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Rape in Context: Lessons for the United States from the International Criminal Court

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Rape in Context: Lessons for the United States from the International Criminal Court RAPE IN CONTEXT: LESSONS FOR THE UNITED STATES FROM THE INTERNATIONAL CRIMINAL COURT Caroline Davidson† “Sex without consent is rape. Full-stop.”1 —Joe Biden “Consent is a pathetic standard of equal sex for a free people.”2 —Catharine MacKinnon The law of rape is getting a rewrite. Domestically and internationally, major efforts are underway to reform rape laws that have failed to live up to their promises of seeking justice for victims and deterring future sexual violence. The cutting edge of international criminal law on rape eschews inquiries into consent and instead embraces an examination of coercion or a coercive environment. By contrast, in the United States, rape reform discussions typically center on consent. The American Law Institute’s proposed overhaul of the Model Penal Code’s provision on sexual assault carves out a middle ground and introduces, in addition to the traditional crime of forcible rape, separate sexual assault offenses based on coercion and lack of consent. This Article compares these two trajectories of rape reform and asks whether, as Catharine MacKinnon has suggested, U.S. law ought to follow the lead of international criminal law and define rape in terms of coercive inequalities. † Associate Professor, Willamette University, College of Law. I would like to thank professors Aya Gruber, Darryl Robinson, Aaron Simowitz, Andrew Gilden, Laura Appleman, Keith Cunningham-Parmeter, and Karen Sandrik for their very helpful suggestions. I am also indebted to fellow participants in the American Society for International Law’s workshop on International Criminal Law at Southern Methodist University and the International Law workshop at William & Mary Law School for their insightful comments and to Benjamin Eckstein for excellent research assistance. 1 Sarah Ashley O’Brien, Joe Biden: ‘Sex Without Consent Is Rape. Full-Stop.,’ CNN (June 14, 2017, 5:23 PM), http://money.cnn.com/2016/06/14/news/joe-biden-united-state-of- women/index.html (quoting then Vice-President Joe Biden’s speech at the White House’s inaugural United State of Women Summit). 2 Catharine A. MacKinnon, Rape Redefined, 10 HARV. L. & POL’Y REV. 431, 465 (2016) [hereinafter MacKinnon, Rape Redefined]. MacKinnon is a leading feminist scholar, typically associated with “radical feminism,” also known as “dominance” or “structural” feminism. She also served as the Special Gender Adviser to the International Criminal Court Prosecutor from November 2008 to June 2012. See INT’L CRIMINAL COURT: OFFICE OF THE PROSECUTOR, POLICY PAPER ON SEXUAL AND GENDER-BASED CRIMES, 42 n.92 (June 2014) [hereinafter OTP Policy Paper on Sexual and Gender-Based Crimes], https://www.icc-cpi.int/iccdocs/otp/OTP-Policy- Paper-on-Sexual-and-Gender-Based-Crimes--June-2014.pdf. 1191 1192 CARDOZO LAW REVIEW [Vol. 39:1191 Ultimately, this Article concludes that adopting the international criminal coercion test in U.S. rape law would do more harm than good. Instead, it outlines more modest, but workable, lessons the United States can learn from the international law of rape. TABLE OF CONTENTS INTRODUCTION .............................................................................................................. 1192 I. THE EVOLUTION OF U.S. LAW OF RAPE AND THE CONSENT REVOLUTION ........ 1197 II. THE EVOLUTION OF THE LAW OF RAPE AND THE EMERGENCE OF “COERCIVE ENVIRONMENT” RAPE IN INTERNATIONAL CRIMINAL LAW ..... 1206 III. TRANSLATING COERCION INTO DOMESTIC LAW ............................................... 1218 A. Merits of a Coercion Analysis in the International Context ............. 1219 B. Merits of a Coercion Analysis in Domestic Rape Law ....................... 1222 C. The Challenges of Using a Coercion Standard in the Domestic Context ..................................................................................................... 1224 IV. PROPOSAL .............................................................................................................. 1230 CONCLUSION................................................................................................................... 1236 INTRODUCTION Change is everywhere in rape law, and this is largely a good thing. Reflecting what Catharine MacKinnon calls a “new era” in international criminal law’s treatment of gender crimes,3 the International Criminal Court (ICC) has issued its first conviction of a defendant for sexual violence in Prosecutor v. Bemba Gombo.4 The court’s judgment in Bemba embraced a definition of rape that eliminated consent from the equation and instead relied on sexual penetration stemming from use of coercion or a “coercive environment.”5 In the United States too, change is in the air, but it seems to be headed in a different direction. The #MeToo movement and recent high profile cases of sexual predation in the workplace and by people in positions of authority (e.g., Hollywood,6 U.S. gymnastics7) may be 3 Catharine A. MacKinnon, Creating International Law: Gender as Leading Edge, 36 HARV. J.L. & GENDER 105, 110–11 (2013). 4 Prosecutor v. Bemba Gombo, No. ICC-01/05-01/08, Judgment (Mar. 21, 2016) [hereinafter Bemba Trial Judgment], https://www.icc-cpi.int/CourtRecords/CR2016_ 02238.PDF. 5 Id. ¶¶ 102–04. 6 See, e.g., Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. TIMES (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/ harvey-weinstein-harassment-allegations.html (discussing allegations not only of forcible rape or even non-consensual sex, but also of coercion stemming from Weinstein’s power in Hollywood); Ronan Farrow, From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s 2018] RAPE IN CONTEXT 1193 broadening the public’s conception of sexual assault,8 but the clear trend in the United States has been to equate rape or sexual assault with non- consensual sex.9 Within the past few years, California, New York, Connecticut, and Illinois have passed affirmative consent laws in an attempt to address the issue of sexual assaults on college campuses,10 and colleges nationwide have been scrambling to keep pace with Title IX and other federal requirements for handling alleged sexual misconduct.11 Meanwhile, in the realm of criminal law, the American Law Institute (ALI)12 is in the midst of revising the 1962 Model Penal Accusers Tell Their Stories, NEW YORKER (Oct. 23, 2017), https://www.newyorker.com/news/ news-desk/from-aggressive-overtures-to-sexual-assault-harvey-weinsteins-accusers-tell-their- stories. 7 USA Gymnastics Doctor Faces 25 Years in Prison After Guilty Plea to Molesting Girls, GUARDIAN (Nov. 22, 2017, 11:49 PM), https://www.theguardian.com/us-news/2017/nov/22/ usa-gymnastics-doctor-larry-nassar-plea-deal-25-years (“‘He convinced these girls that this was some type of legitimate treatment,’ assistant attorney general Angela Poviliatis told a judge last summer. ‘Why would they question him? Why would they question this gymnastics god?’”). 8 Compare Anne M. Blaschke, #MeToo Is Undoing the Devil’s Bargain of the 1990s, WASH. POST (Dec. 7, 2017), https://www.washingtonpost.com/news/made-by-history/wp/2017/12/07/ metoo-is-undoing-the-devils-bargain-of-the-1990s/?utm_term=.97ac70330b0b (discussing #MeToo in terms of coercion and power inequality), with Mary Elizabeth Williams, Aziz Ansari and #MeToo Backlash: We Won’t Stop Talking About Consent, SALON (Jan. 16, 2018, 12:11 PM), https://www.salon.com/2018/01/16/aziz-ansari-and-metoo-backlash-we-wont-stop- talking-about-consent (defending the #MeToo movement but, despite acknowledging that consent is a low bar, retaining the framing device of consent: “A slew of columnists say #MeToo has gone too far—it hasn’t. The conversation about consent won’t be shut down”). 9 Amanda Taub, Trump Recording Narrows Divide on Sexual Assault, N.Y. TIMES (Oct. 22, 2016), https://www.nytimes.com/2016/10/23/us/trump-recording-narrows-divide-on-sexual- assault.html; see also Deborah Tuerkheimer, Rape on and off Campus, 65 EMORY L.J. 1, 8 (2015) (arguing that the “settled cultural consensus” is that “consent is now generally viewed as the essence of lawful sex”); Samuel W. Buell, Culpability and Modern Crime, 103 GEO. L.J. 547, 571–75 (2015) (noting that “[t]he chief legal development in [law reform of rape] has been the placement of consent at center stage of virtually all law reform discussions and some newer statutes and doctrine”). 10 See AFFIRMATIVE CONSENT, http://affirmativeconsent.com/affirmative-consent-laws- state-by-state (last visited Oct. 29, 2017); Kevin de León & Hannah-Beth Jackson, Why We Made “Yes Means Yes” California Law, WASH. POST (Oct. 13, 2015), https:// www.washingtonpost.com/news/in-theory/wp/2015/10/13/why-we-made-yes-means-yes- california-law/?utm_term=.0fc2c8586644; Bonnie Miller Rubin, To Combat Sexual Assault, Colleges Say Yes to Affirmative Consent, CHI. TRIB. (Oct. 29, 2015), http:// www.chicagotribune.com/news/ct-college-sexual-assault-affirmative-consent-met-20151029- story.html. 11 See generally Jacob Gersen & Jeannie Suk, The Sex Bureaucracy, 104 CALIF. L. REV. 881, 889 (2016) (arguing that as “nonconsent increasingly became the line separating legal and illegal sexual conduct, the concept expanded: lack of consent grew to mean more than physical or verbal resistance or objection to sexual conduct, and today there is a live debate over whether consent should mean ‘affirmative consent’ as opposed to lack of objection”). 12 The ALI is an independent organization in the United States whose mission is to clarify, modernize, and otherwise improve the law. The
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