Rape and Retribution

Article here. Excerpt:

'Supreme Court Justice John Marshall Harlan II once observed that it is the task of the law to form and project as well as mirror and reflect—that is, to shape behavior while also expressing society’s understanding of proper conduct. Over the last 40 years, American society has introduced dramatic changes in rape law, changes aimed at making criminal prosecutions and convictions easier. The reforms have succeeded in altering society’s understanding of sexually motivated assault, but the revised law has not adequately mirrored and reflected society’s views on the appropriate sanctions. The result has been a failure to increase in any significant way the number of prosecutions and convictions for rape, particularly alleged rape by an acquaintance of the accused. To summarize: reformers have captured the law and reshaped it to conform to their notions of right and wrong but failed to take account of the sentiments of the general public, which has sent the message that the reforms have gone too far.

This is not, however, the message of Jon Krakauer’s Missoula, a highly readable if one-sided account of three sexual assaults in a university town. Krakauer clearly believes in the reform of rape law; his sympathies lie completely with the young female complainants and not at all with the young males who had sex with them. He wants these men expelled from college and imprisoned and is disturbed that only one of the three suffered that fate. What he does not adequately consider is why so few cases, including two of the three he chronicles, close without any criminal sanction. In fact, very few acquaintance rape cases get prosecuted. The explanation, I would suggest, is that the American public does not share Krakauer’s view of the issues. Society does not consider date rape to be as morally reprehensible as classic forcible rape, and the public, which speaks through juries, will not support lengthy prison terms with all of their attendant consequences for young men who, despite otherwise spotless lives, engaged in conduct that, as the law now stands, merits some of the harshest sanctions available.'