Document Type

Article

Publication Date

11-2024

Abstract

Over twenty years ago, Congress developed a “mountain of evidence” that state criminal and civil remedies against sexual assault and battering were inadequate. The Supreme Court rejected that evidence in United States v. Morrison, striking down a federal civil rights remedy for sexual assault and battering. Since then, there have been many civil cases of sexual assault and battering against high-profile individuals, including the recent E. Jean Carroll lawsuit against a former President. This five-year study, surveying fifty states’ civil law, asks the question prompted by Morrison: Does the civil law today provide adequate remedies to survivors of sexual assault and battery? It argues that reform efforts in the past have failed to focus on the common law, something on keen display in the Supreme Court’s recent Dobbs v. Jackson Women’s Health decision, limiting women’s right to an abortion. A common law shadow lives on in the civil law of gender assault embraced sometimes by statute and elsewhere by judicial case law. Among the surprising findings of this study: (1) when state actors (e.g., police) rape they commit a constitutional violation, but damage remedies are limited in most states by immunity doctrines; (2) civil plaintiffs’ recovery may be limited by their “fault” for provoking battering and sexual assault, blaming the victim via common law comparative fault doctrines; and (3) in most states, civil plaintiffs’ irrelevant sexual history may be admitted even though relevant evidence of perpetrators’ prior assaults are excluded. The Article recommends that states “audit” their laws through high-level legal commissions to review states’ judicial decisions on civil sexual assault and battering to examine the persistence of the common law limits on civil sexual assault claims.

Publication Citation

Iowa Law Review, Vol. 110, Issue 1, Pp. 167-224.

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