Normative Words and the Fundamental Limits of Rape Law Reform
Most rapists will not be held accountable. For every 100 forcible rapes, less than six offenders will be convicted. Since the 1970s, legislatures have been reforming sexual assault laws to hold more offenders accountable, but as I show with a comprehensive review of the research, the reforms do not appear to have worked. I then bring together social science, law, and practice to argue that this is because normative words in the law allow rape myths to enter the legal system. These words existed in the pre-reform laws and still exist in the post-reform law. They remain within the consent element (which is governed by the Confrontation Clause) and the mistake of fact defense (which is governed by the Due Process Clause). Both the Confrontation Clause and the Due Process Clause are fundamentally normative and fundamentally fixed, so normative words will always be in rape law and will always serve as a potential entry point for bias. Faced with these fundamental limits on rape law reform, I provide recommendations for reforms that may help keep some bias from entering the legal system and conclude that the way to improve case processing is to ensure that law enforcement and prosecutors operate free of inaccurate generalizations about rape.
Eric Carpenter, Normative Words and the Fundamental Limits of Rape Law Reform, 74 South Carolina Law Review 351, 2022. Available at https://sclawreview.org/normative-words-and-the-fundamental-limits-of-rape-law-reform/