Sexual Assault Jurisprudence: Rape Myth Usage in State Appellate Courts

Abstract

While decades have passed since 1994’s Violence Against Women Act, do we see American judges employing inaccurate, though widely held, myths about rape? Sexual assault has become an increasingly contested social, political, and public law issue, yet both inside and outside academia this question remains unsettled. This dissertation resolves this issue by undertaking a critical analysis of over a thousand judicial opinions discussing sexual violence in the American states. The project’s foundational questions of whether rape myths are used by the judiciary anymore, and if so, when, are answered with the responses: frequently, but variably, depending on the myth in question. Following this finding, the demographic, institutional, and political correlates of this discourse are explored. The results of these analyses highlight that while women, as a monolithic group, do not seem to be judging in a “different voice,” Democratic women are. Further, both men and women who choose to focus on gendered issues in their legal careers also have different rape myth usage patterns compared to those who do not. Finally, this gendered effect is also connected to the presence of a critical mass of women on the bench – where a critical mass of women can be found, rape myth usage among men and women on the bench is lowered, and challenges to rape myths increase. The results of these examinations inform how rape myth use by judges can be reduced and the findings of this study add critically to sociolegal scholarship’s goal of learning more about the nexus of law and society.