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LIRA@BC Law

Abstract

Rape law is largely underenforced. Yet criticism of policing practices has myopically focused on enforcement excesses, thus overlooking the problem of the state withholding protective resources. This neglect is particularly troubling where sexual violence is at issue. Empirical evidence demonstrates the operation of pervasive biases in police officers’ decisions not to pursue an investigation. Over time, law enforcement officers have discriminated against rape victims with immunity. Recently, however, this has changed. This Article is the first to describe a new effort by the United States Department of Justice to hold law enforcement officers accountable for failing to protect victims of sexual assault. In important respects, this turn is unprecedented. But insofar as the latest developments target violence without redress, the assertion of federal power in this domain possesses a venerable historical pedigree. When the Equal Protection Clause was conceived, the framers were chiefly concerned with the states’ failure to provide black citizens with protection from private violence. After passage of the Fourteenth Amendment, the “protection model” of equal protection, along with the federal power to enforce it, lay dormant. Recent events have revived this model and this power, allowing us to glimpse a modern version of what the 39th Congress intended. The Justice Department’s latest deployment of its “pattern or practice” enforcement authority may come as close as any intervention since Reconstruction to addressing the framers’ core concern with underenforcement. Notwithstanding the Supreme Court’s divergent jurisprudential framework, the original meaning of equal protection has begun to resurface.

Files

File nameDate UploadedVisibilityFile size
05_tuerkheimer_A1b.pdf
8 Sep 2022
Public
960 kB

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Metadata

  • Subject
    • Civil Rights and Discrimination

    • Constitutional Law

    • Criminal Law

    • Criminal Procedure

    • Fourteenth Amendment

  • Journal title
    • Boston College Law Review

  • Volume
    • 57

  • Issue
    • 4

  • Pagination
    • 1287

  • Date submitted

    8 September 2022