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November 24, 2017

"What Rape Reform Needs: More Convictions, Less Punishment"

The title of this post is the headline of this recent interesting commentary authored by Kari Hong over at The Crime Report. Here are excerpts: 

In what is being called the “Post-Weinstein era,” victims of sexual assault and harassment are finally being believed. This no doubt is overdue, but in the context of rape, believing the victim will not be enough. Three reforms are essential to how we convict and punish rapists.

First, the way states currently define the crime of rape does not target the conduct of unwanted sex. In the United States, rape was initially defined by unwanted sex accompanied by an element of force. The proof of force was and continues to be a high bar to meet, usually requiring threats, physical violence, actual injury, or weapons....

The first needed reform to the definition of the crime of rape, then, is to abandon the definitions of rape used by 42 states. Rape should not be limited to unwanted sex when there is also force or only arising in specific contexts. Rather, all states should simply define rape as only eight currently do: sex without the consent of the other person. Full stop.

Second, unlike homicide and theft offenses, rape law has not benefited from having liability arise from more sophisticated mental states that define the crime....

The second essential reform, then, is establishing a new crime of “rape by malice,” a crime that criminalizes both those who knew — or deliberately did not care to know — if their advances were consented to. Unwanted sex arises from multiple motivations. A mens rea for rape should be flexible and responsive enough to criminalize as much unwanted sex as possible without criminalizing lawful or wanted sex.  Other crimes such as homicide have expansive definitions to capture all killings made by the predators, the fools, and the careless.  A new crime of rape by malice would do the same.

Third, these proposed reforms to the redefinition of rape would lead to more convictions. But convicting more rapists under our current criminal justice system should not be welcomed. On paper, 19 states have respective maximum terms of 99 years, 100 years, and life sentences. And 12 states begin at 10 years.

Although only six states and the federal government even compile data on the number and lengths of sentences, where data is available, the range in actual sentences for rape was from eight to 30 years.  In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows.  These numbers should be alarming.  Whereas 40 percent of people convicted of all felonies will be punished with prison terms, about 90 percent of all rapists will receive a prison sentence, and a very lengthy one at that.

In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows.  In 35 comparable countries, the vast majority impose prison terms that do not exceed five years. This short sentence does not at all communicate that the crime was not heinous, the offender not depraved, or the victim does not merit justice....

If the goal is to reintegrate into society convicted rapists who will not reoffend, the third essential reform is to impose shorter sentences for rapists.  It is shorter sentences and actual treatment that succeed over calls to simply lock them up.

November 24, 2017 at 08:38 PM | Permalink



Posted by: My friend , Docile (now in OR) | Nov 24, 2017 9:08:50 PM

This recent outburst over rape is another example of tragically misguided feminist propaganda. What does it tell me? The Left never learns. The only thing that these sexual smear attacks achieve is an internal bloodletting (Charlie Rose, Al Franken) which does nothing to damage the opposition. It is the sign of truly obsessive behavior which in the face contradiction demands greater and greater purity from the believer. When will she be satisfied? When in a parody of Islam it is the American male who must avert his eyes and wear the burka? Probably not even then, it his death she hungers for. The death of the penis she will never have, the ultimate source of male effrontery.

"In what is being called the “Post-Weinstein era,” victims of sexual assault and harassment are finally being believed." Yea, believed and the next step in the sequence is holiness, then worship, then Godhead.

Posted by: Selfie Man | Nov 24, 2017 9:14:20 PM

Here is my Harvard Law School radicalized reply. Mirandize the sex act. Carry a card, and have the female sign it. You are about to have sex. You have a right to refuse. You may have a lawyer present during sex. If you cannot afford one, one can be provided for you. Do you understand the rights I have read to you? With these rights in mind, do you wish to get boned by me?

I go further. Get informed consent. There is an 18 page consent form. Each paragraph should be initialed. Get the consent form signed by both parties before a notary public. Then, there should be a 3 day lawyer review period. The lawyer should review the meaning and potential consequences of every single paragraph. Each party should sign again, that they have gone through the 3 day lawyer review.

Now, they may proceed. I strongly advise all males to record the entire procedure, to avoid false allegations, 40 years later. In my experience, 100% of feminist allegations are false.

Posted by: David Behar | Nov 24, 2017 9:30:29 PM

Another purpose of the recording is for crime fighting. If the bra turns out to be padded, all the feminists should be arrested for rape by deception.

Posted by: David Behar | Nov 24, 2017 9:33:15 PM

The lesbian author blocked the above message on the John Jay College page.

Posted by: David Behar | Nov 25, 2017 5:33:33 AM

I don't know how much rape is prosecuted too little but to the degree sexual related wrongdoing should be addressed more, do agree a heavy punishment model (except for limited cases) is not the best policy. Addressing the needs of the victims, outing the persecutors and addressing means to guard against repeats (a culture that encourages or at least allows various of the things that is coming out now will not only bring people exposing themselves; in some cases that mentality will lead to rape).

Posted by: Joe | Nov 25, 2017 11:59:31 AM

Hi, Joe. Do you agree? All accusers making false allegations to a government official, or to a quasi-governmental official, should be arrested, tried, and sentenced to 5 years in prison. They should also be made to pay for all investigation and legal costs.

Posted by: David Behar | Nov 25, 2017 1:20:12 PM


You need a mens rea for fraud (false accusations), right? Regardless of whether the man is found guilty or not, if the woman believed that it was genuinely rape, then she simply doesn't have the pre-meditated intention of falsely accusing him, right?

That doesn't mean she wasn't perhaps recklessly negligent with his reputation, or something, (like Hillary with the e-mails) but its hard to say that if she passes a lie-detector test and a psych evaluation, that she intentionally lied.

Posted by: Curly Moe Dameron | Nov 25, 2017 10:49:10 PM

Hi, Curly. I have proposed a screening test on Facebook, for all accusers, that they pass a lie detector test. This should be mandatory for all people who know each other. For accusations between strangers, all allegations should be supported by physical evidence.

As a result of these proposals, I was called a rapist, a pedophile, a serial killer, by feminists that never met me. That is the data point where I determined that 100% of all feminist accusations are false. I am none of those criminals.

Then, I was banned from Facebook, yet again. That is why I have more time to devote to this blog, and its wonderfully intelligent commentators.

Posted by: David Behar | Nov 26, 2017 12:12:13 AM

Curly. A basic review of the charge is here. I do not see a mens rea analysis. I do see the additional element of material omission. For example, Mattress Girl failed to report that her accusations began after the boy refused her text messages to have sex again. She should have been arrested, tried, sent to prison for 5 years, and should have been made to pay all investigation and legal costs.

They recommend that the accuser correct her false allegations as soon as possible, as liability grows over time.


Posted by: David Behar | Nov 26, 2017 12:46:16 AM

Mattress Girl almost certainly lied--and should've been prosecuted for false allegations--but she seems to be the exception to the rule. Most women are made of sterner stuff than mattresses.

Posted by: Red-Haired Curly | Nov 26, 2017 6:05:53 AM

I take back my comment about the lesbian author, and sincerely apologize. She published the comment. I will submit myself to an ethics committee investigation, fully cooperate, but will not resign from being a commentator.

Posted by: David Behar | Nov 27, 2017 11:31:36 AM

Since my comment was published, I added this one.

How about this sentence being said in Sex Ed? If you are in the vicinity of intoxicated males, leave.

That may cut acquaintance rape in half.

I once said that on Facebook. I was called a rapist, a pedophile, a serial killer by feminists and their male running dogs that never met me. That is when I concluded that all feminist allegations are false, based on personal experience, since I am none of those criminals.

Posted by: David Behar | Nov 27, 2017 11:38:40 AM

So this woman wants (1) to define down rape to turn anything where consent is in any slight grey area into "rape" (2) make lots of "degrees" of rape so that we can have "actual rape" and "rape light", and (3) get more convictions.

The US criminal justice system is not fair, and it is not justice. I looked up the plea bargain rate in California in my jurisdiction, and it is about 98%. You think ALL 98% of those defendants were actually guilty? They were not. Designing the system like this woman claims will lead to a massive rise in innocent men being forced into plea bargains to a "lesser charge".

Why do innocent men plea guilty? Lots of reasons: (1) they don't trust the system to give them a truly fair trial, and so fear losing even when innocent, (2) they can't afford the expense of a private trial lawyer, and don't trust the public defender, and (3) the same reason that civil cases settle: trials are risky and "taking the deal" is the responsible risk-adverse action in most cases. everyone knows that companies who are not wrongdoers routinely pay out settlements because of the cost of litigation and risks the jury will get it wrong, why not criminal defendants.

But but "beyond a reasonable doubt!" Yeah right. That is not an objective standard. There is no way to know if it is followed. It almost never is. If a jury does not like a defendant for any reason, their collective standard is much lower, but you'll never prove it.

Posted by: lawguy | Nov 29, 2017 1:20:34 PM

Lawguy. This proposal is good for lawyer employment, do you agree?

Posted by: David Behar | Nov 29, 2017 3:38:20 PM

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