Rape as a Violent Crime in Aid of Racketeering Activity

Article excerpt


The United States Sentencing Commission's 1995 description of rape (1) as a "growing problem" was an understatement. (2) The numbers are shocking. For instance, "[i]n 1993, 100,200 forcible rapes were attempted and 40,730 were completed." (3) This figure includes only reported rapes, and due to massive underreporting, the number of rapes in 1991 is estimated at 173,000--62% greater than the number reported. (4) From 1981 to 1991, the United States experienced a 28% increase in reported rapes--more than double the 11.9% growth in the nation's population. (5) These numbers remain high. The Department of Justice found that in 2008 there were 203,830 victims of rape or sexual assault over the age of twelve--roughly one sexual assault every three minutes. (6) While the incidence of sexual assault has fallen steadily since 1973, the overall numbers remain staggering. (7)

Statistics indicate that most rapists are never punished for their crimes. (8) Only 10% of rapes are reported to the police, and only 20% of those reported perpetrators are convicted of sexual assault. (9) Doing the math, that means that only 2% of all rapists are punished, while 98% go free. (10) State courts handle virtually all rape prosecutions, except for rapes occurring on federal land or in federal facilities, (11) but they cannot keep up. Accordingly, there is a compelling need for federal resources to be brought to bear on this problem. (12)

Congress has acknowledged the need for federal involvement in enforcing laws against organized crime, as well as violence against women, and has used its commerce power (13) to enact numerous laws to combat these crimes, such as the Violence Against Women Act, (14) the Hobbs Act, (15) and the Racketeer Influenced and Corrupt Organizations (RICO) statute. (16) In order to meet the goals of RICO, Congress also enacted the Violent Crimes in Aid of Racketeering Activity (VCAR) statute. (17)

Recognizing that the federal government is in the best position to enforce laws against violent members of organized crime the Senate Judiciary Committee, prior to the enactment of VCAR, noted that:

   [T]he need for Federal jurisdiction is clear, in view of the
   Federal Government's strong interest, as recognized in existing
   statutes, in suppressing the activities of organized criminal
   enterprises, and the fact that the FBI's experience and network of
   informants and intelligence with respect to such enterprises will
   often facilitate a successful Federal investigation where local
   authorities might be stymied. Here again, however, the Committee
   does not intend that all such offenses should be prosecuted
   federally. Murder, [kidnapping], and assault also violate State law
   and the States will still have an important role to play in many
   such cases that are committed as an integral part of an organized
   crime operation. (18)

For instance, the Federal Bureau of Investigation has the ability to create individual gang task forces to fight particularly powerful gangs, has a National Gang Intelligence Center, and has funding for forensic resources and other crime-fighting tools. (19)

Many rapes involve group sexual assault, particularly by gang members. Even as early as 1958, group rape made up roughly 27% of reported rapes, and pair rape constituted 16% of reported rapes. (20) A study by the Department of Justice reveals that rape victims identified the offenders as gang members in 7,954 rapes in 2003. (21) Although individual murders, assaults, and rapes are certainly state crimes, severing them from a RICO prosecution or never including them at all in a RICO case poses a danger that these crimes will never be prosecuted at any level. Without appropriate prosecutorial care, federal jurisdiction may hinder the appropriate punishment of gang-related rapes. A state may ignore the criminal activity of a gang if it assumes that the federal government is prosecuting the gang for all of its criminal activities or if the state simply lacks the resources to prosecute. …