The title of this post is the headline of this recent interesting commentary authored by Kari Hong over at The Crime Report. Here are excerpts:
In what is being called the “Post-Weinstein era,” victims of sexual assault and harassment are finally being believed. This no doubt is overdue, but in the context of rape, believing the victim will not be enough. Three reforms are essential to how we convict and punish rapists.
First, the way states currently define the crime of rape does not target the conduct of unwanted sex. In the United States, rape was initially defined by unwanted sex accompanied by an element of force. The proof of force was and continues to be a high bar to meet, usually requiring threats, physical violence, actual injury, or weapons....
The first needed reform to the definition of the crime of rape, then, is to abandon the definitions of rape used by 42 states. Rape should not be limited to unwanted sex when there is also force or only arising in specific contexts. Rather, all states should simply define rape as only eight currently do: sex without the consent of the other person. Full stop.
Second, unlike homicide and theft offenses, rape law has not benefited from having liability arise from more sophisticated mental states that define the crime....
The second essential reform, then, is establishing a new crime of “rape by malice,” a crime that criminalizes both those who knew — or deliberately did not care to know — if their advances were consented to. Unwanted sex arises from multiple motivations. A mens rea for rape should be flexible and responsive enough to criminalize as much unwanted sex as possible without criminalizing lawful or wanted sex. Other crimes such as homicide have expansive definitions to capture all killings made by the predators, the fools, and the careless. A new crime of rape by malice would do the same.
Third, these proposed reforms to the redefinition of rape would lead to more convictions. But convicting more rapists under our current criminal justice system should not be welcomed. On paper, 19 states have respective maximum terms of 99 years, 100 years, and life sentences. And 12 states begin at 10 years.
Although only six states and the federal government even compile data on the number and lengths of sentences, where data is available, the range in actual sentences for rape was from eight to 30 years. In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows. These numbers should be alarming. Whereas 40 percent of people convicted of all felonies will be punished with prison terms, about 90 percent of all rapists will receive a prison sentence, and a very lengthy one at that.
In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows. In 35 comparable countries, the vast majority impose prison terms that do not exceed five years. This short sentence does not at all communicate that the crime was not heinous, the offender not depraved, or the victim does not merit justice....
If the goal is to reintegrate into society convicted rapists who will not reoffend, the third essential reform is to impose shorter sentences for rapists. It is shorter sentences and actual treatment that succeed over calls to simply lock them up.
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