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Defenseless Against Rape: Outdated Laws and a Proposed Legal Solution American University Journal of Gender, Social Policy & the Law Volume 28 Issue 1 Article 1 2019 Defenseless Against Rape: Outdated Laws and a Proposed Legal Solution David E. Missirian Bentley University, [email protected] Marianne D. Kulow Bentley University, [email protected] Follow this and additional works at: https://digitalcommons.wcl.american.edu/jgspl Part of the Human Rights Law Commons, and the Law and Gender Commons Recommended Citation Missirian, David E. and Kulow, Marianne D. (2019) "Defenseless Against Rape: Outdated Laws and a Proposed Legal Solution," American University Journal of Gender, Social Policy & the Law: Vol. 28 : Iss. 1 , Article 1. Available at: https://digitalcommons.wcl.american.edu/jgspl/vol28/iss1/1 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Journal of Gender, Social Policy & the Law by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Missirian and Kulow: Defenseless Against Rape: Outdated Laws and a Proposed Legal Solu DEFENSELESS AGAINST RAPE: OUTDATED LAWS AND A PROPOSED LEGAL SOLUTION DAVID E. MISSIRIAN' AND MARIANNE D. KULOW 2 I.Introduction: Legal Limits on use of Self-Defense Against Rape Leave M any W omen Defenseless.......... ... .................... 2 II.What is Rape? .................................. ......... 5 A: Rape's Long and Sordid History .................. 6 B. The Slow Road to Women's Protection .. ............. 9 C. Statutory Implications for Seriousness of Rape Injuries .. 11 1. Massachusetts as Exemplar............................ 12 2. Other States and the Uniform Code of Military Justice also Characterize Rape as an Injury Something less than "Serious" . ................ ................. 16 III.Interface of Self-Defense Law and Rape....... ................... 19 A. Common Law Self-Defense .................... 19 B. Statutory Self-Defense .......... l........21 C. Correlation Between State Gun Laws and State Self- Defense Laws ........................ ...... 24 IV.Conclusion: A Legislative Correction is Needed . ............ 25 A. The Option of Deadly Force is Often Vital for Rape Victims ...................... ............ 25 B. Simple, but Powerful, Proposal .................. 27 1. B.A. Brandeis University, J.D. University of Tulsa; Assistant Professor of Law and Tax, Department of Law, Taxation and Financial Planning, Bentley University, Waltham, MA. 2. B.A. Harvard University, M.A. University of Liverpool, J.D. Boston University; Gregory H. Adamian Professor of Law, Department of Law, Taxation and Financial Planning, Bentley University, Waltham, MA. The authors wish to thank Amanda Pine for her research assistance and Bentley University for the research support. 1 Published by Digital Commons @ American University Washington College of Law, 2019 1 American University Journal of Gender, Social Policy & the Law, Vol. 28, Iss. 1 [2019], Art. 1 2 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 28:1 I. INTRODUCTION: LEGAL LIMITS ON USE OF SELF-DEFENSE AGAINST RAPE LEAVE MANY WOMEN DEFENSELESS Rape and the defense of rape using deadly force is that combination of legal elements which generates both passion and legal controversy. Today, few crimes engender more outrage and visceral disgust than rape. As the #MeToo movement3 has so dramatically illustrated, current public reactions to rape stem, in part, from a modem awareness of the full impact of rape on victims. The Centers for Disease Control (CDC) tells us that the injuries rape causes are often pervasive and span a wide spectrum of physical, psychological, and social injuries. 4 Physical injuries include pregnancy;5 long-term physical injuries include chronic pain, gastrointestinal disorders, gynecological complications, migraines, sexually transmitted infections, 6 cervical cancer,' and genital injuries." Rape also causes both immediate and chronic psychological injuries. Immediate psychological consequences include shock, denial, fear, confusion, anxiety, withdrawal, shame, guilt, nervousness, distrust of others, and symptoms of post-traumatic stress 3. See, e.g., Christina Pazzanese & Colleen Walsh, The Women'sRevolt: Why Now, and Where to, THE HARVARD GAZETTE (Dec. 21, 2017), https://news.harvard.edu/ gazette/story/20 17/12/metoo-surge-could-change-society-in-pivotal-ways-harvard- analysts-say/. 4. See generally Violence Prevention Sexual Violence: Consequences, CENTERS FOR DISEASE CONTROL AND PREVENTION, http://medbox.iiab.me/modules/en- cdc/www.cdc.gov/violenceprevention/sexualviolence/consequences.html (last visited Sept. 29, 2019) (listing all consequences referenced in text and compiling primary sources to document each consequence); see also Preventing Sexual Violence: What are the consequences?, CENTERS FOR DISEASE CONTROL AND PREVENTION https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html?CDCAArefVa l=https%3A%2F%2Fwww.cdc.gov%2Fviolenceprevention o2Fsexualviolence%/"2Fcon sequences.html (last visited Sept. 29, 2019). 5. See Melissa Holmes et al., Rape-relatedpregnancy: estimates and descriptive characteristicsfrom a nationalsample ofwomen, AM J OBSTET GYNECOL (1996). 6. See Jewkes R. et al.,World Report on Violence and Health. WORLD HEALTH ORGANIZATION. (2002); see also Campbell J, et al., Intimate partner violence and physical health consequences. Arch Intern Med. (2002) http://www.ncbi.nlm.nih.gov/ pubmed/12020187; see also Molly Paras et al. Sexual abuse and ifetime diagnosis of somatic disorders: a systematic review and meta-analysis, J AM MED ASSOC (2009); see also Judith McFarlane et al. Intimate partner sexual assault against women: frequency, health consequences, and treatment outcomes, OBSTET GYNECOL (2005). 7. Ann Coker, Violence against women raises risk of cervical cancer, J WOMENS HEALTH (2009). 8. Marilyn Sawyer Sommers, Defining patterns of genital injury from sexual assault: A revie, TRAUMA VIOLENCE ABUSE (2007). https://digitalcommons.wcl.american.edu/jgspl/vol28/iss1/1 2 Missirian and Kulow: Defenseless Against Rape: Outdated Laws and a Proposed Legal Solu 2019] JOURNAL OF GENDER, SOCIAL POLICY & THE LAW 3 disorder (PTSD). 9 Chronic psychological injuries include depression, 0 generalized anxiety," attempted or completed suicide,1 2 PTSD,13 diminished interest/avoidance of sex,' low self-esteem, and self-blame.'s A final type of injury common to rape victims is a set of negative social impacts. These injuries include strained relationships with family, friends, and intimate partners, less emotional support from friends and family, less frequent contact with friends and relatives, lower likelihood of marriage, and isolation or ostracism from family or community.16 9. Nicole Yuan, et al. The psychological consequences of sexual trauma, NATIONAL ON-LINE RESOURCE CENTER ON VIOLENCE AGAINST WOMEN (2006), http://www.vawnet.org/applied-research-papers/print-document.php?docid= 349; see also Goodman, et al. Violence against women: physical and mental health effects. PartI: Research findings, APPL. PREV. PSYCHOL. (1993); see also Campbell R, et al. An ecological model of the impact of sexual assault on women's mental health, TRAUMA VIOLENCE ABUSE (2009); see also CDC Injury Center Violence Prevention Sexual Violence: Consequences, http://medbox.iiab.me/modules/en- cdc/www.cdc.gov/violenceprevention/sexualviolence/consequences.html (stating that the relevant symptoms of PTSD include emotional detachment, sleep disturbances, flashbacks, and mental replay of assault). 10. See Laura Chen, et al. Sexual abuse and ifetime diagnosis of psychiatric disorders: systematic review and meta-analysis, MAYO CLIN PRO (2010); see also Kathleen Bastile & Sharon Smith, Sexual violence victimization of women: Prevalence, characteristics, and the role of public health and prevention, AM J LIFESTYLE MED (2011); see also Heather Littleton et al. Impairedand incapacitatedrape victims: assault characteristicsand post-assaultexperiences VIOLENCE VICT. (2009). 11. See Laura Chen, et al. Sexual abuse and lifetime diagnosis of psychiatric disorders: systematic review and meta-analysis, MAYO CLIN PRO (2010); see also Kathleen Bastile & Sharon Smith, Sexual violence victimization of women: Prevalence, characteristics, and the role of public health and prevention, AM J LIFESTYLE MED (2011); see also Heather Littleton et al. Impairedand incapacitatedrape victims: assault characteristicsand post-assaultexperiences VIOLENCE VICT. (2009). 12. See Jessica Tomasula et al. The association between sexual assault and suicidal activity in a national sample, SCHOOL PSYCHOLOGY QUARTERLY (2012). 13. See Heidi Zinzow, The role of rape tactics in risk for posttraumatic stress disorder and major depression: results from a national sample of college women, DEPRESSION AND ANXIETY, (2010). 14. See Terri Weaver, Impact of rape on female sexuality: review of selected literature, CLINICAL OBSTETRICS GYNECOLOGY (2009). 15. See Kathleen Basile & Sharon Smith, Sexual violence victimization of women: Prevalence, characteristics, and the role of public health and prevention, AMERICAN JOURNAL OF LIFESTYLE MEDICINE (2011); see also Heather Littleton, Impaired and incapacitated rape victims: assault characteristics and post-assault experiences, VIOLENCE AND VICTIMS (2009). 16. See Jacqueline Golding et al. Sexual assault history
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