Sexual Assault Law Research Articles

Voluntary Victim Intoxication in Sexual Assault State Statutes: A Content Analysis.

Recent events, such as the #Metoo movement, have renewed sexual assault victims calls for change. Legal change has, unfortunately, been slow for sexual assault survivors who were voluntarily intoxicated during their victimization. To understand the legal remedies available for voluntarily intoxicated victims', this study explored state sexual assault laws across the United States of America. The results indicate that there exist significant shortcomings in the interpretation of and evidentiary requirements in voluntary victim intoxication cases. Policy implications from these results are discussed in the hopes of providing voluntarily intoxicated sexual assault victims greater access to justice.

“The Damage is Permanent”: Law, Women’s “Honor,” and the Psychiatrization of Sexual Violence in Post-reform Turkey

Abstract Existing literature is deeply divided on the effectiveness of rape law reforms. Intervening in this literature, this article examines the workings and consequences of ostensibly gender-neutral and victim-friendly reforms in Turkey. Through court observations, document analysis, and interviews with legal actors, I show how complex—and gendered—notions of victimization, harm, and trauma are embedded in sexual assault laws. I argue that the law defines sexual violence as inherently and invariably traumatizing, causing symptoms that can be identified and evidenced through the examination of the mental states of survivors, thus psychiatrizing it. This psychiatrization rests on the idea that rape primarily, and unequivocally, damages women’s “honor.” Consequently, the category of “legitimate victimhood” does not disappear; rather, it is reinvented by medico-legal logics that invoke gendered norms of honor and morality, which infuse and shape deliberations of justice in cases of sexual violence.

Forensic evidence in sexual assault laws: a content analysis of state statutes in the United States of America

ABSTRACT The collection of forensic evidence is perceived to be a panacea in sexual assault investigations and criminal prosecutions. However, research has shown an alarmingly different reality, whereby forensic evidence is rarely available, collected, tested, or available during criminal investigations and court procedures. Regardless, many states have begun implementing new policies to improve the collection and preservation of forensic evidence. This study explores the state of forensic evidence policies and legislation throughout the United States of America as they relate to sexual assaults through a content analysis of the nation’s state statutes. Following the 2016 legislative session statutes were found to be organized into two themes: 1) survivor-related statutes and 2) offender-related statutes. Though innovative forensic evidence policies were observed, much of this legislation appeared to be inconsistent with the reality of sexual assault and is best described as vague and inadequate. In view of these observations, this paper discusses policy implications and areas of future research.

The Challenges of Designing Sexual Assault Law

Abstract The paper compares and evaluates newer laws on sexual assault in Germany (2016), Sweden (2018) and Spain (2022). It focuses on the main challenge for law reform in this field: the complexity of consent-based rules. Before drafting new offence descriptions, the variety of models of consent should be analysed and their advantages and disadvantages considered. Lawmakers should also pay attention to situations that either make consent impossible or endanger the validity of factual consent.

Gender-Based Violence and Carceral Feminism in Australia: Towards Decarceral Approaches

This article explores the limitations of criminal legal responses to gender-based violence in Australia, specifically sexual assault law reforms and the criminalisation of coercive control. We demonstrate that carceral horizons deployed to address gender-based violence cause further harm to survivors and overshadow diverse perceptions and practices of justice. We suggest that such an approach is inappropriate and dangerous in the Australian context, given the historical and enduring harms of colonisation and the extent to which the actors within and the structure of the criminal legal system perpetrate violence towards Indigenous survivors of gender-based violence. Drawing on insights from research on survivors’ justice needs, survivors’ experiences in the criminal legal system, and abolitionist, transformative, and Indigenous scholarship, we discuss the potential for alternative ways of conceptualising justice responses in the Australian context that move beyond and avoid further perpetuating the harms arising from criminal legal responses to gender-based violence.

From Paradox to Progress: Understanding Gender Discrepancies in Indian Sexual Assault Laws through International Perspective

From Paradox to Progress: Understanding Gender Discrepancies in Indian Sexual Assault Laws through International Perspective

<span>Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law</span>

<span>Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law</span>

Victim Intoxication and Capacity to Consent in Sexual Assault Statutes across the United States.

Alcohol use is common in cases of sexual assault. These cases raise significant questions about a victim's capacity to consent to sexual intercourse. In many United States jurisdictions, intoxicated victims may be considered mentally incapacitated only if they have been administered alcohol or other substances involuntarily. A recent Minnesota Supreme Court case illustrated why reform is necessary in this area of criminal sexual conduct law. We present this case and the results of a review of felony criminal sexual conduct laws in the fifty states of the United States and the District of Columbia. We find that nearly half of the jurisdictions surveyed require that a victim must be involuntarily intoxicated to be considered incapacitated or impaired. We draw on Minnesota's experience with legislative reform of its sexual assault laws as well as judicially mediated reform mechanisms to present a roadmap for overcoming this voluntary intoxication caveat. Finally, we discuss the implications of these laws for victims of sexual assault and for the practice of forensic psychiatry in cases of criminal sexual conduct involving victim intoxication.

The Power of Proof In Victims of Sexsual Abuse

Introduction: Enforcement and legal protection for sexual assault cases has focused on protecting the victims of sexual assault law which consists of physical or psychological violence, retaliation, humiliation, and mistreatment of people who support victims of violence against women in particular. Where the focus of this tuilsan mebahas about the legal protection of victims of sexual violence in Indonesian criminal law and how the penultimate case of sexual violence.Purposes of the Research: The purpose of this study is to explain the concept Absentia trial by applying the return of State.Methods of the Research: The research method used is normative legal research with a statute legal approach and a conceptual approach.Results of the Research: Sexual violence itself becomes an urgency, given the rise of cases of sexual violence in Indonesia. By creating laws that protect victims of sexual violence, the resolution of sexual violence cases and the protection of victims of sexual violence cases can be executed well. So that the law in Indonesia can be implemented in accordance with its purpose, which is to protect all Indonesian people from crime cases.

The effect of changing the military's sexual assault laws on law enforcement investigative findings in the U.S. Army.

In 2007, Congress changed the military's sexual assault laws as part of an effort to improve sexual assault case processing. This study looked at the U.S. Army law enforcement investigative finding for every sexual assault reported to the Army from 2004 through June 2012, along with every nonsexual assault. Our objective was to measure whether the legal intervention affected the investigative findings made by Army law enforcement officers in sexual assault cases (penetrative, nonpenetrative, and combined) as compared to assault cases (aggravated, simple, and combined). We hypothesized that we would not find evidence that the legal intervention affected the rate of sexual assault cases labeled as "founded" by Army law enforcement, such that for the best-fitting time-series models, any difference in the residuals of the means before and after the intervention would not be statistically significant. We received data from the U.S. Army on all sexual assaults and nonsexual assaults from 2004 through June 2012. The data comprised 47,058 observations. We used time-series analysis with autoregressive integrated moving average modeling. The variable tracked over time was the ratio of the proportion of founded sexual assault cases to the proportion of founded nonsexual assault cases. We then conducted t tests of the means of the residuals before and after the legal intervention. The difference in the means of the residuals before and after the intervention was not statistically significant for combined sexual assaults versus combined assaults, penetrative sexual assaults versus aggravated assaults, or nonpenetrative sexual assaults versus simple assaults. This reform to sexual assault laws does not appear to have affected sexual assault case processing by U.S. Army law enforcement. (PsycInfo Database Record (c) 2022 APA, all rights reserved).

Supplemental Material for The Effect of Changing the Military’s Sexual Assault Laws on Law Enforcement Investigative Findings in the U.S. Army

Supplemental Material for The Effect of Changing the Military’s Sexual Assault Laws on Law Enforcement Investigative Findings in the U.S. Army

“I shall conquer and prevail” – art and stories of resilience and resistance of the women, ART and criminalization of HIV (WATCH) study

In Canada, sexual assault laws have been used to criminalize people who do not disclose their HIV status to partners prior to sex that presents a “realistic possibility of transmission.” Women, ART, and the Criminalization of HIV (WATCH) is a community arts-based study focusing on the impacts of criminalization of HIV non-disclosure, including access of familial, community, and social service support. Seven Body Mapping workshops were held with 48 women from Ontario, Manitoba, Saskatchewan, and British Columbia. Participants were guided through visual art exercises to create a Body Map, and connected images to personal stories through Sharing Circles. In feminist participatory analysis, connections between personal well-being, resilience, and resistance surfaced as dominant themes. Culturally relevant approaches to care that recognize and build on narratives of resilience and resistance in the lives of women living with HIV is of particular significance to social work and allied social service professionals.

Sexual assault law and community education: A case study of New South Wales, Australia

AbstractThe offence of sexual assault has been reformed significantly since the 1980s. These reforms have been designed to create a fairer criminal justice system and contribute to primary prevention through community education. Yet, how exactly does this education happen? This article draws on a qualitative interview study with government and non‐government stakeholders in the Australian State of NSW to consider how members of the public are equipped with the information they need to understand the laws that govern their sexual lives. Despite multiple educational pathways on key legal concepts such as consent, the study found a knowledge gap between the legal meaning of sexual assault and effective public access to that meaning. The article concludes with recommendations for addressing the barriers that undergird this gap. It argues that law’s educative promise depends on the state’s preparedness to create policy that fosters the public’s appreciation of the sexual standards embedded in legal rules.

The Complex Legacy of R. v. Cuerrier: HIV Nondisclosure Prosecutions and Their Impact on Sexual Assault Law

This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points. First, the article examines the impact of the decision on HIV nondisclosure prosecutions. Second, it examines the damage done by Cuerrier to sexual assault law outside of the HIV context. The article argues that Cuerrier has both overcriminalized people living with HIV and distorted the law of sexual assault. Through Cuerrier, and subsequent cases, the Supreme Court of Canada has unduly limited the concept of consent and its voluntariness requirement, and distorted the concept of fraud such that deceptions around sex are only criminalized where they cause a significant risk of serious bodily harm. It is argued that legislatively removing HIV nondisclosure prosecutions from the scope of sexual assault offences, and making corresponding changes to the definition of consent, is the only way to remedy the harm done to people with HIV and to sexual assault law more generally.

How #MeToo may ignite reform in Australian sexual assault laws: A legal critique

How #MeToo may ignite reform in Australian sexual assault laws: A legal critique

Ought the Rape/Sexual Assault Law in India be Gender Neutral?

This dissertation engages in critical analysis of jurisprudence in India with respect to sexual violence. It critically analyses the issues, myths, presumptions related to male rape. It summarises the need for a gender neutral sexual assault law in India.

Due Process Overbreadth? The Void for Vagueness Doctrine, Fundamental Rights, and the Brewing Storm over Undefined Consent in Sexual Assault Statutes.

This Article, contributed to a symposium on Commerce, Institutions, and Consent held at the University of Oklahoma Law School on October 19th, 2019, explains how three distinct legal developments are on a collision course. The criminal law of sexual assault has evolved to focus primarily on negative sexual autonomy, but there is no normative consensus on just what “consent” means, nor does typical statutory language suggest considered legislative choice from among the possible meanings. Meanwhile, time has reinforced the Supreme Court’s elevation of positive sexual autonomy above ordinary constitutional interests in Lawrence v. Texas. Finally, the Court’s decisions in Johnson and Dimaya have resolved decades of uncertainty in favor of a robust version of the void-for-vagueness doctrine. Conclusory statutory condemnations of sex without consent therefore have become plausible targets of facial constitutional challenges. The Article discusses the looming collision and offers ways to mediate the emerging conflicts among the values of negative autonomy, positive autonomy, and legality.

Getting Consent ‘Right’: Sexual Assault Law Reform in New South Wales

For the purposes of rape/sexual assault, the preferred approach for pursuing modernisation in Australia has been to legislate a positive definition of consent as ‘free and voluntary agreement’. The absence of consent in this form has become the primary touchstone for the crime. And yet, despite multiple waves of progressive legislative reform, too few victims of sexual violence find justice in the criminal courts. This article questions whether prevailing statutory models of consent definition may be more problem than solution. Drawing on the work of Pateman and Gatens in particular, I argue that while the repetition of the words ‘free and voluntary agreement’ make it a familiar and reassuring formula, its meaning is neither self-evident nor self-executing. It is possible that the definition opens a ‘gap’ between what is intended by the phrase and how it is filled in practice by the ‘common knowledges’ (Mariana Valverde, Law's Dream of a Common Knowledge (Princeton University Press, 2003)) of rape myths. Myth as ‘misunderstanding’ may be capable of legislative correction, but legislative correction of myth, understood as an excess of signification (Roland Barthes, Mythologies trans A Lavers (Jonathan Cape, 1972)), is elusive. The article also suggests that the practice of legislative correction may be flawed to the extent that it relies on naming and marking the limit of what consent is not – via categories of (exceptional) circumstance and vulnerability.

On Sexual Consent in Canada

Consent is an extremely important principle within the law—so important it is defined twice within the Criminal Code: first in s. 265, the assault provision which also governs the law of sexual assault, and again in s. 273.1, where the Code provides additional definition specifically within the context of sexual assault. The limits of consent have been further defined through case law, especially in R v Ewanchuk.
 Canadians would be surprised to discover that Ewanchuk determined it is illegal to initiate sexual activity via sexual touching, or to kiss a sleeping spouse. To keep people safe from inappropriate sexual touching, we have outlawed activities most intimate partners would not object to: this creates a dilemma about when protection exceeds its necessity and becomes inappropriate control of sexual autonomy. It is this dilemma this article addresses.
 Ultimately, this article argues that Canada’s sexual assault laws must change for two reasons: first, by criminalizing behaviour that is not morally wrong, the criminal law is overbroad and doesn’t fulfil its expressive function, and; while enacted with the noble goal of protecting the sexual autonomy of women, our consent laws serve to restrict the sexual autonomy of women in ways that are objectionable.

Sexual assault in the locker room: sexually violent hazing in Canadian sport

ABSTRACT Hazing rituals in sport commonly involve coercive sexual acts. However, sexually violent hazing is rarely taken seriously by law enforcement and the criminal justice system in Canada. This paper examines sexually violent hazing in Canadian sport within the broader context of Canadian criminal sexual assault law. Using unobtrusive methods, the paper examines 12 cases of sexually violent hazing in Canadian sport to reveal what it can entail, who it commonly involves, and how sport leagues and the Canadian legal system often fail to adequately respond. Through an abductive analysis of this unobtrusive data, and drawing on theoretical work on masculinities and Erving Goffman’s concept of total institutions, the paper argues that sexually violent hazing occurs in sport not purely for the purposes of teambuilding, as it is commonly understood, but also to establish and reaffirm hierarchies of masculinity within the total institution of sport.