When the Psyche Is the Crime Scene: The Criminal Legal System's Failure to Meaningfully Respond to Crimes of Sexual Violence

Abstract

Many common sexual interactions are harmful, but do not fit neatly into the criminal legal system’s definition of what constitutes rape. Because of this, they are routinely brushed aside. However, these interactions are legitimate instances of sexual wrongdoing that require redress. In this paper, I will be discussing what happens when sexual interactions involve wrongdoing but are not currently recognized as rape by the criminal legal system. I’ll call this category of sexual interactions “gray area sexual interactions.” I will then explore why the criminal legal system fails to recognize this huge swathe of sexual wrongdoing as criminal. Even if the criminal legal system does recognize a case of gray area sexual interaction, the wronged individual is rendered a mere pawn in the prosecutor’s pursuit of incarcerating the wrongdoer. Being a pawn in the criminal legal system continues the objectification of the person wronged begun by the assault, so instead of providing redress, the carceral mechanisms of the criminal legal system actually harm both the wronged party and the wrongdoer.

In contrast, restorative justice can help a wronged individual reassert their subjectivity to the one who initially objectified them. So, I will offer restorative justice as a viable alternative to our current criminal legal regime because it seeks to support those wronged by sexual violence as they heal, in addition to rehabilitating those who perpetuate sexual wrongdoing, thereby protecting the public safety and helping to make real change.