Rape Law Gatekeeping

Police across the United States regularly act as hostile gatekeepers who prevent rape complaints from advancing through the criminal justice system by fervently policing the culturally disputed concept of “rape.” Victims are regularly disbelieved, rape kits are discarded without investigation, and, as a result, rapists remain free. The substantial empirical evidence and stories from victims across the United States demonstrate that any success in decreasing sexual violence hinges on removing the numerous police-imposed obstacles inhibiting investigation and adjudication in rape cases, beginning with substantial reform of police practices. An examination of modern cases and the historical record indicates that the widespread conventional wisdom among academics and activists that reforming evidentiary rules and consent standards would trickle down to police decisions has proven unwarranted. As long as rape victims do not have consistent access to the criminal justice system due to policing failures, tinkering with rules and statutes is likely to yield little progress. Consequently, reform efforts must prioritize fixing the most significant bottleneck in rape cases: police. Several such legal and policy changes are incorporated into a model statute designed to ameliorate the widespread, ongoing problems associated with police gatekeeping

To Catch a Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials

Despite decades of efforts to reform American rape law, prosecution and conviction rates remain low compared to similar crimes. While activists led legislatures to adopt important statutory changes for rape and sexual assault, only modest effects in the levels of sexual violence have been observed. Nonetheless, reform-minded scholars continue to focus on statutory and rule tinkering as a means to quell sexual violence. This article argues against the commonly-held belief that the crucial factors in determining the outcome of rape trials are substantive and procedural in nature. Rather, the issues of performance, representation, and language often pre-determine the outcomes of rape trials. When a complainant testifies on the stand, she is forced into one of several roles by jury attitudes and defense narratives. These roles fit defense scripts and create a heavy burden of performance on the accusers. This burden of performance operates to put a complainant\u27s gender identity on trial and results in the incorporation of dangerous societal myths into the fact-finding process. Using the work of Jean Baudrillard, this article focuses on the performative problematics unique to sexual assault trials. The way by which these processes work is analogous to that of disaster pornography. Scholars have observed that compassion fatigue has resulted because of overexposure to disaster imagery. Similarly, as society has become saturated with rape narratives, it has become desensitized and dissociated from complainants\u27 stories of rape. Because of this phenomenon, there needs to be a fundamental rethinking concerning rape law reform. Otherwise, success in the fight against rape will be as rare as it has been for the last thirty years

A Typology of Judging Styles

This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing, Consensus Building, Stalwart, Regulating, Steadfast, Collegial, Incrementalist, Minimalist, and Error Correcting. These judicial style types offer a fuller account of judicial behavior than any of the prior models utilized by scholars

Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders

In this Article, I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed “internal exile.” Internal exile is an uncommon practice in modern developed societies. Consequently, the increasing emergence of exclusion zones is a development that could fundamentally alter basic principles of the American criminal justice system. This Article is structured as follows: Part I explores the history and law of banishment as a form of punishment in the West generally and then specifically in the United States. Part II discusses the development of sex offender exclusion zone laws and judicial responses to those laws. Part III identifies the connections between the historical practices of banishment discussed in Part I and the new exclusion zone laws reviewed in Part II. Part IV shows how these connections ultimately raise substantial legal, policy, and ethical problems for residency restrictions on sex offenders. I conclude by looking to the future of sex offender laws in America

A Typology of Judging Styles

This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing, Consensus Building, Stalwart, Regulating, Steadfast, Collegial, Incrementalist, Minimalist, and Error Correcting. These judicial style types offer a fuller account of judicial behavior than any of the prior models utilized by scholars