Rape laws are undergoing a second wave of significant reforms in response to ongoing
feminist critiques that the crime's treatment is unfair to victims and too forgiving
of perpetrators. The first wave of reforms attempted to ameliorate women's treatment
as property and the tendency to blame the victim based on gendered moral judgments
of sexual conduct.
Before the feminist critique of rape law, rape was a crime of violence committed by a man against a woman, not his wife. Defense attorneys often put the victim on trial, prying into her sexual past to create the impression that she consented to sex with the defendant or that her lack of morality made her unworthy of the protection of the law. State legislatures and courts have begun rethinking the definition of rape, including making rape gender neutral. They have created sexual assault offenses that reflect the fact that unwanted sex violates a person's sexual autonomy, even absent threats of violence. Rape shield laws have attempted to limit humiliating inquiries into women's sexual histories, while those laws must recognize defendant's constitutional rights to present relevant evidence. These reforms have raised concerns over the rights of the accused. Is it fair not to allow criminal defendants to target the credibility of the accuser? Is it fair for law to impose aspirational values about how persons should communicate about sex rather than reflect how they actually communicate in reality across culture, social class and age? Should the criminal law make a person guilty of a crime if that person engages in sexual conduct without affirmative consent?
This symposium examines important developments to the definition of sex offenses and to rape shield laws. It does so, in part, by focusing on proposals under consideration by the American Law Institute to reform both areas of the law.
Similar issues have arisen on college campuses, where, for many years, women's claims of sexual assault went largely ignored. Various reports suggest that such assaults are rampant. The Obama Administration and some state legislatures have compelled greater protection for victims of assault. For example, the California legislature has enacted a yes-means-yes law, making a student subject to sanctions if that student engages in a sexual act without affirmative consent. Colleges struggle with balancing implementation of such rules with the need to provide the accused with due process. This symposium examines important issues that are being negotiated on college campuses.
November 6, 2015
Capitol Public Radio Nov. 5, 2015 at 9 a.m.
Professors Raquel Aldana and Mike Vitiello will be on Capitol Public Radio's Insight program on Thursday, Nov. 5 at 9 a.m. to discuss the Symposium panel topics, including yes-means-yes on college campuses and the proposed changes to sex offenses in a draft of a report by the American Law Institute. Listen.
Introduction 9 a.m. to 9:10 a.m.
Dean Francis J. Mootz, McGeorge School of Law
Redefining Sex Offenses in the Criminal Law 9:10 a.m. to 11 a.m.
Moderator: Professor Raquel Aldana, McGeorge School of Law
Professor Stephen Schulhofer, New York University School of Law
Professor Aya Gruber, University of Colorado Law School
Distinguished Professor Michael Vitiello, McGeorge School of Law
Rethinking Rape Shield Laws 11:10 a.m. to 12:45 p.m.
Moderator: Distinguished Professor Linda Carter, McGeorge School of Law
Professor Sara Gordon, William S. Boyd School of Law
Professor Debra Tuerkheimer, Northwestern Law
Professor Edward Imwinkelried, UC Davis School of Law
Lunch 1 p.m. to 1:45 p.m.
"Yes Means Yes": What Consent Should Mean on College Campuses 2 p.m. to 3:40 p.m.
Moderator: Vice President Patrick Day, University of the Pacific
Professor Terry Humphreys, Trent University
Dr. Kristen Jozkowski, University of Arkansas
Dean Ruth Jones, Occidental College