This piece first appeared in Law & Inequality: A Journal of Theory and Practice.

Introduction

In this Article, I undertake two distinct tasks. First, I want to discuss what the laws against sexual assault ideally should look like. But second, I also want to discuss rape law from the perspective of someone who has spent the past four years in the messy and frustrating work of legislative compromise, trying to design law reform that can be both progressive and enactable. There is an obvious contradiction in that regard. The goal is to pass reforms that move society and our criminal justice system in a progressive direction, to the place where society ought to be. But that means, by definition, getting broad agreement on principles about which people do not agree—at least not yet.

Before I turn to that second part of the story, this Article addresses three points. First, it sketches the traditional twentieth century law of rape (still in force in some jurisdictions!) and outlines the reforms that were emphasized in the 1960s and 1970s, before Professor MacKinnon’s impact was felt. Second, it describes the distinct perspective that Professor MacKinnon brought to these debates and how it helped  shape the reforms that followed. Third, this Article offers an outline of where we are now, the progress we’ve made, and some of the problems that still need to be addressed.

This Article then turns to the second large part of the rape reform story and discusses the work of getting progressive reform enacted in the face of strong and determined resistance. Part of that resistance is outright misogyny—unconscious or overt disrespect for women. Although it is important to acknowledge that fact, this Article will focus instead on resistance that is not attributable to misogyny. It can be hard to see that resistance sometimes reflects legitimate concerns which those of us committed to reform must understand and address.

Read the full article, including footnotes and references.

Stepher J. Schulhofer, Reforming the Law of Rape, first published in Law & Inequality: A Journal of Theory and Practice, Volume 35, Issue 2 (35 Law & Ineq. 335 (2017).