The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power

This Article argues that while rape law reform has accomplished significant changes in the past decades, the reform has since stalled. The contemporary focus on the element of consent might account for this stagnation. This move has both failed to effect instrumental change in the courts as well as in social norms, and is conceptually flawed and normatively misguided. The practical result of these deficiencies is that rape, as defined by our criminal justice system, bears little resemblance to the various forms of sexual abuses that are inflicted on victims. While rape law typically criminalizes only the physically violent sexual attack, it refuses to criminalize an array of abuses, effectively disregarding prevalent forms of sexual violence and misconceiving the crime of rape. Statutory definitions of rape are inept and require an overhaul to better capture the harm and wrongdoing of sexual abuses that many victims still experience

The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power

This Article argues that while rape law reform has accomplished significant changes in the past decades, the reform has since stalled. The contemporary focus on the element of consent might account for this stagnation. This move has both failed to effect instrumental change in the courts as well as in social norms, and is conceptually flawed and normatively misguided. The practical result of these deficiencies is that rape, as defined by our criminal justice system, bears little resemblance to the various forms of sexual abuses that are inflicted on victims. While rape law typically criminalizes only the physically violent sexual attack, it refuses to criminalize an array of abuses, effectively disregarding prevalent forms of sexual violence and misconceiving the crime of rape. Statutory definitions of rape are inept and require an overhaul to better capture the harm and wrongdoing of sexual abuses that many victims still experience

Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization

This Article proposes a constitutional constraint to limit criminalization of victimless crimes and, particularly, to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs.” To accomplish this goal, the Article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law. The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity, on the other. However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where they directly clash. This Article proposes guidelines for balancing these contrasting interests and then applies them to drug crimes, illustrating that adopting such guidelines would result in constraining the scope of substantive criminal law

Overcriminalizing Speech

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed. This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast with conventional wisdom’s assumption that the right to free speech is broadly protected under existing jurisprudence, much speech is currently overcriminalized under the endangerment justification. Free speech doctrines and criminal law are in tension with one another. While under its First Amendment jurisprudence the Court contracts government’s power to ban speech, criminal law constantly expands the scope of speech crimes. The Article contends that existing doctrines attempting to explain this inconsistency fail to provide a principled explanation for the absence of First Amendment scrutiny from various types of speech crimes. To ameliorate this problem, this Article proposes a unified analytical framework for assessing when speech justifies criminalization and when it warrants constitutional protection. The proposal suggests that all speech crimes should be subject to constitutional scrutiny under free speech doctrines, as well as to additional constraints stemming from criminal law theory. This Article provides several factors to guide the judicial inquiry into determining the scope of criminal bans on speech

Compassionate Homicide

Ample psychological studies demonstrate that emotions provide reasons for action and are powerful drivers of a host of behaviors, including criminal acts. Studies further establish that experiencing intense emotions might impair actors’ judgment and decision-making, sometimes culminating in committing homicide. Existing criminal law doctrines only partially correspond to these findings. They recognize mostly anger and fear as underlying the excuses of provocation, imperfect self-defense, and duress by mitigating murder charges to manslaughter or otherwise excusing offenders. Currently, however, no doctrine recognizes compassion as a basis for mitigation. Under existing laws, an actor who intentionally kills a terminally ill or severely disabled close family member, wholly out of compassion for the victim, commits the crime of murder. The actor’s motive to end the victim’s suffering is irrelevant for determining the scope of criminal responsibility. In recent years, legal scholars have developed a new field of study focusing on the interplay between law and the emotions, including among others, in the realm of criminal law. This Article contributes to existing literature in this area by suggesting that compassion is yet another emotion that may trigger certain actions. Advocating the adoption of a statutory affirmative defense that is grounded in compassion, this Article argues that recognizing this excuse is consistent with the rationales and reasoning underlying criminal law’s recognition of existing emotion-based excuses. This Article develops the theoretical and doctrinal bases for endorsing a compassion-based partial excuse by advancing three arguments. First, it contends that experiencing compassion towards a close family member might affect an actor’s judgment and decision-making, motivating them to kill. Second, it argues that from a policy-based perspective, recognizing a compassion-based excuse is normatively warranted because while the killing is neither justified nor fully excused, it is an understandable reaction given the circumstances the actor was facing. Third, this Article outlines some necessary constraints on the scope and limits of the partial excuse to ensure that it is applicable only in appropriate cases, where actors normatively deserve mitigation

Underprosecution Too

This Article makes two main contributions to existing literature. First, it asserts that in deciding whether to pursue sexual assault charges, prosecutors should not rely on the convictability standard. Assessing evidentiary sufficiency in sexual assault cases through the lens of a hypothetical jury is misguided because it incorporates a myriad of jurors’ extralegal considerations of victims’ behaviors, consisting of racialized, gendered, class, status and other prejudices and biases against victims.35 Declining to prosecute sexual assault based on the convictability standard not only perpetuates unwarranted misconceptions about certain victims, but also reinforces their marginalization by exacerbating the legal system’s unequal and discriminatory treatment. Instead, this Article proposes the reasonable prosecutor’s evidentiary sufficiency standard under which prosecutors should take into account only legal factors directly relevant to the evidentiary strength of the sexual assault case at issue.36 This proposed standard asks only whether a reasonable jury could convict the defendant based on the admissible evidence, rather than predicting whether jurors would likely do so

Loss of Self-Control, Dual-Process Theories, and Provocation

Contemporary understanding of the provocation defense views the “loss of self-control” theory as the cornerstone of this partial excuse. In considering whether to reduce murder charges to manslaughter, juries and judges rely on this theory to determine if the defendant lost self-control after experiencing intense emotional arousal and if a reasonable person would have also likely lost self-control in similar circumstances. This Article questions this conventional wisdom by examining the various flaws embedded in provocation’s loss of self-control theory. It argues that the theory is both over- and underinclusive. It is overinclusive because it provides a basis for mitigation in cases where leniency is normatively unwarranted given policy considerations. It is also underinclusive because it only accommodates the typical reactions of angry defendants who manifest sudden impulsivity. It fails to help defendants who visibly appear calm and composed because their emotional arousal was triggered by a host of other emotions beyond anger—mostly fear, desperation, and hopelessness. This Article turns to psychological research on dual-process models to craft an alternative theory underlying the provocation defense. Drawing on these models’ two modes of thinking, it contends that provoked killers’ reactions may be understood as the result of emotions that shape actors’ judgment and decision-making processes. The Article uses the term “impaired judgment” to refer to these situations. Acknowledging both the promises and the pitfalls of this alternate theory, the Article advances two arguments. First, it posits that the concept of impaired judgment is better suited than loss of self-control to support provocation’s doctrinal framework. Second, it points to intrinsic limitations embedded in reliance on the loss of self-control theory, which is unable to account for provocation’s normative dimension. The theory must therefore be supplemented with a value-based component that would assist juries in determining the circumstances that make provocation adequate from a normative and evaluative perspective

The Conundrum of Voluntary Intoxication and Sex

Research shows that a significant number of sexual assaults occur after victims have consumed an excessive amount of intoxicants, rendering them substantially impaired and incapable of opposing nonconsensual sexual acts. Existing sexual assault statutes mostly criminalize sexual acts with involuntarily intoxicated people, namely when the defendant administered the intoxicants to the victim. Most of these statutes, however, do not directly prohibit sexual intercourse with voluntarily intoxicated victims whose intoxication was self-inflicted. While general prohibitions against sexual intercourse with physically and mentally incapacitated individuals may be used to prosecute sexual assaults of intoxicated victims, they offer only an incomplete solution to the problem and are ill suited to capture the distinct features of these cases. This article aims to draw the legal boundary between sex crimes and consensual, albeit drunken and regrettable, sexual encounters. It makes several contributions to the contentious societal and legal debate over the circumstances that may justify holding a perpetrator criminally responsible for sexually assaulting a voluntarily intoxicated victim. First, it argues that the criminal law’s treatment of sexual assault of intoxicated victims should not depend on how the victim’s impairment came about, and should equally protect victims of both voluntary and involuntary intoxication. Second, the article demonstrates that since the existing incapacity to express consent standard is vague and ambiguous, its application may result in inequitable resolutions for both victims and defendants. Third, the article proposes a statute that directly prohibits sexual acts with victims who were unable to refuse nonconsensual sexual acts due to their intoxication, whether voluntary or involuntary. The statute replaces the victim-oriented capacity to consent standard with a perpetrator-oriented inquiry that aims at identifying sexual predators by focusing on the circumstances that demonstrate a defendant’s culpable conduct and morally blameworthy state of mind. By targeting only cases that warrant criminal sanction, the proposed framework strikes a balance between defendants’ right not to be subject to criminal sanctions for conduct that does not demonstrate culpability and victims’ right to remain free from sexual violation by imposition of nonconsensual sex