It is what it is: legal recognition of acquaintance rape.

• Author: Robinson, Leslie D.

INTRODUCTION

From 1993 to 2005, the frequency of rapes and sexual assaults in the United States decreased by an amazing 69%, thanks in large part to reformers who participated in decades of debate, lobbying, and crusades to raise public awareness. (1) Even with this significant improvement, however, the pause for celebration should be brief. For the estimated 191,670 women who fell victim to rape or sexual assault in 2005, the American legal system will provide little chance of justice. (2)

The decrease in rape and sexual assault is more attributable to increased public awareness than it is to legal reform. (3) Despite significant changes in the law intended to facilitate rape prosecution, 62% of victims still choose not to report the crime. (4) As a general rule, "[t]he closer the relationship between victim and assailant, the less likely the woman [will] report." (5) Although some individuals fail to report the act because of feelings of shame and embarrassment, the chances of conviction make the intensely emotional and painful ordeal of reporting hardly worthwhile for many others, especially those who know their attacker because known attackers "are the men who are least likely to be arrested, prosecuted, and convicted." (6)

According to statistics obtained throughout the 1990s, a reported rape resulted in an arrest in only 51% of cases (7) despite the fact that 73% of victims knew their attackers prior to the assaults. (8) Of those arrested, 80% were prosecuted, though only 58% of the prosecuted offenders ultimately faced conviction; of those convicted, only 69% were sentenced to time in prison. (9) Thus, the system placed only 16% of reported rapists in prison. (10) Factor in the low reporting rates for rape and sexual assault and the actual rate of imprisonment for rapists drops to a mere 6%. (11) Presumably, the majority of this small percentage consisted of stranger-rapists rather than offenders known to the victim. (12)

This Note identifies the causes for the dismal performance of modern acquaintance rape prosecution and proposes a solution. Although reformers have spent the last several decades attempting to achieve a cohesive statutory structure that provides justice for all rape victims, statistics clearly reveal the system's remaining inadequacies. (13) While acknowledging that reformers have made significant and beneficial changes to traditional rape law, this Note contends that their proposals fail to fully account for the differences between "traditional" rape and acquaintance rape. Today's reformers readily distinguish between these two types of rape but continue to propose reforms that either equate the two crimes or insufficiently take into account the unique features of acquaintance rape. (14) This Note argues that bifurcating traditional rape and acquaintance rape into two distinct statutes will clearly align these crimes with criminal law's culpability theories, present more realistic legal standards for the prosecution of offenders, and more readily comport with society's expectations.

Each Part of this Note presents critical information to support this conclusion. Part I provides an analysis of the rape law reform movement. It begins by identifying the heart of the problem in rape reform by recognizing the different types of rape. This analysis continues by clarifying the meanings of the terms "traditional rape" and "acquaintance rape," and considers the goals, merits, and drawbacks of commonly suggested rape law reforms. Part II presents an analysis of "reformed" rape law, summarizing the statutory schemes of the several states and considering the effects of a model rape reform law adopted in Michigan. Part III develops the underlying reasoning for this Note's proposed solution. This Part discusses the theoretical differences between traditional rape and acquaintance rape and explains practical reasons for the institution of a bifurcated approach. Finally, Part IV offers a proposal for, and discussion of, a new statutory scheme for rape law. Rather than approaching all rape as varying degrees of one offense, the new scheme advocates adding a separate statute specifically tailored to the unique circumstances of acquaintance rape.

1. THE REFORM MOVEMENT

   The rape law reform movement took hold with the feminist movement approximately three decades ago and has become a dominant and ongoing topic in criminal law debates. (15) Reformers in this area of law include feminists, social scientists, legal scholars, and others. (16) The early movement focused on removing antiquated obstacles to rape prosecution in common law rape doctrine that were subsequently adopted by the several states through precedent or statutory provision. (17) These obstacles included, among others, the resistance requirement, the fresh complaint doctrine, the corroboration rule, and Lord Chief Justice Matthew Hale's cautionary jury instruction: "[Rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent." (18) As the movement progressed, reformers increasingly focused their efforts on establishing a statutory system that could adequately deal with what many came to recognize as different types of rape. (19) The majority of discussion in this context focuses on the distinctions between traditional/stranger and acquaintance/date rape. (20)

   1. "Traditional Rape" and "Acquaintance Rape" Defined

      Today's reformers readily acknowledge the differences between traditional rape and acquaintance rape. (21) The different circumstances surrounding these types of rape present distinct challenges in achieving justice for their respective victims. Traditional rape, also referred to as stranger rape, involves the "classic image of an unknown man leaping from the bushes to assault a woman." (22) In these cases, the victim has had no prior consensual contact with the assailant. (23) The main issue in such cases generally focuses on the identity of the attacker and, consequently, the availability and analysis of forensic DNA evidence. (24) Once the attacker has been identified, the occurrence of a rape is generally presumed because most women would not willingly engage in sexual intercourse with a complete stranger. (25)

      In contrast, acquaintance rape involves individuals who knew each other in some capacity prior to the instance of nonconsensual intercourse. (26) In cases of acquaintance rape, the individuals "may have been relatives, close friends, classmates, co-workers, or merely casual acquaintances." (27) "Date rape," a narrower "subset of acquaintance rape," refers to nonconsensual intercourse between individuals previously engaged in (or considering beginning) a relationship of a romantic nature. (28) Prior to an acquaintance rape, interactions between the individuals may have been overtly romantic and may have involved consensual sexual intercourse. (29) Or the acquaintances may have been involved in a social situation where the aggressor perceived a romantic element, while the victim did not. (30) This Note focuses on the broader concept of acquaintance rape which includes all of these possibilities. (31)

      In 2005, 73% of rapes and sexual assaults occurred between acquaintances. (32) Because of the accuser's prior relationship with the victim, the defense typically focuses on consent rather than misidentification. (33) By placing consent at issue, the circumstances surrounding the alleged incident and the character of the complaining victim become significant to the outcome of the case. (34) Acquaintance rape frequently involves alcohol, rarely involves weapons, and rarely results in physical injuries to the woman beyond those inherent in the act itself. (35) These factors often present significant challenges for prosecutors. (36)

   2. Common Rape Reform Proposals

      Satisfied for the most part that the law adequately ensures justice in cases of traditional rape, reformers have almost uniformly devoted their efforts to increasing prosecutions, convictions, and enforcement of rape law in the context of acquaintance rape. (37) The pursuit of this goal has yielded many diverse proposals for change. (38) Although statutory structures vary significantly from state to state, (39) most reformers base their proposals on a typical statute that requires the prosecution to prove sexual penetration, lack of consent, force or threat of force, and mens tea (the mental state and intent of the defendant). (40) These proposals seek the reformation or elimination of these elements or suggest new crimes to supplement or replace existing law. (41)

      1. Reduce Mens Rea to Negligence

         Although courts infrequently considered mens rea in the context of rape, and some courts went so far as to denounce a mens rea requirement, (42) several reformers insist that rape laws must adopt a negligent mens rea standard to be effective. (43) Since a jury lacks reliable means to determine the defendant's state of mind, evaluating mistakes under a subjective standard could lead to "excessive jury leniency." (44) Reformers assert that mens rea levels above negligence allow for subjective mistakes and, accordingly, permit men to avoid conviction on the grounds that they honestly, though unreasonably, believed the victim consented to the act. (45) Reformers reject that possibility and argue that a standard of negligence provides the appropriate remedy. (46)

         This negligence proposal sparked significant opposition. Many scholars argue that, except for minor crimes, negligence has no place in criminal law because the diminished moral culpability of the defendant cannot justify the punishments and stigma associated with criminal convictions. (47) Others suggest that criminal laws based on negligence cannot achieve the deterrence goals of the penal system because such laws criminalize inadvertent behaviors. (48) Reformers counter that the severe harms of rape justify criminal liability and suggest...