How We Still Fail Rape Victims: Reflecting on Responsibility and Legal Reform

By Shen, Francis X. | Columbia Journal of Gender and Law, Winter 2011 | Go to article overview

How We Still Fail Rape Victims: Reflecting on Responsibility and Legal Reform


Shen, Francis X., Columbia Journal of Gender and Law


ABSTRACT

Despite over thirty years of rape law reform, rape remains too prevalent, and successful convictions of rapists remain too rare. I argue in this Article that we continue to Jail rape victims because we are too quick to give hi to our instinct to blame and less willing to engage in the careful reflection that would lead us to see more profoundly our collective responsibility for this failure.

The Article proceeds ill five sections. In Section I, I review a number of studies and argue that rape reforms to date, while significant, have nonetheless been inadequate. I then discuss the pervasiveness of rape myths about blame, both over time and in the present day. In Section II, I extend my analysis to rape in the tort system. Drawing on a recent empirical analysis of jury verdicts arid settlements, as well as interviews with practicing plaintiffs attorneys, I argue that unless harm is concrete and visible, we tend to devalue it.

In Section III, I turn my attention to policymaking. Based on a series of empirical studies, I discuss the role of the media and legislators in shaping policy response to sex crimes. I argue that the policy response has often been driven by moral panic rather than careful reflection. In Section IV, I evaluate why reform has Jailed and suggest that the impulse to blame all men or all men in fraternities is overly simplistic. In Section V, I conclude the paper with a reflection on the deeper meanings of rape myths and rape law reform. I argue that to find lasting solutions for the problems of sexual violence we must first look inward. Reflection, leading to collective responsibility and collective action, is the best path to reform.

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[W]e must move on from the reassuring repetition of stale phrases to a new, difficult, but essential confrontation with reality. For the great enemy of truth is very often not the lie--deliberate, contrived and dishonest--but the myth--persistent, persuasive, and unrealistic. Too often we hold fast to the cliches of our

forebears. We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.

--John F. Kennedy (1)

Can you look at yourself in the mirror and say: "I have contributed to the sexual assault of a woman?" If you're like me, not only is the answer no, but the very question is offensive. Me, contribute to someone's rape? Never. How dare you! To buttress our responses, we quickly point to other targets. We might blame the victim, pornography, out-of-control men, the media, the courts, or something else--but whatever it is, we make sure that we stay out of harm's way. We know who we are, and we know that it couldn't possibly be us. After all, we're reading a law review article. We're educated. We're working for change. We are open-minded. We are the good guys here ... aren't we?

Through a series of publications over the past decade, led in part by Jon Hanson and his colleagues at Harvard Law School's Project on Law and Mind Sciences, scholars have begun to challenge legal academia to confront a discomforting possibility: we don't know ourselves as well as we think we do. Through a situationist approach to legal analysis, Hanson and his collaborators have challenged us to think not only about the law, but about ourselves as well. (2) In this article, I employ a situationist approach to revisit the laws of rape and sexual assault.

Specifically, I argue that reflecting on our response to rape will help us better understand why, despite over three decades of rape law reform, we have failed to make significant progress on preventing rape before it happens and prosecuting rape after it happens. In short, I argue that we must all take responsibility for our collective failures in prevention and prosecution of rape.

In taking the situationist approach, I borrow a line from Hanson and colleagues and encourage the reader to "[t]ry to be aware of what you bring to this Article; be aware of how you read, why you are reading, and even that you are reading. …

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