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66 Duke L.J. 1045 (2016-2017)
Rape beyond Crime

handle is hein.journals/duklr66 and id is 1069 raw text is: 

                   RAPE BEYOND CRIME

                           MARGO KAPLANt

       Public  health experts agree that sexual  violence constitutes a
    significant public health issue. Yet criminal law dominates rape law
    almost completely, with public  health law playing at best a small
    supporting role. Recent civil law developments,  such as university
    disciplinary proceedings, similarly fixate on how best to find and
    penalize perpetrators. As a result, rape law continues to spin its wheels
    in the same arguments and obstacles.
       This Article argues that, without broader cultural changes, criminal
    law faces a double bind: rape laws will either be ineffective or neglect
    the importance of individual culpability. Public health law provides
    more promising  terrain for rape prevention because it is a strong legal
    framework  that can engage the complex causes of rape, including the
    social norms that promote sexual aggression. While criminal law can
    only punish bad behavior, public health interventions can use the more
    effective prevention strategy of promoting  positive behaviors and
    relationships. They can also address the myriad sexual behaviors and
    social determinants that increase the risk of rape but are outside the
    scope of criminal law. Perhaps most  importantly, public health law
    relies on evidence-based interventions and the expertise of public health
    authorities to ensure that laws and policies are effective.
       Transforming  rape law in this way provides a framework for legal
    feminism to undertake the unmet challenge of theorizing yes, that is,
    moving  beyond how  to protect women's right to refuse sex and toward
    promoting  and exploring positive models of sex. Criminal law is simply
    incapable of meeting this challenge because it concerns only what sex

Copyright ( 2017 Margo Kaplan.
    t  Associate Professor of Law, Rutgers Law School. I am indebted to several individuals
for their thoughtful comments and advice, in particular Michelle Anderson, Katharine Baker,
Ann E. Freeman, Kimberly Kessler Ferzan, Cynthia Godsoe, Douglas Husak, Adam Kolber,
Michelle Madden Dempsey, Nancy Leong, Nadia Sawicki, Kim Shayo Buchanan, George C.
Thomas, and Alec Walen, and the editors of the Duke Law Journal, as well as the participants in
the 2016 Law and Society Conference, the Rutgers University Chancellor's New Faculty Research
Symposium, and the Rutgers Law School Faculty Colloquium.

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