In what is being called the “Post-Weinstein era,” victims of sexual assault and harassment are finally being believed. This no doubt is overdue, but in the context of rape, believing the victim will not be enough.
Three reforms are essential to how we convict and punish rapists.
First, the way states currently define the crime of rape does not target the conduct of unwanted sex. In the United States, rape was initially defined by unwanted sex accompanied by an element of force. The proof of force was and continues to be a high bar to meet, usually requiring threats, physical violence, actual injury, or weapons.
In 2017, a California court reversed a rape conviction because the evidence showed that a group of four men “lured” a 15-year-old girl into a house, got her “falling-down drunk” and then penetrated her while she was unconscious.
There was no doubt over her lack of consent. But that was not relevant. The men’s actions did not fall in the definition of rape because the men did not use force during the intercourse. This is not an anomaly; 46 states currently define rape with this additional requirement of force.
But why is force part of the definition of rape?
Before the 1960s, all sex outside of marriage was criminalized in the offenses of adultery (defined as sex with a married person) or fornication (defined as sex by unmarried people). An element of force was needed to prevent a rape victim from unwittingly confessing to these crimes when reporting the rape against her.
This observation is not academic. As recently as 2013, a Norwegian tourist in Dubai was arrested and imprisoned for the crime of adultery after reporting that a man raped her.
Starting in the 1980s, 35 states reformed their laws to include a crime of rape that did not use force. Due to the fears that women would falsely accuse men (what will likely be an anachronistic belief from the Pre-Weinstein era), the states narrowly limited consent to be actionable only in codified power imbalances, such as a prison guard and prisoner, therapist and patient, or certain family members.
The first needed reform to the definition of the crime of rape, then, is to abandon the definitions of rape used by 42 states.
Rape should not be limited to unwanted sex when there is also force or only arising in specific contexts. Rather, all states should simply define rape as only eight currently do: sex without the consent of the other person. Full stop.
The Question of Liability
Second, unlike homicide and theft offenses, rape law has not benefited from having liability arise from more sophisticated mental states that define the crime. If a person drives a car into a crowd and kills someone, it is a tragedy if the driver had fallen asleep at the wheel. But the same death will be prosecuted as a murder if the driver had an intent to kill someone, disregarded the risk of death, or showed callous indifference over whether someone would be hurt.
Known as malice, this capacious mental state is effective in sorting out tragedies from murder.
In his book Missoula, Jon Krakauer interviewed a juror about her reasons for acquitting an accused rapist, which is a significant interview given that Montana is one of the eight states that define rape in its broadest reach as sex without the consent of another.
An important insight from this interview is that even when rape is defined broadly, the mens rea of knowledge requires proof that the defendant in fact knew he was having sex without his partner’s consent.
When framed in this manner, it is possible for the jury to both believe a woman’s testimony that she was raped but not have evidence that the defendant knew the victim was not consenting.
The second essential reform, then, is establishing a new crime of “rape by malice,” a crime that criminalizes both those who knew—or deliberately did not care to know—if their advances were consented to.
Unwanted sex arises from multiple motivations. A mens rea for rape should be flexible and responsive enough to criminalize as much unwanted sex as possible without criminalizing lawful or wanted sex. Other crimes such as homicide have expansive definitions to capture all killings made by the predators, the fools, and the careless. A new crime of rape by malice would do the same.
Rethink Rape Sentencing
Third, these proposed reforms to the redefinition of rape would lead to more convictions. But convicting more rapists under our current criminal justice system should not be welcomed. On paper, 19 states have respective maximum terms of 99 years, 100 years, and life sentences. And 12 states begin at 10 years.
Although only six states and the federal government even compile data on the number and lengths of sentences, where data is available, the range in actual sentences for rape was from eight to 30 years.
These numbers should be alarming. Whereas 40 percent of people convicted of all felonies will be punished with prison terms, about 90 percent of all rapists will receive a prison sentence, and a very lengthy one at that.
In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows. In 35 comparable countries, the vast majority impose prison terms that do not exceed five years. This short sentence does not at all communicate that the crime was not heinous, the offender not depraved, or the victim does not merit justice.
In the mass incarceration era, the U.S. makes prisoners suffer with long sentences and harsh conditions, but that only results in high recidivism rates of about 75 percent for all crimes.
Canada, by contrast, provides evidence-based treatment that has resulted in the recidivism rate for sex offenders to fall from 33.2 percent to 14.5 percent. For first-time sex offenders, recidivism rates fell from 27.5 percent to 8.8 percent.
If the goal is to reintegrate into society convicted rapists who will not reoffend, the third essential reform is to impose shorter sentences for rapists. It is shorter sentences and actual treatment that succeed over calls to simply lock them up.
The third reform of shorter sentences also will serve the victims by leading to more convictions. Forty years ago, states faced an analogous problem in figuring out the proper punishment for a driver who killed another. The crime could fit under manslaughter, but when the prosecutor charged this serious offense, the jurors balked and did not convict—knowing from common sense that manslaughter carried a lengthy prison sentence.
In response, state legislatures crafted the new offense of involuntary manslaughter, which reduced the punishment for the killing from 20 to two years. Not surprisingly, conviction rates increased.
Many recoil at light sentences for rapists, on the assumption that a light sentence is letting-off a very bad person. But it is a mistake to contend that the problem with mass incarceration starts and ends with drug offenders. Ninety-five percent of all prisoners leave prison.
We can no longer be outraged by crime and continue to ignore what happens to the criminal.
National surveys of crime victims lend support to the policy goals of rehabilitation over lengthier sentences; 82 percent support “increasing education and rehabilitation services for the people in the justice system.”
In this respect, reforms to rape sentences must be accompanied by a call for more effective criminal justice intervention rather than simply incarceration and more of it.
Instead of channeling outrage for the first rape, sentencing must also meaningfully seek to rehabilitate and prevent a second.
Kari E. Hong, an Assistant Professor at Boston College Law School, teaches immigration and criminal law. She founded a clinic representing non-citizens with criminal convictions in the Ninth Circuit, and has argued over 100 Ninth Circuit cases and 50 state criminal appeals. Her article A New Mens Rea For Rape: More Convictions and Less Punishment can be downloaded at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3060709. Readers’ comments are welcome.