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Judging sex.
1DePaul University College of Law.
Cornell Law Review
|October 18, 2012
Summary
Modern rape law continues to rely on outdated "unchaste character inferences" about women, despite rape shield laws. Courts still make judgments about female sexuality, hindering rational consent deliberations and impeding justice.
Area of Science:
- Socio-legal studies
- Gender studies
- Criminology
Background:
- Rape shield laws, intended to protect complainants, are undermined by persistent judicial reliance on "unchaste character inferences."
- Historical and evolving societal norms regarding female sexuality continue to influence legal interpretations of sexual conduct and consent.
- The jurisprudence of sexual patterns allows for subjective and normative judgments, rather than objective assessments of consent.
Purpose of the Study:
- To critically examine how legal interpretations of "sexual patterns" construct and constrain female sexuality within contemporary rape law.
- To analyze the enduring presence of "unchaste character inferences" despite explicit prohibitions by rape shield legislation.
- To propose an improved evidentiary approach that centers the female sexual subject and the contingency of consent.
Main Methods:
- Critical analysis of legal doctrines and judicial decisions concerning sexual history and character in rape cases.
- Examination of the theoretical underpinnings and practical application of rape shield laws.
- Review of scholarly literature on gender, sexuality, and legal jurisprudence.
Main Results:
- Courts continue to make normative judgments about women's sexual behavior, substituting "sexual patterns" for rational consent analysis.
- Retrograde notions of sexual deviancy persist, undermining the intended purpose and effectiveness of rape shield laws.
- The law's focus remains on the accused's perception rather than the complainant's experience and the nuanced nature of consent.
Conclusions:
- Rape shield law, even after decades, remains theoretically and practically flawed in its application to female sexuality and consent.
- The proposed evidentiary approach offers a path toward more just judicial decision-making by reorienting the law towards the female sexual subject.
- A shift in legal reasoning is necessary to ensure that consent, not perceived sexual history, is the central issue in rape cases.
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