NCJ Number
182004
Journal
American Criminal Law Review Volume: 36 Issue: 4 Dated: Fall 1999 Pages: 1371-1394
Date Published
1999
Length
24 pages
Annotation
In her article, "Rape," Susan Estrich identifies two types of rape: "traditional" rape (a violent rape committed by a stranger) and "nontraditional" rape (a less violent rape committed by an acquaintance of the victim); in this article she proposes a sentencing structure in which the penalty for "nontraditional" rape is the same as that for "traditional" rape.
Abstract
In exploring the various harms of rape, this article first focuses on a narrow interpretation that identifies physical injury as the only harm of rape. It then proposes a broader perspective that views the harm of rape as including the injury to a victim's psyche and sense of trust as well as the harm done to all women, both victims and nonvictims. The author then explains Michel Foucault's proposal for assigning criminal penalties in accordance with the disorder a crime is capable of initiating. She then combines the broader definition of rape's harm with Foucault's analysis to conclude that, at a minimum, "nontraditional" rape should be penalized commensurately with "traditional" rape because of the significant threat that "nontraditional" rape poses to the social fabric. The article describes and applies to the rape context sociological models that support this sentencing proposal. The concluding section of the article explores whether economic models of crime support commensurate sentencing. 135 footnotes