The materials below contain difficult facts. Difficult in part because they are detailed, detailed because the legal standard often requires close examination of those details. Nevertheless, it is important to learn and understand the law relating to rape and to therefore apply that law to the facts.

Indeed, even the teaching of rape law has evolved. Before the 1980s, case books and criminal law school classes often avoided teaching rape--not because it was triggering or sensitive but because it was considered unimportant. Indeed, the reason may have arisen from the era: men dominated teaching and the student body. But starting in the 1980s, many including Susan Estrich argued strenuously that law schools should teach rape law. Please read her short article here, and a more recent article by another law professor on the same topic here.

I understand that everyone has different experiences, and some of those experiences will make this material extra difficult. I will not cold call on anyone for these cases, but I do encourage participation. Of course, I also urge everyone to treat each other gently and with respect. 

On the other hand, the statutes and cases below provide a way to handle difficult material. As with other crimes, we have elements to be met, and questions of mens rea to be decided and applied. At least for some of you, these legal tools will make the material more tractable.

Finally, most of the materials will consider men raping women, in part because most rape is by men of women. But the reality is far more complex. According to the CDC, 1 in 3 men experience sexual violence during their lives (1 in 2 for women). For rape or attempted rape, 1 in 4 women will experience it during their lifetime. And 1 in 9 men will be made to penetrate someone in their lifetime. 

Even when it comes to statutory rape, our image of an older adult male with a young girl does not entirely match reality, as this article discusses. Adult women sexually abusing minor boys forces us to consider the purposes and punishment of statutory rape laws. 

There are numerous resources for anyone who feels distress or challenge with these materials--or for any other reason. First, of course, you can always come talk to me with questions, concerns, or just to talk. Last year, several students did. I'm not a therapist of course but happy to listen and talk.

In addition, the University provides resources. CAPE provides help and advocacy, and the University Health and Counseling Center provides more general services. Finally, RAINN provides additional information and statistics about rape and sexual assault nationwide.

Some of these links also provide insight into the reality of how the legal system handles rape. It reveals that not everyone, of course, reports rape, that police sometimes handle those cases very well, sometimes poorly, and that prosecutors sometimes do not bring cases they don't think they can win. 

Sketch of the Materials to Follow

Historically, courts defined rape as sex by force. The first case we read, Lopez, considers this standard. Many states retain a forcible rape statute, either as the only definition or as one definition. Our second case brings a more contemporary definition of rape: sex without consent. We finish our first day's reading with the New York penal law--which takes a middle ground by the use of grading.

We then turn to John Z, a case that considers withdrawing consent--a very difficult but not uncommon scenario. After that, we turn to a different type of rape case: sex with a person who is legally incapable of giving consent. That includes those minors, those suffering from intellectual or physical disabilities in some cases, status such as prisoner-guard, and intoxication such as drunkenness. 

Terminology

People use different terms to describe a person who has suffered a sexual assault: survivor, victim, accuser, complaining witness, complainant, and, in the old days, prosecutrix. Each has its place. Many prefer survivor to victim to emphasize their strength and agency. Others prefer victim as aligning rape with other crimes. Both terms suffer the problem that they assume the crime occurred, and of course the point of a criminal case and trial is to determine that question. As a result, in criminal proceedings, the judge and lawyers will often use a more neutral term such as complaining witness or complainant. Or they will simply use the person's name. (I already mentioned this above in the section on Victims' Rights).

For class, feel free to use the terminology you prefer, but also feel free to try out neutral terms when we are discussing a case in which the very question before us involves whether there was a sexual assault.