After Rape Law: Will the Turn to Consent Normalize the Prosecution of Sexual Assault?

This essay explores the new rape exceptionalism. My thesis holds that rape exceptionalism is rooted in a divide between elite opinion, reflected in statutes, court decisions, and academic commentary, and popular opinion, as reflected in jury verdicts. Elite opinion values sexual autonomy and suspects, when it does not despise, sexual aggression. Popular opinion supposes that sexual autonomy may be forfeited by female promiscuity or flirtation, and views male sexual aggression as natural, if not indeed admirable...pressions of consent,8 is an academic exercise. If we really want to normalize rape law, we must bypass the jury openly. We can’t conceal the bypass under the fig leaf of plea bargaining, because defense lawyers know that juries are unlikely to convict. The Supreme Court permits such a bypass. “All” does not mean “all,” at least in the Sixth Amendment. There’s a catch; for convictions rendered without a right to jury trial, the maximum penalty is six months in jail...Those of us who regard the “normal” operation of the criminal justice system with suspicion would still object to the concentration of power in prosecutorial hands and the routine punishment of exercising constitutional rights. If that’s the best system of social control our society can achieve, however, it makes at least as much sense in rape cases as it does in drug cases. If and when we find ways to force elected representatives to make the hard choices about the substantive law, and to provide a fair, accurate, and affordable day in court for every defendant, we will have time to ask what the just punishment should be for sex without consent. Until then a special sex crimes court, sitting without a jury but with no jurisdiction to exceed the Supreme Court’s six-month limit, makes sense as a prosecutorial option to the standard felony process