Legal Research Paper On Rape
Legal Research Paper On Rape
Legal Research Paper On Rape
Delaney E. Versprille
Abstract
In this paper, it explores the topic of how rape is mishandled in the hands of the United States
society and justice system. The overarching topic is the missentencing of perpetrators of rape and
how there is no consistency in the system in regards to this issue. This paper will show all of the
different aspects that affect rape court cases. It begins with how this issue came about, which
includes talking about what rape is considered in the law and how big of an issue rape is in the
United States. It then will go into the discussion between the two different views on how rapes
occurs. There are two types of rape that one the public believes what occurs and the second is the
type of rape that occurs most often, but is hidden from the public’s view. Then the paper will
display the cases that brought the issue to the surface of many. After the cases are discussed, the
paper goes into talking about the different viewpoints from the victim and perpetrator. Consent is
also a major part of rapes that is discussed before getting into the aspect of rape kits. Rape kits is
a big part of the paper, as it shows what the victim has to go through after an attack. After the
discussion of the kits, the paper goes into talking about places and factors that can contribute to
a perpetrator attacking an innocent person. This involves their ethnic backgrounds, college
campuses, and how rape can even occur in marriages. After the bulk of the paper is discussed,
which includes the statistics and events, the paper ends with comparing the laws already in place
and mentions possible solutions. At the end of the paper, the goal is for the reader to gain a new
perspective on this issue and learn information that wasn’t known before.
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What is considered fair? By definition fair is treating people equally without favoritism
or discrimination ("What Is FAIR? Definition of FAIR (Black's Law Dictionary)," 2011). Rape
is a serious social, but also legal problem in the United States. Rape is one thing in our justice
system that is not handled fairly. Rape is a serious issue in the United States that is simply
overlooked by the courts. Many times no one believes victims, making them not wanting to
report the attack, which lets the rapist walk free. In our justice system there is no consistent
sentence for committing rape, making it easy for judges or a jury to decide however they see fit.
Another question that comes into play are the degrees of consent. Under traditional common law,
rape is the "carnal knowledge or sexual intercourse, by means of force, without the consent or
A lot of rapes occur on college campuses specifically at parties. Gang rape is prevalent at
these parties since there is alcohol and drugs involved. Many of these student victims don’t
report what happened allowing the assailants to not be convicted. If the assailants are arrested,
often times they get a weaker sentence than is actually required by the law. A vast majority of
sexual assault crimes go unreported regularly. Perpetrators of a sexual assault are the least likely
to go to jail for the crime committed than any other criminals. Out of 1,000 rapes, 994 of those
perpetrators will walk free (J. Knowlton, Personal communication, October 21, 2017).
In reality rape should be a charge of 20 to life in prison, but after further research it has
been concluded that there is not a specific, consistent time that perpetrators spend in prison. On
the other hand, the victims that are telling the truth lose their credibility. A lot of times men
claim that the woman was “asking for it,” meaning that she put off the “vibe” that she wanted the
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interaction to happen. The victims are the ones that get blamed for the rape according to how she
dresses or acts. Our society teaches “don’t get raped” rather than “don’t rape.” Why are women
taught how not to become a victim, when men aren’t taught not to victimize? Most professionals
or law enforcers don’t understand that rape takes something from the victim. It takes or destroys
a person's physical integrity or safety. From the victim’s viewpoint rape is a violent forceful
experience that may cause injuries like internal tears and leaving scars. The United States justice
system fails to adequately sentence perpetrators of sexual assault due to the lack of consistency
Now let's talk about the “All-American” rape and the contrast between it with the
“Classical” rape. According to St. John’s Law Review, there are two different ways that rape is
perceived in the United States. The classical rape can be described how the rape occurs when the
woman is walking alone at night time and is taken by gunpoint. This is how rape is usually seen
in America, when in reality this is only a small portion of how a woman could get raped. In the
All-American rape it occurs at a college party where alcohol is involved between two people
who like each other, where race isn’t a factor either. In the classical rape narrative two crimes
usually happen, assault and the rape, but in the All-American rape only one crime occurs, and
that is the rape itself. The English Common law defined rape as “a man obtaining sexual
intercourse by force and without a woman’s consent.” 16 states and D.C. do criminalize sexual
assault that is without consent and without force, but more than half of non penetrative sexual
assaults are only considered misdemeanor. The majority of the All-American rapes are usually
not consider rapes at all in statutes. Due to many victims not coming forward since they feel like
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they might be blamed if they do; therefore, the classical rape is the official rape in this country.
This is causing the All-American rape to be suppressed from the public’s eyes. According to
Professor David Bryden, sexual intercourse is usually a pleasurable act, and that it is usually a
mutually pleasurable act even in dishonest situations. Without any violent/physical assault, the
law has often considered that there is no harm in rape. This can be shown in the case Coker v.
Georgia, which there was no physical harm, but the victim has been raped. Our country allows
everyone to have a sexual choice, and rape is considered by professor Schulhofer as “sexual
abuse,” which can be different than the classical rape. When a woman’s existence just doesn’t
matter, intercourse becomes rape. To the rapist rape is about total domination and treating the
victim like an object. All in all, the All-American rape disregards sexual choice and it degrades
the body and spirit through being looked as an object and the fact of domination. The United
States government doesn’t criminalize rape since the “All-American” rape or the general rape
isn’t shown and isn’t perceived as rape. This country has a very specific view on what rape is,
but people don’t realize that the “classical” rape is very rare occurrence. Officials need to realize
that rape can happen in many ways, and it is usually never talked about or reported. Since it is
rarely reported, Americans have a false viewpoint on rape. There are many different viewpoints
on what rape should be considered as in the law, and this needs to change to be more consistent.
Since the All-American rape has grey lines due to a victim not knowing if she was raped, there
Cases
Brock Allen Turner v. the State of California became a leading case in the United States
on the issue of sexul assault. In this case the defendant, Turner, was charged for the sexual
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assault of a fellow peer on the college campus of Stanford University. Turner was found by two
bystanders on top of the unconscious woman thrusting her by a dumpster. Turner was a swimmer
for the college and a highly intelligent individual. These aspects factored into his trial. Turner
was convicted of raping the young woman, but only received six months in jail and three years of
probation. After he was sentenced, Turner only ended up serving three months in jail due to
having good behavior. This shows how his sentencing was nowhere long enough to be the proper
amount of time to serve for the crime that he committed. In this case it is apparent that some bias
from the judge formally attending Stanford and that Turner came from a very wealthy family.
This case is a perfect example of how the United States justice system is inconsistent with
sentencing regarding rape. This is unheard of because the minimum requirement for jail time in
a state prison is 2 years for rape. The judge said he only gave Turner six months and three years
of probation because he believed he was a “good kid.” However recently, Turner is facing the
justice system again, appealing his case on the basis of an unfair trial. Turner is claiming that he
experienced an unfair trial since the character witness testimony was excluded. According to
Turner, this testimony would have showed his successful swimming career, performance in
school, and attested to his honesty. Turner’s appeal is victimizing the victim, Emily Doe, by
trying to show the court how intoxicated she was during the attack. Turner was served a fair trial
and a greatly reduced sentence. He was given only three months in jail and three years of
probation, when in reality he should of been sentenced to 14 years in prison. There needs to be a
set amount of time for a convicted rapists to spend in prison. This will allow for many to be safe
from these type of people (The People of the State of California vs. Brock Allen Turner).
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Another case that displays incorrect sentencing or the ignorance of courts towards sexual
assault cases, was the quarterback of Florida State Jameis Winston. Winston was accused of
raping a young woman of the same university. He was accused of rape in 2013, and both the
university and the local police department ignored the allegations against the starting
quarterback. He later went on to win a Heisman Trophy. Winston didn’t deny the accusations,
but he rather kept saying that the sexual encounter was consensual. Winston only received minor
disciplinary actions by the university for breaking the honor code (Tracy, 2016).
Many states make it known that for a rape to be considered an actual rape in their state,
there has to be physical harm shown. This is what happened in the case Coker v. Georgia, where
there was no physical harm able to be shown, but the victim was raped. Ehrlich Coker, who was
serving for various sentences on rape, murder, and kidnapping, escaped from prison. He then
proceeded to break into a couple’s home, then proceeded to rape the woman and steal the
resident’s car. The woman who had been raped didn’t show major injuries, making it difficult for
the defendant to be convicted. It helped that the defendant had been already sentenced on rape
Jail Time. With each sentencing varying in regards to time, it affects the way that
similar cases in the future will be decided. If the victim were to decide that they want to report
the attack, they would have to first go through an extensive examination using the rape kit lasting
at least two hours. After the kit is sent off, the police department would have to wait 3-6 months
to get the results from the attack. After that process is over, going to court will take longer than
you would expect. On average the length of a case would last at least a year or longer. This is a
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reason that makes the victim not report the incident due to not seeing a point in the whole
DNA Technology. The new DNA technology that has been developed plays a role in
persecuting defendants. The technology allows the crime lab to be able to find DNA on an item
up to five days after the incident (J. Knowlton, Personal communication, October 21, 2017).
It can identify an unknown assailant and confirm the presence of a known suspect. It can
affirm the survivor's account of the attack and discredit the suspect. It can connect the
suspect to other crime scenes and identify serial offenders. It can exonerate the wrongly
The new technology has allowed for DNA to be obtained even after 5 days after the attack. The
technology has also helped with tracking the victims or attackers steps through phone logs,
which can give the police a timeline of the victim before the attack. This helps especially when
Consent
Apparently if a victim were to give consent to any sort of sexual intercourse, they are
consenting to any other sexual act in the state of New York. The degree of consent has recently
come into question in the justice system in deciding what is considered rape. There have been
many legal definitions of rape, and consent comes into question in many of the definitions. The
new law “Yes means yes” has changed the consent process making it only “consensual
intercourse” when both parties are in agreement and have knowledge of what is allowed. State v.
Alston showed how the presumption of the rape shield expectation operates in a case involving a
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prior relationship between the victim and the defendant. The laws that are set in place only focus
on how well the victim fought off her attacker, since most laws require there to be clear physical
harm. Rape law recognizes generalized consent to sexual intercourse when the victim gave some
form of consent during the rape itself. To this day, lack of consent is insufficient when
withdrawn. Consent should be a verbal “yes” every time, even if the sexual relations are
Different Viewpoints
What factors into most of the legal decisions of a case would be the evidence. The
viewpoints from the victim and the defendant can be different, and often the victims are accused
Victims. For the victims of rape, they need concrete evidence towards the crime that was
committed. Police sometimes desensitize the seriousness of the situation, neglecting victims
feelings. Since the victims aren’t always taken seriously, according to Department of Justice,
only 344 out of every 1,000 sexual assaults are reported to police. This means about two out of
three go unreported everyday ("Criminal Justice System Statistics," 2016). The justice system is
the reason that more than half of these assailants are not charged or convicted for the crime that
they committed. In the case Nevada v. Jackson, Jackson was arrested for forcing his way into his
girlfriend’s apartment, assaulting her, threatening to kill her, and raping her. His girlfriend
testified that this had happened previously, but she never reported it. Thankfully, he was found
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guilty, but this shows how when women don’t report the crime, it will only recur ("Nevada v.
Jackson, 2013).
Perpetrators. Since the courts are giving out watered down sentences to these criminals,
it gives them a second chance to change their ways. This can be what happens to the criminals of
the campus rapes and gang rapes. These assailants are usually college men with parents with
high expectations. Most of the time the men raping these women state that the victims asked for
it by the clothes that they were wearing and how they were acting. People feel that women and
their attire play a part, desensitizing victims and creating bias on how a woman should dress in
order to avoid the situation. The use of alcohol plays a major role when the assailants rape their
victims. A majority of rapes occur at college parties where students minds are altered and
affected by the alcohol they have consumed. This plays into when these regular college men
decide to cause harm to another person. Alcohol is a depressant, which alters a person’s central
Most of the time these assailants, similar to the victims, cannot remember the crime that
took place. This memory loss can be due to the traumatic event or repression, but most of the
time the assailant’s mental state was abnormal when the event took place. Due to the alcohol that
was affecting the person’s body it could cause them to not remember what happened in the
situation. People who drink can continue to build a tolerance to the amount of alcohol one can
consume before feeling a “buzz.” However, depending on the person and their tolerance, the
brain can only handle so much after consuming alcohol, until one can not ultimately make
conscious decisions and recall the situation. Confabulation is a memory disturbance, defined as
the production of fabricated, distorted or misinterpreted memories about oneself or the world,
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without the conscious intention to deceive. This is what occurs to someone after they have
consumed a large amount of alcohol (Myers, 2006). Alcohol is the confabulation to the series of
events that can unwind. The remembrance of the situation is important in building a case against
the accused.
Rape Kits
Rape Kits are scientifically called a PERK, meaning Physical Evidence Recovery Kit.
Every state has its own individual kit with specific things in each. When sent into the crime lab,
it will take up to 3-6 months due to many reasons like the crime lab being overworked (Reilly,
2015 17 jul). One of the steps that contributes to rape kits going untested, is when the kit is
booked into evidence, but the police officers never request a DNA analysis. The second factor
that contributes to the backlog of these kits, is how the crime labs do not complete the DNA
analysis on a timely manner. Theses crime labs are not committed to completing these test on the
kits, as it is not their main priority. It is hard to tell how many rape kits go untested as there is no
mandate on the tracking and testing on rape kits ("What Is the Rape Kit Backlog?," n.d.).
The professionals that perform these kits are known as SANE nurses, which stand for
Sexual Assault Nurse Examiners. These nurses have many different aspects of their job, which
includes physical and emotional assessments, evidence collection, consult on cases as an expert,
and they teach the community about this profession. According to Jennifer Knowlton, after a
victim comes into her clinic, they have two reporting options. These options include the regular
report, which includes a legal report, an exam, medicines, and for the PERK to be analyzed. The
other option is the anonymous report, which includes a delayed legal report, an exam, medicines,
but no analysis of the PERK. In regards to collecting all of the prevalent evidence, there is a time
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frame at which the evidence can still be collected and tested when sent to the crime lab (J.
For a victim to get a rape examination after the fact is an intrusive process. The whole
examine takes up to 2 hours, and depending on where the victim was attacked depends on the
areas that need to be tested. There are steps that the examiner has to take in order to not violate
the victim’s rights in any way. Before the examiner can begin the testing, they first need to
obtain consent from the victim. Now this can be difficult if the victim is underage and the parents
are against their child getting an exam. If there is no consent, a search warrant can be obtained in
order for the exam to factor into the case. After the consent is taken care of, the head-to-toe
assessment can begin and the first step is to have the victim change out of their clothes so that
they can be bagged as evidence. The next step is for the victim to indicate exactly where the
perpetrator touched them so the examiner knows exactly what stops to focus on. The examiner
will look for signs of trauma, like swelling or cuts. They also look for hair and any other bodily
fluid on the victim. They can use a fluorescent light to help find these items on the body and
inspect the areas mentioned by the victim. The examiner also takes pictures to document the
trauma and the findings to help with the legal report. After the exam is completed the clinic or
hospital will provide the victim with medical care like, STD, pregnancy, and HIV testing. They
will provide the victims with medicines like the morning after pill and other medicines that
might help with the pain. The kits that the examiner uses to collect the evidence has step by step
instructions. This is helpful in case the victim goes to the hospital and an nurse, who has never
done a rape kit will know exactly what to do. The kit will have different envelopes for different
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test. The chain of custody of the kit is tied to the examiner until the police come and sign off on
the kit to allow it to be tested (J. Knowlton, Personal communication, October 21, 2017).
A part of rape kits that is usually not mentioned is the aspect of that males can have them
done also. Although rape is not as common in men as women, it still occurs. Also there can be
kits that are used to test suspects. This can be used to compare the kits between each other to see
if the DNA matches or the abrasions match. This exam has to occur in the 24 hours after the
attack, and the suspect has to give consent or there has to be a search warrant. When the
examiner performs this exam, they are specifically looking for physical evidence on the body of
the suspect. This test, if performed on time, can help convict the suspect based off of hard
evidence. When performing these kits on victims, time is the real challenge for examiners. This
is because certain evidence will only last on the body for a certain amount of time. Another
factor that affects these exams, is if the victim changes their clothes, uses the bathroom, or takes
a shower. By the victim doing this it affects the evidence that was left on their body after the
attack. When the victim performs these actions after the attack, there isn’t a lot of evidence for
the examiner to test. In the job description of the SANE nurses is how they also provide
emotional counseling. Although they have to be as unbiased as possible, they are able to provide
their patients with counseling options (J. Knowlton, Personal communication, October 21, 2017).
Marital Rape
Marital rape is still possible even though the two individuals are married to one another.
Sometimes women who are married believe that it is their wifely duty to have sexual relations
with their husband all the time. What they don’t realize is that if they don’t want to, they are not
obligated to interact in that way. If their husband is forcing them, it is classified as rape since
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there isn’t consent from both parties (J. Knowlton, Personal communication, October 21, 2017).
A lot of the times, wives will be either forced or guilted into have sexual relations with their
husband. Marital rape is a crime in all 50 states, in 1993, under at least one section of sexual
offense. According to the National Online Resource Center on Violence Against Women,
approximately 10-14% of married women are raped by their husbands in the United States.
Another research done by the National Online Resource Center on Violence Against Women has
shown victims of marital rape are more likely to be raped several times in comparison to stranger
and acquaintance rape victims. These statistics show how real and prevalent marital rape is in the
United States. This type of rape is often overlooked by law enforcement as it is not reported a lot,
since the attack occurs in a marriage where sexual intercourse is implied (Stritof, 2017).
College Campuses
Due to the influence of alcohol and drugs, one out of three perpetrators are intoxicated. It
has been shown that college campuses have an increase of these substances, which can factor
into many of the rapes that occur on the campuses. The parties on these campuses are not
regulated, allowing many different kinds of alcohol or drugs to be present. 43% of rapes
incidents include the consumption of alcohol by the victims and 69% of consumption by the
perpetrators ("Alcohol and Sexual Assault," n.d.). A report from the United Kingdom documents
the role that alcohol plays in increasing the chance of sexual assault and rape. While this study
didn’t focus specifically on college students, it pointed to the overall link between alcohol use
and sexual assault. Eighty-one percent of reported sexual assaults involve alcohol and amounts
were significant enough to cause disorientation, memory loss, and loss of consciousness. In 60
percent of cases, the amount of alcohol was significant enough to "make it questionable whether
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the victim would have been able to even give consent" (French, Beynon,& Delaforce, 2007). The
problem is that if the assault is reported to the school, they will only take disciplinary actions
against the assailant. This factors into victims feeling like it isn’t important, and that they don’t
want to be embarrassed in the public eye. Another issue that factors into victims not reporting the
attack is that at the time of the attack they were taking part in illegal acts, such as underage
drinking. Victims are worried that the police will only see that they were committing an illegal
act during the time, when most of the time the police will look past the illegal act (Saul, 2017 24
jan).
Ethnic Background
The ethnic background can play a deciding role in these cases revolving around rape.
Throughout the United States, racial minorities have been tried by all white juries in all white
courtrooms, for example, in the 1931– 1932 Scottsboro rape trial. In 1910, African Americans,
who were about 11% of the U.S. population, but were 31% of the prison population. African
Americans accounted for 405 of the 455 of executions for rape between the years of 1930 and
1972. Sentencing laws were discriminatory, with the harshest punishments given to African
Americans who were victimized whites. In the past, police have also played a role in racial
violence in situations by actively encouraging or participating in mobs. Race has also been a
factor in other parts of the government. Supreme Court cases and legislation has tried to make
race discrimination unconstitutional, but in reality it is still a major factor in the United States
society and government. Although the United States has seen racial factors slightly diminish, in
the twenty-first century the U.S. has witnessed the spike in racial unfairness in the society once
again. The ethnic background or upbringing of a defendant can play a deciding factor in a court
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case involving rape. There has also been patterns studied of victimization and offending,
including social factors such as poverty, segregation, and unemployment. According to multiple
researchers and the social science, research did conclude racial discrimination does occur in
some stages of justice system and that small differences in treatment happen across the criminal
justice system resulting in larger racially different outcomes. This shows that it has been founded
to be true that race factors into crimes and the United States’s criminal justice system. In regards
to the crime of rape, it has been seen as dominated by more white males, especially on college
campuses. Reasons for this is due to the perpetrator wanting to feel like they have dominance
over their victims. This can be triggered by growing up with parents that dominated over the
perpetrator. How a person is raised or what they were surrounded by, can affect how they act as a
person including how they act towards other humans ("Race, Ethnicity, and the Criminal Justice
System," n.d.).
Comparison of Laws
California and New York have already changed regulations towards these attacks on
college campuses. These new regulations seem to benefiting the campuses with how they handle
assaults of this nature. There are many laws in regards to rape. Some include: Rape Shield Laws,
Voluntary Social Companion, the Campus SaVE Act, the Sexual Assault and Victims’ Bill of
Rights, etc. Rape Shield Laws were set in place to help to protect victim's prior sexual conduct
from being shown in court as evidence. Voluntary Social Companion “gave a reduced degree of
felony for a rape charge is the victim was a voluntary social companion of the defendant on the
occasion of rape.” This law affects the victims poorly because it is allowing for perpetrators to
get off from the crime easier. It also harms the victims case because the majority of the time, the
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victim knows their perpetrator. So this law would be put into place a large amounts of time, only
benefiting the defendant. The Campus SaVE Act “was enacted to reduce the prevalence of
sexual assault on college campuses; it includes stalking, domestic and dating violence.” The
Campus SaVE Act was enacted for the right reasons, but has not seen results in the deterrence of
rapes on college campuses. The Sexual Assault Victims’ Bill of Rights is “a drug and alcohol
amnesty policy, protocols to ensure confidentiality and emphasize a victim’s right to make both
criminal and disciplinary complaints.” This Bill of Rights “protects the victim's past sexual
relations private from the courts.” This allows for their history not to be used against them in a
sexual assault case. This is a law that cares to protect the victim’s rights and privacy, after it had
already been violated by the perpetrator. Most of these laws have a broad outlook on the topic of
rape, and all states have various definitions of rape affecting the laws that they implement
(Buchhandler-Raphael, 2017).
Solutions
In regarding the laws that have already been set in place, there needs to be stronger and
more consistent laws in choosing sentencing for perpetrators of sexual assault. Currently, there
are no actual laws stating the amount of time that should be rewarded to the defendant. Laws are
already starting to change in steps as people begin to talk about this issue more and more. For
more attacks to be reported, the justice system needs to become more responsive to the victim
and their testimony. Even if their story isn’t lining up, further steps need to be taken to conduct a
thorough investigation where no evidence is excluded. Victims should feel a sense of security
reporting rapes, and the situation should be handled delicately by police. For victims to feel safe
and not embarrassed police need to actually take action on these cases and not let them go cold.
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The main solution to this issue is to bring awareness to all ages, genders, and races. This issue
doesn’t just affect a select few, it has grown and is impacting all demographics.
Conclusion
Although there has been improvements on laws, they still do not fulfill the accurate cover
sentencing requirements or protecting of a victim. As discussed previously in the paper, there are
laws that have recently been created to help resolve this issue. Although this act has occurred,
these laws are still broad on the main topic. Laws need to be created to specify sentencing when
rape is in question. After newer laws have been set in place, the courts need to follow through
with giving a more consistent sentencing or time spent in jail. As seen in the Brock Turner case,
even though he did get convicted he only had to serve 3 months in jail. This shows the bias in the
courts, and the wide varying sentencing since in most cases the defendant would get no less than
5 years in jail. As a society, and justice system, the United States should respect the victims
allowing them to tell their story. By doing this, it will allow more people to come forward about
their story once they see others getting a positive feedback from the country. This can be
displayed in the “Me Too” campaign that has been going around social media. This shows that
once one person steps up, a whole bunch of people will not feel alone. These kind of campaigns
will not only bring awareness to the issue, but it could also bring the perpetrators to justice.
These kind of actions will give victims a stronger voice, and it will decrease the number of
attacks that go unreported. Although people say life isn’t fair, our justice system should be a
paragon of fairness by taking action against rape culture and maximizing the current laws
19
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