UCLA Law Review Volume 60, Issue 4

Real Women, Real Rape

There are several reasons to find rape shield laws troubling. From the point of view of many defense lawyers and civil libertarians, rape shield laws, by curtailing a defendant’s ability to offer evidence of an accuser’s prior sexual conduct, unfairly circumscribe a defendant’s right to confront witnesses and present relevant evidence in his defense. By contrast, rape shield proponents argue that rape shield laws are too weak and are so riddled with exceptions that they amount to little more than sieves. This Article calls attention to two other problems with rape shield laws—problems that can be traced to the very enactment of rape shield laws but that for the most part have remained hidden, unnoticed, and unremarked on. The first problem concerns the expressive message implicitly communicated by rape shield laws: that jurors should assume the complainant is a virgin, or at least notionally a good girl, and thus deserving of the law’s protection. Because of rape shield laws, any suggestion that women may lead healthy sexual lives is quietly pushed to the side and corseted. In short, the concern is that in pushing for rape shield laws feminists, victim rights advocates, and prosecutors have reinscribed the very chastity requirement they hoped to abolish. The second problem is what I term expressive message failure, which occurs when a rape shield’s message conflicts with preexisting rape scripts: those assumptions we have about what rapists look like, what constitutes rape, and most importantly here, what rape victims look like. The Article sketches out solutions to these specific problems and gestures toward a broader solution to tackle other flaws with rape shield laws.

Disaggregating Disasters

In the years since the September 11 attacks, scholars and commentators have criticized the emergence of both legal developments and policy rhetoric that blur the lines between war and terrorism. Unrecognized, but equally as damaging to democratic ideals—and potentially more devastating in practical effect—is the expansion of this trend beyond the context of terrorism to a much wider field of nonwar emergencies. Indeed, in recent years, war and national security rhetoric has come to permeate the legal and policy conversations on a wide variety of natural and technological disasters. This melding of disaster and war for purposes of justifying exceptions to ordinary constitutional and democratic norms is particularly apparent in governmental restrictions on the flow of its communications in disasters, as limitations on information flow that might be warranted when there are thinking enemies (such as in times of war) are invoked in disaster scenarios lacking such thinking enemies. The extension of wartime transparency exceptionalism into nonthinking-enemy disasters—reflected in both legislation and official rhetoric—risks the illegitimate construction of enemies by government, the unwarranted transformation of public spaces into war zones from which the public can be more easily excluded, and the inappropriate reliance on notions of the “fog of war” to justify communication failures and overbroad access restrictions. Only by consciously disaggregating dissimilar forms of emergencies and removing the rhetoric of war from disaster decisionmaking can the government make appropriate determinations about the provision of information in times of community or national crisis.

Decomposing the Precarious Future of American Orchestras in the Face of <em>Golan v. Holder</em>

Last term in Golan v. Holder, the U.S. Supreme Court upheld the constitutionality of section 514 of the Uruguay Round Agreements Act, which extended copyright protection to millions of foreign works of art, literature, and music previously in the public domain. This decision will likely have a deleterious impact on America’s faltering symphony orchestras.

By removing important staples of the symphonic repertoire—including works by Prokofiev, Rachmaninoff, Shostakovich, and Stravinsky—from the public domain, Golan dramatically increases the cost of performing these works. This is because copyright- protected music is more expensive for orchestras to perform for two reasons: The orchestral parts are generally available on a rental-only basis, which is dramatically more expensive than buying the parts, and orchestras must pay public performance license fees to perform such works. Moreover, section 514 has been implemented very inefficiently, making it both challenging and costly for orchestras to determine which works have been restored to copyright and to whom those rights belong. By making it both more difficult and more expensive to perform these works, Golan decreases the ability of U.S. orchestras—which are already facing serious financial difficulties—to perform these works.

This Comment argues that decreased dissemination of works restored to copyright under section 514 undermines American copyright law’s purpose of “promot[ing] the Progress of Science and useful Arts.” It further suggests that decreased performance of these works harms society as a whole because decreased dissemination of section 514 works robs society of cultural enrichment and societal benefits associated with involvement with the arts.

In Need of a Fix: Reforming Criminal Law in Light of a Contemporary Understanding of Drug Addiction

This Comment challenges the assumption that actions associated with drug addiction can be easily classified as either voluntary or involuntary. As an alternative to this black-and-white distinction, this Comment advances the concept of a semi-voluntary act category to describe more accurately a drug addict’s choice to use drugs. When limited appropriately to drug addicts rather than all drug users, this category provides an avenue for a partial affirmative defense that would result in a verdict of not guilty but responsible. This verdict would more fairly treat drug addicts who commit crimes while intoxicated by reducing the stigma of a finding of guilt and by demanding that the defendant take responsibility for their drug addiction and seek effective treatment.

Second Amendment Challenges to Student Housing Firearms Bans: The Strength of the Home Analogy

Public colleges and universities or state governments often ban the possession of firearms on public university or college property. These bans typically extend to student housing. While much has been written about campus bans on the carrying of concealed firearms, the topic of gun bans in the student housing context has been largely unaddressed in Second Amendment literature. This Comment seeks to fill that gap by evaluating potential student challenges to firearms bans in the student housing context in light of potential standards of review courts may apply and in light of the U.S. Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago. This Comment concludes that students may challenge firearms bans in student housing by characterizing student housing as homes for purposes of Second Amendment analysis. Given the close analogy between the homes in Heller and McDonald and certain forms of student housing, these challenges are likely to persuade a court to strike down student housing firearms bans that prohibit the use of firearms in self-defense in students’ homes for violating core Second Amendment protections, especially in cases involving apartment-style student housing.