TABLE OF CONTENTS INTRODUCTION 1688 I. STATE ENFORCEMENT ALONE HAS MADE LITTLE PROGRESS AGAINST RAPE 1693 A. Extent and Trend of Victimization 1693 B. Reporting, Complaint Processing, Prosecutions, and 1700 Convictions 1. Rape Remains Significantly Underreported 1701 2. The Clearance-by-Arrest Rate for Rape Remains how 1705 3. Justified Rape Prosecutions Remain Hard to Win 1709 C. Prospects for Reform 1710 II. CONGRESSIONAL POWER TO MAKE RAPE A FEDERAL CRIME 1713 A. Congressional Power Under the Commerce Clause 1717 B. Congress Could Make Many Rapes Federal Crimes 1725 1. Channels and Facilities 1726 2. Instrumentalities 1728 3. Instrumentalities--Jurisdictional Elements 1729 4. Substantial Effects 1731 a. Workplace Rapes 1732 b. Rapes of Sex Workers 1733 c. Use of Date Jiape Drugs 1733 C. The Commerce Power Does Not Reach Many Other Rapes 1734 III. THE DUAL CASE FOR A FEDERAL LAW AGAINST RAPE 1735 A. Improving the Investigation and Prosecution of Rape 1735 1. Logistics: Quantity and Quality 1735 2. Tactics: Federal Procedural Advantages in Sexual 1737 Assault Cases B. Drawing Federal Resources Away from Fringe Enforcement of 1740 Proxy Crimes C. Compared to Rape? 1745 D. Two Proposals 1747 1. The Simple Proposal 1747 2. The More Ambitious Proposal 1751 IV. REPLIES TO OBJECTIONS 1754 A. Theoretical Purity: Federalism 1754 B. Theoretical Purity: Feminism 1756 C. Procedural Fairness 1757 D. State Retrenchment 1757 CONCLUSION: A WINDOW OF OPPORTUNITY 1758 APPENDIX I: A PROPOSED FEDERAL SEXUAL ASSAULT ACT OF 2019 1759 APPENDIX II: AN ACT TO CREATE A BUREAU OF VIOLENT CRIMES IN THE 1763 DEPARTMENT OF JUSTICE INTRODUCTION
The year 2017 witnessed an explosion of accusations of sexual assault and harassment against prominent, even celebrated, leaders in journalism, entertainment, athletics, business, politics, and law. (1) Few of those accused have attempted a defense, and many have lost their positions, disgraced. (2) This extraordinary story, however, gives as much cause for pessimism as for optimism about reducing incidents of sexual assault in this country.
The reluctance to come forward until long after the offending behavior shows that fear and shame had the power to silence. They still do. Rape remains the most underreported violent crime. (3) Perhaps even more revealing than the reluctance to report is the direction of the reporting. Typically accusers of high-profile men addressed higher management at work or went to the news media. (4) So far as I can tell, none of them started by reporting to the criminal justice system, despite decades of reforms aimed at encouraging reporting, protecting victim privacy, and facilitating convictions. (5) That makes perfect sense. Police, prosecutors, judges, and juries still receive sexual assault complaints with special skepticism. (6)
If recent accusations really mark the beginning of widespread willingness to report, the legal system is not prepared for it. If the real reporting rate is 10 percent now, bringing it up to 20 percent would mark significant but marginal progress on reporting. It would also double the demand for resources committed to sexual assault cases, from the police investigation all the way through to corrections.
A new climate of public opinion condemns sexual predation like never before. (7) Therein lies an important opportunity for reform. Political leaders have fresh incentives to give serious consideration to new policy proposals that offer some hope of improving the legal system's response to sexual assault. (8)
This Article argues that Congress should make forcible rape a federal crime to the limits of the Commerce Clause. (9) Premised on proof of a nexus with interstate commerce, the Hobbs Act makes robbery a federal crime, (10) the Federal Kidnapping Act makes kidnapping a federal crime, (11) and the federal carjacking statute creates a federal crime of forcible theft of vehicles. (12) In addition, Congress took action against forced participation in commercial sex by making human trafficking "in or affecting interstate or foreign commerce" a federal crime. (13)
The Supreme Court's decision in United States u. Morrison struck down the civil cause of action authorized by the Violence Against Women Act of 1994. (14) The Act, however, did not require case-specific proof of a commerce nexus. (15) This Article proposes a new offense that is modeled on federal criminal statutes that include such jurisdictional elements. (16) The federal courts have heard thousands of these federal prosecutions for robbery, carjacking, kidnapping, and human trafficking since Morrison. (17)
How many rapes the commerce power might reach is uncertain. Clearly, the commerce power does not reach all sexual assaults. (18) However, it could reach a very significant number. (19) Some rape victims are themselves interstate or foreign travelers. (20) Many rapes involve use of the "channels" or "instrumentalities" of commerce, such as the Internet or motel rooms. (21) Many rapes occur at the workplace, and are already subject to federal regulation under Title VII. (22) Many others victimize workers in the commercial sex market. (23)
Wherever the courts mark the limit of the commerce power, Congress clearly has constitutional power to make rape a federal crime to the limits of that power, just as with gun possession by felons, robbery, and human trafficking. (24) What good might come of this?
First, deeply embedded social attitudes--"rape myths"--have made enforcement of even traditionally defined forcible rape offenses difficult. Police, prosecutors, and judges embrace these myths only a little less widely than citizens called for jury duty. (25) Effectively enforcing even the narrow definition of rape as penetration by forcible compulsion requires a legal, and thus social, battle of attrition. (26) Victory will be measured not by convictions, but by a change in social norms. (27) In that battle, more righteous prosecutions may be lost than won. Only the federal sovereign has the resources to fight that battle. (28)
Second, mass incarceration, with a dramatic racially disparate impact, is indeed a cause of national concern. (29) Those who see possessory offenses far removed from actual violence as problematic generally see federal criminal law as the paradigmatic example of what is wrong with the overall system. (30) If federal rape prosecutions were simply superimposed on the existing system, and independently financed, all the good that one might hope for would be finally putting enough force into the fight against rape to make some progress. (31) The woes of mass incarceration would be aggravated. (32) In the real world, however, a new commitment, especially if invested in a new bureau with powerful supporters elsewhere in the government, could not help but draw resources away from drug and firearms cases. (33)
Federal agents, prosecutors, magistrates, and judges are rightly seen as something of an elite. (34) Federal sentences are generally more severe than their state counterparts. (35) Certain federal procedures give some tactical advantages to prosecutors in rape cases. (36) The dual-sovereign doctrine, which defines conduct offending both state and federal law as two distinct offenses under the Double Jeopardy Clause, would enable limited reconsideration of egregiously irrational acquittals. (37) In real-world rape cases, federal heat has realistic prospects of finally turning the tide.
Part I documents the continued high rate of sexual assault and low rates of reporting, clearance, and conviction. Part II assesses the commerce power's reach over many, but far from all, sexual assaults. Part III makes the case that a federal law against rape would improve rape enforcement and federal criminal justice generally. Part IV addresses foreseeable objections premised on federalism, feminism, procedural fairness, and systemic feedback loops.
Appendix I offers model language for a federal law against rape, modeled on the Hobbs Act and the existing federal sexual assault laws applicable to the government's maritime and territorial jurisdiction. Appendix II provides model language for the creation of a Bureau of Violent Crimes that would take its place alongside the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), and Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in the Justice Department (DOJ). A separate bureau would not only enforce the new federal rape statute, but other federal laws against violent crime. The two proposals are related but distinct. A federal rape law is doubly justified by the need for more effective enforcement and by the advantages of reorienting federal criminal law away from contraband offenses and toward violent crimes. A new enforcement agency would both give teeth to the new rape statute and mark a more general turn toward crimes of violence.
STATE ENFORCEMENT ALONE HAS MADE LITTLE PROGRESS AGAINST RAPE
Criminal law aims to condemn past offenses and prevent future ones. (38) To convict the guilty, the system needs a reported rape, an arrest by police, a charging decision by prosecutors, and either a guilty plea or a conviction by a jury. If enough offenses are thus punished and denounced, it is plausible to believe that the frequency of the crime will decline. (39) How well have the states been doing the job?
Extent and Trend of Victimization
The FBI's Uniform Crime Reports (UCR) provide data on the frequency of crimes reported to law enforcement and the frequency of arrests. (40) Until 2013, the UCR system recorded reports of rape defined as vaginal penetration by force without consent. (41) In 2013, the FBI redefined rape to include all forms of sexual penetration without consent. (42) This new definition includes oral and anal penetration and drops the force requirement. (43) In the years since, the UCR gives statistics for both the "revised definition" (penetration without consent) and...