A Heinous Crime, Heinously Unpursued Jon Krakauer’s Missoula has shone a bright light on a dark sector of American law. The American legal system exists to protect American citizens from harmful or unlawful acts, and by most reasonable metrics, it accomplishes this goal. However, socio-legal scholars have noticed a peculiar phenomenon that has set in over a long period of time, where an especially egregious crime – rape – has continued to go under the radar, with its perpetrators going mysteriously unpunished. Missoula sparked a major discussion about the law’s handling of rape cases, with its myriad depictions of police officers, county attorneys, and even medical clinic employees showing how gargantuan the task in front of women wishing
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For instance, the amount to which a victim must actively resist their attacker has been hotly debated throughout our country’s history. At first, victims had to prove that they had done their “utmost” to resist, and sexual assault could only be counted as rape if physical force was involved; threats did not count (Levit and Verchick, 3876-3911). Furthermore, even though statutes have been changed to relax the law and make only “reasonable” resistance the required evidence that victims fought against their rapists, some states refuse to accept simple verbal rebukes as reasonable resistance, unnecessarily complicating cases (Levit and Verchick, 3911). Another problem comes in the form of the specific wording of some states’ rape laws. For example, California’s rape laws describe rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator” (Westlaw), which makes marital rape an offense you cannot prosecute in California. Rape law also “[assumes] that women lie about their nonconsent to sexual activity for various reasons” (Levit and Verchick, 3911), thus giving the accused much more power than the accuser. This considerable power imbalance further complicates an already-sensitive area of law, and stands in stark contrast to other standing laws, like sexual harassment-related holdings, which instead favor the accusers over the accused (Berk lecture, 10/24). Why have these contradictory methodologies? Why place undue suspicion on people who are most likely hurting and
For instance, the amount to which a victim must actively resist their attacker has been hotly debated throughout our country’s history. At first, victims had to prove that they had done their “utmost” to resist, and sexual assault could only be counted as rape if physical force was involved; threats did not count (Levit and Verchick, 3876-3911). Furthermore, even though statutes have been changed to relax the law and make only “reasonable” resistance the required evidence that victims fought against their rapists, some states refuse to accept simple verbal rebukes as reasonable resistance, unnecessarily complicating cases (Levit and Verchick, 3911). Another problem comes in the form of the specific wording of some states’ rape laws. For example, California’s rape laws describe rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator” (Westlaw), which makes marital rape an offense you cannot prosecute in California. Rape law also “[assumes] that women lie about their nonconsent to sexual activity for various reasons” (Levit and Verchick, 3911), thus giving the accused much more power than the accuser. This considerable power imbalance further complicates an already-sensitive area of law, and stands in stark contrast to other standing laws, like sexual harassment-related holdings, which instead favor the accusers over the accused (Berk lecture, 10/24). Why have these contradictory methodologies? Why place undue suspicion on people who are most likely hurting and