A New Mens Rea for Rape: More Convictions and Less Punishment
A NEW MENS REA FOR RAPE: MORE CONVICTIONS AND LESS PUNISHMENT Kari Hong* INTRODUCTION In what is now the “Post-Weinstein era,” victims of sexual assault and harass ment are finally being believed. As much as this is overdue, in the context of rape, simply believing victims will not be enough to fix endemic problems arising in how rape is defined, prosecuted, and punished. This Article grapples with two problems presented by contemporary prosecutions of acquaintance rape. The first problem is that it is too difficult to obtain a conviction for rape under existing definitions of the crime: of every 1000 rapes that are estimated to occur, seven will result in a conviction.1 By contrast, of every 1000 estimated robberies, twenty-two will result in a conviction.2 Of every 1000 estimated assault and batteries, forty-one result in conviction.3 Stated another way, reported rapes are convicted at only 1/3 of the rate of robberies and 1/6 the rate of assaults. This discrepancy is odd because a rapist is known to the victim in approximately 80% of the attacks, and the robber is known to the victim in approximately 25% of those crimes.4 Knowing the identity of one’s assailant should make the conviction rate for rape higher than * Assistant Professor, Boston College Law School. Thanks to the University of Montana Blewett School of Law, William & Mary Law School, Southwestern Law School, and the Boston College Law School faculty workshop where I presented prior drafts. I am grateful to Sharon Beckman, Suzannah Callaghan, Catherine Carpenter, Mike Cassidy, Thomas Carey, Kevin Cole, Brian Galle, Kent Greenfield, Aya Gruber, Patricia McCoy, Wendy Murphy, Gowri Ramachandran, Diane Ring, Karyn Ridgeway, Susan Ridgeway, Carol Sanger, Natalya Shnitser, Ken Simons, Andrew Snow, Rachel VanLandingham, Mike Vitiello, and Catharine Wells for feedback and suggestions.
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