approach made it impossible to see that violence is sex when it is practiced as sex."(10)

   Henderson rejects MacKinnon's argument because it collapses the distinction between heterosexuality, and male aggression and violence. According to Henderson, MacKinnon's "insistence on sex as violence encounters some of the difficulties that the rape is violence argument encounters: Men just don't see the violence."(11) In contrast, the vision of rape as a crime of violence suggests that rape is "an act of power, anger, or hatred. Rape is an assaultive crime that attacks the physical integrity and mind of the victim. Rape is as brutal as any vicious, violent attack."(12) This approach too is limited because it does not succeed in "conveying the seriousness of the crime because of the particular understanding and image of violence we have."(13) Rather, the rape-as-violence argument enables "many men to distinguish what they have done from what rapists do, because they haven't caused external physical damage that they can understand as violence."(14) A broader vision of rape that signals to men that such behavior--even though it does not conform to our traditional vision of the rapist as a violent offender(15)--constitutes rape, is more appropriate.(16)

3. IDENTIFYING AND DEFINING THE HARM OF RAPE

   If we accept as a basic assumption that the penalty for a crime should be set according to the harm it causes, then it becomes necessary to develop a robust and complete definition of that harm. Because the harm of rape has been defined in a certain way, stranger rape and nonstranger rape have been viewed and treated as two distinct crimes. Traditionally, the law has recognized physical injury to the victim as the principal harm of rape. A stranger rape warrants a severe penalty because it often entails the potential for grave physical injury; in contrast, nonstranger rape has been deemed unworthy of severe penalty because it typically results in minimal physical injury to the victim.(17)

   The argument that rape is just a form of battery illustrates this narrow definition of rape's harm as physical injury. After considering the rape-as-battery approach, this section rejects it because it fails to capture the many other injuries suffered by victims of rape and by all women, including those who have never been raped. By expanding the notion of the harms and injuries resulting from rape, the common nature between stranger and nonstranger rape becomes more apparent; these harms are experienced, in one form or another, by all victims of all types of rape. This broader vision suggests two conclusions: 1) nonstranger rape, as measured in terms of harm, is as serious as stranger rape; and 2) because there is a core harm of rape, regardless of whether physical force is used against the victim, there should be one crime of rape. Consequently, stranger and nonstranger rape warrant the same (serious) baseline sentence.

   1. Physical Harm: Rape as Battery

      Some scholars propose that the crime of rape should be eliminated; instead, rape should be treated as a form of battery. According to Michael Davis, rape "is not a very serious crime. Rape should be treated as a variety of ordinary (simple or aggravated) battery because that is what rape is. Treating rape in that way is theoretically sound."(18) Rape victims tend to suffer neither great bodily harm nor "serious long term psychic injury."(19) Martin Schwartz and Todd Clear argue that rape is more of an assault than a sexual attack because rape and assault involve similar motives, including domination and revenge.(20) Treating rape as a battery is a better approach because "there is no reason to separate a woman's sexual integrity from her general physical integrity.... Politically, the creation of this special sexual status is one of the barriers that prevents women from being the equals of men under the law."(21)

      In contrast to Schwartz and Clear, Donald Dripps recognizes that conduct traditionally defined as rape violates the rights and interests of its victim in two ways. First, the use of force violates an individual's interest in freedom from injury; in nonsexual contexts, this interest is protected by the punishment for assault. Second, use of another's body for sexual gratification "violates the interest in exclusive control of one's body for sexual purposes."(22) Instead of absorbing the crime of rape into the law of battery, Dripps proposes the definition of two new crimes intended to protect these separate interests: 1) sexually motivated assault, which would warrant enhancing a sentence for aggravated assault; and 2) sexual expropriation, which would include those cases involving "pressures to cause sexual cooperation, short of violence."(23)

      Like the proponents of the rape-as-battery approach, Dripps believes that physical injury is the principal and most serious harm a rape victim suffers. As a result, Dripps argues that sexual expropriation merits only a modest penalty because "violence is more dangerous and more culpable than an unwelcome sex act."(24) Physical violence causes greater damage to a victim's welfare because it "expresses a more complete indifference, or a more intense hostility to the victim's humanity."(25)

      The rape-as-battery approach is proposed, in part at least, to correct the defects in current rape law. A principal benefit of this analytical framework is to "draw attention to the acts of the offender,"(26) rather than focusing on the behavior of the victim. Because this approach changes the focus of...