Citizen No-Duty Rules: Rape Victims and Comparative Fault

Abstract

In this Article, Professor Bublick examines the generally accepted practice of allowing third parties like hotels and landlords, and occasionally rapists themselves, to take advantage of broad defenses of rape victim fault in civil law rape cases. As the law currently stands, whatever limits courts have placed on rape victim comparative fault defenses arise solely from the moral culpability of the defendants. Bublick argues that courts' exclusive focus on defendant culpability overlooks a second, equally compelling factor for determining whether courts should allow defenses of rape victim fault--citizen entitlements. She argues that regardless of defendants' culpability, citizens have independent interests in not being legally required to shape their conduct around the reality of pervasive rape and fear of rape in our society. Those interests stem from concerns for citizen freedom and equality, and are not outweighed by deterrence considerations. She then outlines three ways in which the law could be changed to incorporate both plaintiff-entitlement and defendant-culpability considerations. Specifically, the Article advocates judicial creation of citizen in the context of civil rape cases. The concept of no-duty rules was recently endorsed by the newly-enacted Restatement (Third) of Torts: Comparative Apportionment.