Taking Rape Seriously: Rape as Slavery

New project, published by the Harvard Journal of Law and Gender, and available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1810948.

Introduction excerpted below: 

            In bedrooms and back alleys, at parties, in offices, and within families: rape happens, rape is real.  At this very moment, there are approximately twenty million women in the United States who have been raped during their lifetime,[1] and in one year, over one million women are raped in the United States.[2]  The numbers are staggering, but not unfamiliar.  One in four women are victims[3] of attempted or completed rape in the United States.[4] 

            Despite the devastating and continued prevalence of rape in the United States,[5] estimated state rape conviction rates are as low as two to nine percent of total instances of rape (reported and unreported).[6]  At the state level, a local robber is thirty percent more likely to be convicted than a rapist, and a rape prosecution is twice as likely to be dismissed vis-à-vis a murder prosecution.[7]  Similarly, federal conviction rates for non-rape crimes, such as immigration and narcotics crimes, average as high as ninety-six percent.[8]  In effect, the rift between the widespread perpetration of rape and sexual assault and the minimal prosecution and conviction of rapists[9] questions the commitment and priority of law enforcement, lawmakers, courts, and the public in treating rape as seriously before the law as it is treated in name.  If rape is serious, why don’t we take rape prosecution seriously?

            In the 1980s, rape reform advocates predicted that rape law reforms would create instrumental changes—namely, higher rates of investigation, prosecution, and conviction for rape crimes.[10]  Continuously low conviction rates in the United States, however, indicate that instrumental change has not occurred and that adequate investigation and prosecution of rape is an illusion.[11]  While legal scholars and advocates have raised the issue of impunity for rape and sexual assault crimes in the past,[12] forty years after the emergence of the rape law reform movement in the United States[13] and more than fifteen years after the passage of the Violence Against Women Act (“VAWA”),[14] it is important to reexamine the progress or stagnancy of rape impunity in the United States in order to devise new ways to tackle an old problem.

            This Article identifies and challenges the incongruity between the purportedly accepted gravity of rape crimes and the pervasive continuance of rape impunity in the United States.  This Article argues that rape should be considered a form of slavery prohibited by the Thirteenth Amendment of the Constitution, allowing for the creation of a federal criminal regime to prosecute and prioritize rape in conjunction with state regimes.    

            Part I presents the problem of local or state rape tolerance through the improper legal conceptualization of rape and the inadequate investigation and prosecution of rape crimes.  Discussing the problematic consequences inherent in local rape law, Part I highlights the grading of rape that defines legitimate rape as rape-and or rape-plus and marginalizes “mere” rape as rape-alone or rape-lite, with the latter as less deserving of prosecution than the former.  Part I also reveals that neither rape-and nor rape-alone crimes are adequately investigated or prosecuted. 

            Part II discusses federal rape tolerance by comparing the Supreme Court’s incongruent maximization of congressional authority for the longstanding federal crimes of mail fraud and extortion alongside the Court’s minimization of violence against women as a local problem.  The purposes of this Part are threefold: to explain the current status of rape in U.S. federal law; to compare rape to widely accepted federal crimes; and to reveal federal rape tolerance in the fictional and inconsistent limits of congressional authority advanced by the Court.

            Part III explores the prospect of federal rape law.  Examining the broad intentions and application of the Thirteenth Amendment, Part III challenges Congress’s hesitancy to advance federal anti-rape laws under the Thirteenth Amendment and argues that rape falls within, and is prohibited by, the Thirteenth Amendment.  Rape is slavery.[15]  While the idea that the Thirteenth Amendment might apply to rape will undoubtedly strike some readers as “novel, if not farfetched,”[16] this Article “ask[s] these readers for patience and remind[s] them that, for example, only a generation ago, the ideas that abortion and pornography implicate equality rights for womenideas now widely heldwere seen by many as similarly novel and farfetched.”[17]  Part III also applies and incorporates rape as slavery to existing federal civil rights legislation, concluding with an assessment of the necessity, practical advantages, and challenges involved in the prospective implementation of federal rape law.   

            In order to construct and prosecute rape in a manner consistent with its purported gravity, rape must be effectively prosecuted, prohibited, and abolished under the Thirteenth Amendment.  Continued federal rape tolerance or federal inaction against rape impunity stems from an unwillingness rather than an inability to intervene.  Federal inaction against rape is a constructed choice, not an inevitability. 

[1] Dean G. Kilpatrick, Heidi S. Resnick, Kenneth J. Ruggiero, Lauren M. Conoscenti & Jenna McCauley, Med. Univ. of S.C., Drug-facilitated, Incapacitated, and Forcible Rape: A National Study 2 (2007), available at https://www.ncjrs.gov/pdffiles1/nij/gran….

[2] Id. (citing data from 2006–07).

[3] The terms “victim,” “victim-survivor,” and “survivor” are used interchangeably in this Article.  Where possible, “victim-survivor” is used.  Where victims are not survivors or where criminal law uses the term “victim,” “victim” is employed.

[4] Catharine A. MacKinnon, Sex Equality 753 (2d ed. 2007) (citing, e.g., Mary P. Koss, Lisa A. Goodwin, Angela Browne, Louise F. Fitzgerald, Gwendolyn Puryear Keita & Nancy Felipe Russo, No Safe Haven: Male Violence Against Women at Home, at Work, and in the Community 167–71 (1994) (collecting major studies on rape prevalence completed as of 1994, many showing approximately twenty percent of women raped, some lower, some higher)).

[5] See Women and Violence: Hearing Before the S. Comm. on the Judiciary, 101st Cong. 7, 12 (1990) (statement of Sen. Joseph R. Biden, Chairman, S. Comm on the Judiciary) (describing how a woman is raped every six minutes); Staff of S. Comm. on the Judiciary, 102d Cong., Violence Against Women: A Week in the Life of America 3 (Comm. Print 1992) (reporting that a women has between a one-in-five and one-in-seven chance of being raped); Kilpatrick, et al, supra note 3, at 8 (estimating that one-in-seven U.S. women have been raped at least once during their lifetime); Diana E.H. Russell, Sexual Exploitation: Rape, Child Sexual Abuse, and Workplace Harassment 35 (1984) (finding that twenty-four percent of women in this study had experienced a completed rape).

[6] These percentages were calculated using two different reporting rates (forty percent as offered by RAINN and sixteen percent as offered by the Medical University of South Carolina). These reporting rates were then multiplied by the average arrested rate (50.8%), the average prosecution rate (80%), and the average conviction rate (58%), as provided by RAINN.  Kilpatrick, et al., supra note 3, at 2; Rape, Abuse & Incest National Network, Reporting Rates, RAINN, http://www.rainn.org/get-information/sta… (last visited Oct. 11, 2011) [hereinafter RAINN]; see also Staff of S. Comm. on the Judiciary, 103d Cong., The Response to Rape: Detours on the Road to Equal Justice 2 (Comm. Print 1993) [hereinafter Senate Response to Rape] (ninety-eight percent of rape victims never see their attacker caught, tried, and imprisoned).

[7] Senate Response to Rape, supra note 8, at 2.

[8] U.S. Dept. of Justice, Exec. Office for U. S. Attorneys, United States Attorneys’ Annual Statistical Report: Fiscal Year 2009, at Fiscal Year 2009 Statistical Highlights (2009), available at http://www.justice.gov/usao/reading_room….

[9] See Jennifer Temkin & Barbara Krahé, Sexual Assault and the Justice Gap: A Question of Attitude 1, 23 (2008) (discussing the “justice gap,” or the discrepancy between rape convictions and the incidence of rape).  Under the aegis of existing legal approaches, most sexual assaults remain unreported, unprosecuted, and unremedied—legally undistinguished from sex.  MacKinnon, supra note 6, at 742; see also Federal Bureau of Investigation, U.S. Dep’t of Justice, Crime in the United States, 2010 Uniform Crime Reports tbls. 1 & 29 (2011), available at http://www.fbi.gov/about-us/cjis/ucr/cri… (noting that in 2010, 84,767 forcible rapes were reported to authorities and only 20,088 arrests for forcible rape were made); Joan McGregor, Introduction to Philosophical Issues in Rape Law, 11 Law & Phil. 1, 2 (1992) (estimating the likelihood of rape complaints ending in conviction at two to five percent); Lee Madigan & Nancy C. Gamble, The Second Rape: Society’s Continued Betrayal of the Victim 7 (1991); see also RAINN, supra note 8 (reporting that fifteen out of sixteen, or approximately ninety-four percent, of rapists walk free); supra notes 7–8 and accompanying text.

[10] See Cassia Spohn & Julie Horney, Rape Law Reform: A Grassroots Revolution and Its Impact 77 (1992).

[11] See id. at 100–05 (“[L]egal changes did not produce the dramatic results that were anticipated by reformers.  The reforms had no impact in most of the jurisdictions.”).

[12] See Susan Estrich, Real Rape 15–20 (1987).

[13] See Spohn & Horney, supra note 12, at 20.

[14] Violence Against Women Act of 1994 (VAWA), Pub. L. No. 103-322, 108 Stat. 1902 (1994) (codified as amended in scattered sections of 16, 18, and 42 U.S.C.).

[15] Literature discussing rape and Thirteenth Amendment has found rape to be a “badge or incident” of slavery, but has not discussed rape as slavery.  While rape may certainly constitute a “badge or incident” of slavery, this Article focuses on rape as slavery.  See, e.g., Marcellene Elizabeth Hearn, Comment, A Thirteenth Amendment Defense of the Violence Against Women Act, 146 U. Pa. L. Rev. 1097, 1144–45 (1998) (discussing rape as a badge or incident of slavery); Lawrence G. Sager, A Letter to the Supreme Court Regarding the Missing Argument in Brzonkala v. Morrison, 75 N.Y.U. L. Rev. 150, 152–53 (2000).

[16] Akhil Reed Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359, 1360 (1992) (discussing potential litigation of child abuse under the Thirteenth Amendment).

[17] Id.; see also Neal Kumar Katyal, Note, Men Who Own Women: A Thirteenth Amendment Critique of Forced Prostitution, 103 Yale L.J. 791, 792 (1993) (“While the idea that forced prostitution is slavery may not be immediately apparent to some readers . . . .”).