Campus Sexual Assault Adjudication and Resistance to Reform

The forty-year history of rape law reform sheds light on current debates around the adjudication of campus sexual assault. Two strands of rape law reform are important. The first, a progressive reform movement, abolished the unique procedural hurdles in rape prosecutions. That movement is now transf...

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Bibliographic Details
Published in:The Yale law journal 2016-05, Vol.125 (7), p.1940-2005
Main Author: ANDERSON, MICHELLE J.
Format: Article
Language:English
Subjects:
College campuses
Colleges
Crime victims
Criminal complaints
Criminal justice
CRIMINAL LAW
Criminals
FEATURES
HIGHER EDUCATION
Law and legislation
LAW REFORM
Laws, regulations and rules
Legal reform
PUNISHMENT
Rape
Reform movement
School violence
Sex offenders
Sexual assault
Sexual consent
SEXUAL OFFENCES
Social aspects
United States. Department of Education
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Summary:The forty-year history of rape law reform sheds light on current debates around the adjudication of campus sexual assault. Two strands of rape law reform are important. The first, a progressive reform movement, abolished the unique procedural hurdles in rape prosecutions. That movement is now transforming the key elements of the crime: force and nonconsent. The second reform movement, conservative in nature, increased criminal and civil punishments for rape. While there has been a backlash to the reformation of force and nonconsent, there has been little political or scholarly opposition to the imposition of increased punishments for rape. The Office for Civil Rights at the Department of Education recently clarified that Title IX, which outlaws sex discrimination in education, requires colleges and universities to respond promptly and equitably to allegations of campus sexual assault. In addition, colleges and universities are increasingly adopting affirmative consent rules, a standard higher than most state criminal codes, to govern sexual activity on campus. These progressive changes in campus sexual assault adjudication have faced a backlash, mirroring the backlash to progressive rape law reform. Rape law's evolution over time suggests not only that we should support campus adjudication of sexual assault under an affirmative consent standard, but also that we should oppose both unique procedural protections for those accused and mandatory punishments for those found responsible.
ISSN:0044-0094
1939-8611