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Article
Why Rape Should Not (Always) Be a Crime
Minnesota Law Review (2015)
  • Katharine K. Baker
Abstract
The Article proceeds as follows. Part I explores the primary legal frameworks for understanding rape law over time. It traces the origins of rape as a sometimes civil, sometimes criminal, wrong—through the patriarchal view of rape as a property crime, to the feminist (and liberal) remake of rape into an individual criminal injury to autonomy. It then briefly discusses recent rejections of the liberal/feminist position. Parts II–IV explore the three major impediments to effective norm change in more detail. Part V, after explaining why the recent proposed revisions to the Model Penal Code are not likely to overcome the problems previously discussed, demonstrates why DOE’s initiative to use Title IX to curb sexual assaults on campuses may be more effective. If the new campus policies are effective in reducing the amount of nonconsensual sex, the norms of male entitlement that rape reformers originally tried to dislodge may be eroded sufficiently for the criminal law to effectively combat nonconsensual sex. The key to initially dislodging the norm, however, will be distancing the university procedures from the criminal law.

Why Rape Should Not (Always) Be a Crime, 100 Minnesota Law Review 221 (2015).
Publication Date
2015
Citation Information
Why Rape Should Not (Always) Be a Crime, 100 Minnesota Law Review 221 (2015).