强奸罪立法的反思与重构

传统的强奸罪只将犯罪对象限定为女性,由于时代的不断发展,在强奸犯罪的领域出现了女性强奸等各种不同的新情况,而我国强奸罪的现行立法面对这些新情况则没有回应。本文通过对强奸罪的女性主体、男性犯罪对象、婚内强奸以及强奸罪的"自诉"化等问题进行探讨,指出:女性可以成为强奸罪的主体;强奸罪的犯罪对象也可以是男性;对未成年人应特别保护;强奸罪的一些情况可以纳入"自诉"案件的范围。     

Rape Victim Advocates' Knowledge and Insight on Rape Laws

Abstract

Although previous literature details the successes and failures of reforms of rape laws designed to better support and protect victims, there is a lack of research on rape victim advocates' knowledge of and views about rape laws. It is essential that we understand advocates' level of legal knowledge because they may be the first or only source of legal information for victims. Based on analysis of interviews with 58 rape victim advocates serving six rape crisis centers in four East coast states, this article explores advocates' knowledge about rape laws, possible reasons for limited knowledge, and perceptions about various laws that aim to protect rape victims. This research suggests that although advocates have a somewhat limited grasp of laws intended to aid rape victims, they have an overall negative view of the legal system.     

Acknowledging sexual victimization as rape: Results from a national-level study

There has been ongoing debate on how women are counted when they do not acknowledge as rapes experiences that are characterized by the key components of rape. This article explores this methodological issue by using a two-stage measurement strategy with behaviorally specific screen questions to gather information on incidents of sexual victimization from 4,446 randomly selected female college students. Our results revealed that almost half of the completed rape victims considered the incidents rapes, yet few of the attempted rape or nonrape victims considered the incidents rapes. The results of a multivariate analysis highlighted the characteristics of incidents that are likely to be considered rapes. The findings buttress the assertion that women who are counted as rape victims have experienced such victimization.     

A review of the role of radical feminist theories in the understanding of rape myth acceptance

Abstract

Research into rape myth acceptance (RMA) first emerged in the 1970s, when authors such as Brownmiller (1975) and Burt (1980) proposed that rape was a mechanism that allowed men to exert power over women and that the endorsement of rape myths justified this sexual dominance. These influential theories have meant that subsequent definitions of rape myths have failed to acknowledge male victims of serious sexual assault, despite an increase in prevalence rates. More recent research has attempted to explore RMA in relation to male victims, with results suggesting that men are more likely than women to endorse rape myths regarding male victims when the victim is assumed to be homosexual, or when the victim is heterosexual and the perpetrator is female. Brownmiller's theory is challenged and a more holistic view of the importance of sex-role traditionality is explored, while acknowledging the contribution of individual factors relating to the development of RMA.     

Attitudes toward victims of rape: effects of gender, race, religion, and social class

Although previous literature focusing on perceptions of victims of rape has examined how gender, race, and culture influence the attitudes one holds toward victims, these studies have yielded mixed results. This study compared perceptions of victims of rape across a wide range of ages, educational backgrounds, religions, and income levels, while focusing on gender and racial differences. Results indicate (N = 220) that victims of rape are generally viewed more sympathetically by females than by males and by Whites than by African Americans. However, the effect of race disappears when socioeconomic variables are controlled, suggesting a more complex relationship. Also, a hierarchical regression indicates that age, sex, education, and income are significant predictors of attitudes toward victims. This study builds on existing research that examines such attitudes from a cultural perspective and extends this literature by examining the interactive effects of several demographic variables within a community sample.     

Sexual assault nurse examiners' perceptions of their relationship with doctors, rape victim advocates, police, and prosecutors

In response to the negative and inefficient treatment of rape victims by emergency room personnel, the first Sexual Assault Nurse Examiner (SANE) programs began in the late 1970s. While SANEs, doctors, rape victim advocates, police officers and prosecutors work together to ensure the most comprehensive and sensitive care of rape victims, they all have very different roles and objectives. This research explores SANEs' perceptions of their relationships with other professionals who treat or interact with rape victims. Data from interviews with 39 Sexual Assault Nurse Examiners from four East Coast states indicate positive relationships are marked by open communication, respect shown towards SANEs as well as rape victims, and a sense of appreciation among SANEs. On the contrary, negative relationships result when SANEs believe police treat victims poorly, when advocates overstep boundaries and question SANEs about evidence collection or the exam, and when prosecutors fail to properly prepare them to testify during a trial.     

The rights of rape victims are enhanced: Using the law of premise liability for compensation

The field of victimology has been inundated with empirical evidence which demonstrates victims of crime have very few rights. Yet a new field of civil liability has been growing in the last few years which gives rape and assault victims a new avenue to be compensated for their injuries. This paper will demonstrate how the victims’ target is not the criminal justice system (through compensation from restitution or victim’s compensation statures). Nor is it the defendant (who usually makes no money). Rather, the target is the rich apartment complex owners and other owners of commercial premises who have failed to maintain their premises safely. As a result of their negligence, the victims fail to be afforded the right to visit or habitat or to sleep without fear and are ultimately raped. Jury verdicts in these premises liability cases have reached more than nine million dollars. This paper will analyze the legal process whereby one particular rape victim actualized her rights and gained significant monetary damages under this evolving law of premise liability. Finally, it proposes the creation of a new institutionalized program that promotes the rape victim’s rights to adequate compensation for her injury-the Rape Victims’ Rights and Opportunities Program.     

Accounting for the "Second Assault": Legal Organizations'Framing of Rape Victims

What organizational and community conditions influence legal officials to treat rape victims “unresponsively”? Our analysis is guided by Goffman's theory of organizational frameworks and frames of activity and March and Olsen's institutional theory of organizations. Using data from 130 m-organizations in Florida that process rape cases, we compare six types of organizations (including hospital emergency rooms and rape crisis centers) on eight criteria and review their frameworks and frames of activity relative to unresponsiveness. We use the issue of victim legitimacy to illustrate the utility of our model. Our results show that well-meaning staff in legal organizations are oriented to routinely treat victims unresponsively. Their organizations routinely orient them to be concerned with, for example, public approval, the avoidance of losing, and expediency more than with victims' needs. In our conclusion, we identify ways legal officials and rape crisis centers can promote responsive treatment of victims. We also call for research on legal organizations that are responsive to victims and for a nationwide discourse on the “politics of rape victims' needs” as a means of addressing the gender inequality issues that underlie rape crimes and laws and orient legal officials to treat victims unresponsively .     

Of public interest: How courts handle rape victims' privacy suits

In spite of a string of unfavorable court decisions, rape victims continue to bring privacy suits against news organizations that identify the victims. Based on case history, journalists have little to fear from such privacy suits because appellate courts usually find victims' names add credibility to stories and, therefore, are of public interest. Most judges seem to believe that they cannot logically rule a basic fact, such as a name, to be private in one set of circumstances and not in others. A ruling in rape victims' favor may create a slippery slope that erodes the press' First Amendment freedoms. However, the courts' limited opinions provide victims with the possibility that in some circumstance a court may rule against the press on this issue. From a journalist's perspective, a broader ruling is needed to discourage rape victims from bringing suits that, while destined to be unsuccessful, are nonetheless costly to defend.     

A preliminary analysis of feminist views on the crime of rape

Although rape has been considered a serious social problem for centuries, the rise of the Feminist Movement in North America in the 1970’s has served to bring the problem into the public eye. Leading Feminists, among them Camille LeGrand and Susan Brownmiller, have proposed new hypotheses both on rape and the rapist which differ significantly from traditional theories on the crime. Some of the Feminists’ hypotheses, particularly those which presuppose very high levels of rape and assume massive underreporting of the crime by its victims, do not receive much support in empirical surveys. But one aspect of the Feminists’ perspective on rape—that rape is an act against both person and property—is substantiated by empirical analysis of UCR data. The data suggest that the crime of rape shares significant commonalities with the crimes of property, as well as crimes of violence, and rape statistics act to hold together these two, otherwise different, categories of crime.     

Few convictions in rape cases: Empirical evidence concerning some alternative explanations

This paper examines several explanations for the low rate of conviction for rape arrests made in the District of Columbia from 1971 to 1976. Discrimination against female victims does not appear to be a major cause of the problem, nor do rape victims appear more likely than victims of other serious crimes to cause case attrition due to their own unwillingness to continue. Questioning of the victim's credibility, on the other hand, does seem to be more of a reason for case dismissal for rape cases than for other serious crimes. A multivariate analysis of the types of rape cases that do result in conviction yielded eight statistically significant variables. A new perspective on rape cases emphasizing the issues of consent and credibility is presented.     

Sexual assault nurse examiners' perceptions of the revictimization of rape victims

While Sexual Assault Nurse Examiner programs have improved the treatment of rape victims by offering more compassionate and thorough treatment, SANEs believe victims continue to face revictimization by the medical, criminal justice and legal systems. The purpose of this research is to explore SANEs' perceptions of the revictimization of rape victims by the police, legal system and medical system. Data from interviews with 39 Sexual Assault Nurse Examiners from four East Coast states reveal that most SANEs believe that the medical, criminal justice, and legal systems wield the power to revictimize rape victims. SANEs were more likely to cite the criminal justice system as a source of revictimization, followed by the medical system and legal system. According to SANEs, police contribute to victims' distress through failure to ask questions in a sensitive manner, failure to proceed with investigations, and by asking victim-blaming questions. Revictimization by the legal system results when charges are never filed, cases are postponed or dropped, plea bargains are unsatisfactory, and victims' character and credibility are questioned. Revictimization by the medical system is marked by long waits for medical attention.     

Effects of victim gender,victim sexual orientation,victim response and respondent gender on judgements of blame in a hypothetical adolescent rape

Objectives. Few studies have examined the judgements made towards adolescent rape victims, and none have investigated attributions towards gay male or lesbian adolescents. The current study examined the effects victim gender, victim sexual orientation, victim response, and respondent gender, on attributions of blame in the depicted rape of a 15‐year old adolescent. Methods. A total of 164 respondents read details of this assault before completing 15 attribution judgments. Results. Respondents were expected to attribute more blame to a victim who was male, gay, and who failed to resist the perpetrator. Male respondents were also expected to be more blaming of the victim than females. Overall these hypotheses were supported. Conclusion. Results are discussed in relation to the role gender stereotypes and homophobia play within attributions blame in sexual assault cases. Specifically, it seems male adolescent rape victims are subjected to the same negative stereotypes as male adult victims. Implications and ideas for future research are considered.     

Gender Neutrality,Rape and Trial Talk

This article examines the notion of gender neutrality in rape, its meaning and why rape definitions that include females and males as potential victims of rape have become influential in those jurisdictions that have engaged in significant levels of rape law reform over the last four decades. In so doing, several of Annabelle Mooney’s criticisms of gender neutral rape laws, published in an earlier article, will be critically examined. The second part of this article draws on themes that have been identified in the linguistic analysis of rape trials involving female complainants and applies those themes to two cases of rape and sexual assault involving male complainants. Finally, this article examines whether the tactics used by defence lawyers during cross-examination can be said to be uniquely ‘gendered’ or whether similar tactics exist in cases of male rape and sexual assault. Explanations for possible similarities in treatment are also examined.     

Expectancy violation and perceptions of rape victim credibility

Purpose. Rape victims have been found to have a heightened risk of secondary victimization in the legal system through biased perceptions of their credibility. In this study, participants observed a video of a rape victim reporting the crime and evaluated her credibility, to establish the influence of victim emotional expressiveness on evaluations of victim credibility. Methods. The nonverbal (eye‐contact, crying) and paralinguistic (tone of voice) behaviour of the rape victim was manipulated such that the emotional presentation viewed by observers was either expressive, or not expressive. One hundred and thirty seven participants were randomly allocated to observe a videotape of either an expressive or a non‐expressive victim. Participants’ specific expectations about the emotional expressiveness of rape victims in general were also measured. Results. Results revealed no significant main effect of emotional expressiveness on perceptions of credibility. However, among participants with a strong expectation of emotional expressiveness, a rape victim who was emotionally expressive was perceived to be significantly more credible than a victim who was not emotionally expressive. Conclusions. It appears to be expectancy violation rather than emotional expressiveness per se that biases observers’ perceptions of rape victim credibility.     

Traumas of a child victim of rape in India: A diagnostic study

The study reveals (a) incidences of sexual abuse of minor girls is a global problem, (b) minor victims experience severe traumas which often remain unexpressed, and (c) in the absence of proper family and social support, minor rape victims have difficulty in coping with their daily lives. Rehabilitation programs are essential for them. A specific law is needed in the country to deal with such cases separately and justly.

This study discusses the trauma of rape of minor children, first giving a macrolevel view of sexual abuse, such as rape of minor girls in India and other developing countries, then at the microlevel, analyzing the impact of rape through a few individual cases. The data is based on crime statistics of the National Crime Records Bureau for the years 1993–99 which give the figures of rapes of minor girls in the age ranges of 10 years and younger, and between 10 and 16 years.

The paper is divided into two parts. The first explores various studies of the extent of rapes of minors in different countries and gives a graphic representation of the incidence of rape and kidnapping in India. Traumas suffered by the minor victims of rape are discussed in detail and supported by few cases. The second part gives suggestions on how to rehabilitate these minor rape victims.     

The New Trial by Ordeal: Rape Kits,Police Practices,and the Unintended Effects of Policy Innovation

One of the most highly touted improvements in the criminal justice response to rape has been the wide‐scale adoption of sexual assault nurse examiner (SANE) programs that provide specialized medical care and forensic evidence collection to victims. Though previous studies have emphasized the benefits of SANE programs in improving criminal case outcomes, this study illustrates how the post‐rape forensic examination can also discourage reporting, investigation, and prosecution. Interviews with local rape care advocates across the United States show how the increasing emphasis on forensic evidence collected through rape kits may provide an opportunity to reflect and enact persistent law enforcement stereotypes toward sexual assault complainants. Unless police resistance to taking rape seriously is confronted and addressed, even well‐intentioned policy reforms such as SANE programs may end up undermining—rather than enhancing—fair and thorough investigation of sexual assault allegations.     

熟人强奸：犯罪类型与人际关系的实证研究

熟人强奸犯罪是近年来国内外在强奸犯罪研究领域的研究重点。本文在收集熟人强奸案件的基础上,通过实证的研究方法,将熟人强奸分为约会强奸、聚会强奸、非约（聚）会双向互动强奸、非互动强奸四种不同的类型,并通过对这四种类型的分类研究,探讨了不同类型熟人强奸犯罪发生与犯罪人和被害人之间的人际关系的相关性。     

Reversing the historical tide of iatrogenic harm: A therapeutic jurisprudence analysis of increases in arrests of domestic batterers and rapists

Therapeutic jurisprudence (TJ) proposes that the law is a social force that can heal or cause harm to parties in a legal action. Historically, women victims of intimate partner rape and domestic violence could not seek justice in the legal system because police, like other actors in the justice system, treated these offenses as private matters or fabrications. In domestic violence and intimate rape cases, TJ is concerned with the needs of the victims, and how the law and police play a role in increasing their well-being. In this article, we use a TJ approach to the study of police responsiveness to victims of these offenses by investigating arrests of the offenders pursuant to law reforms that encourage or mandate arrest. Given that in these offenses, victims have the lowest reporting rates of any violent crime, the victim decision to call the police represents an expectation that the mere physical presence of a police officer may redefine the nature of the violence from a private conflict to a societal wrong that will not be tolerated. Police partnership with and treatment of the victim with respect and dignity can change the dynamics of the violence, terminate the violence, and set the criminal justice process in motion by arresting the offender in most cases. Police arrest, and subsequent prosecution and conviction, sends a message to offenders that society does not tolerate their violence, and allows the victim to begin to heal. Yet, past research indicates that police are less likely to arrest intimates than acquaintances and strangers in misdemeanor and aggravated assault, rape, and sexual assault cases. Using the National Incidence Reporting System (NIBRS) for the year 2000, we examine police arrests of intimate partner rape and domestic violence in jurisdictions with mandatory and presumptive arrest policies compared to police arrests in full discretion jurisdictions. We also ascertain whether arrest rates are higher for strangers and acquaintances than for intimates in misdemeanor and aggravated assault, kidnapping, and rape and sexual assault. Third, we determine whether police arrests of intimate partner rape is more likely if there is evidence of violence, injury to the victim, and use of a weapon. Our multivariate findings suggest that both the rape and the domestic violence reform movements have reversed the tide of historical negative treatment of female victims of these offenses. Logistic regression analysis indicates that police agencies in mandatory and preferred arrest jurisdictions increase the odds of arrest for domestic violence incidents and violations of orders of protection, compared to police agencies in jurisdictions with permissive/discretionary arrest policies. In addition, intimate violence increases the odds of arrest by 98%; forcible rape accompanied by simple assault or kidnapping increases the odds of arrest by 467 and 222%, respectively whereas forcible fondling accompanied by simple assault increases the odds of arrest by 293%. We discuss the implications of our findings for future law reform as well as TJ.