In her article, Rape, Susan Estrich identifies two types of rape: "traditional" rape (a violent rape committed by a stranger) and "nontraditional" rape (a less violent rape committed by an acquaintance of the victim).(1) Estrich argues that "nontraditional" rapes should be subject to criminal penalties, "albeit reduced ones."(2) This Note challenges Estrich's conclusion that nontraditional rape warrants a less severe penalty than traditional rape. Instead, this Note proposes and defends a sentencing structure in which the penalty for nontraditional rape is the same as that for traditional rape. Moreover, this base sentence should be significant. Force, if considered at all, should be treated as an aggravating factor that enhances the base sentence for rape; the absence of force, however, does not justify a reduction in the base sentence. The cornerstone of this proposal is that there is only one crime of rape.(3)
Part II describes the underlying assumptions of this Note. Part III explores the different harms of rape. It first focuses on a narrow interpretation that identifies physical injury as the only harm of rape. It then proposes a broader perspective which recognizes that the harm of rape includes the injury to a victim's psyche and sense of trust as well as the harm done to all women, both victims and nonvictims. An alternative definition of the harm of rape is a prerequisite to the analysis developed in Part IV. Part IV first describes Michel Foucault's proposal for assigning criminal penalties in accordance with the disorder a crime is capable of initiating. It then combines the broader definition of rape's harm with Foucault's analysis to conclude that, at a minimum, nontraditional rape should be penalized commensurately with traditional rape because of the significant threat the former poses to the social fabric. Part V describes and applies to the rape context sociological models which support this Note's sentencing proposal. Finally, Part VI explores whether economic models of crime support commensurate sentencing.
It is common to distinguish between two types of rape, violent stranger rape and nonviolent nonstranger rape.(4) This dichotomy, however, conflates two separate issues: the level of force used to commit the rape and the nature of the relationship between the attacker and his victim. Recognition of these two distinct axes--level of force and relationship--may counsel expanding the range of possible rape scenarios to include not only violent stranger rape and nonviolent nonstranger rape, but also nonviolent stranger rape and violent nonstranger rape.
Considering a broader range of rape scenarios, however, seems to have limited analytic value. As a practical matter, nonviolent stranger rapes probably do not occur. Because the victim and attacker do not know each other, it is likely that an attacker must use some level of force--at a minimum, a verbal threat or brandishing a weapon--to gain initial control over his victim. Compared to a rape in which the victim knows her attacker, a stranger rape is "more likely to involve aggression by the offender (threats of bodily harm, hitting, slapping, and use of a weapon)."(5) As a result, this Note retains the two-prong approach. The term "stranger rape" assumes that some level of violence or force is involved, whereas the term "nonstranger rape" assumes that violence or force is not involved.
Furthermore, this Note's vision of rape is more sympathetic to the characterization of rape as a crime of violence. An alternative approach argues that rape is a crime of sex because it is based upon "accepted sexual practices that privilege male physical aggression and violence."(6) Catharine MacKinnon maintains that a woman is raped whenever she has sex and feels violated.(7) "Compare victims' reports of rape with women's reports of sex. They look a lot alike.... In this light, the major distinction between intercourse (normal) and rape (abnormal) is that the normal happens so often that one cannot get anyone to see anything wrong with it. …