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Suing Rapists

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Claire Bushey has this article in Slate, titled "Why Don't More Women Sue Their Rapists?" The subtitle is "Because the Supreme Court took away part of the Violence Against Women Act." But reality, as usual, is more complicated than that.

In the federal Violence Against Women Act, Congress created a federal civil action in 42 U.S.C. §13981, and it amended the civil rights attorneys' fee statute, 42 U.S.C. §1988, to include those actions among those for which a prevailing plaintiff may be awarded attorneys' fees as well as damages. In United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court decided that Congress had stretched its powers too far, and these matters must be left to the states.

States, of course, do have tort suits for battery, which certainly includes rape. They do not, generally, have a provision for attorneys' fee awards for prevailing plaintiffs. But is that the main obstacle for rape victims who want to sue rapists? No. The main problem remains that most rapists simply don't have enough money to be worth suing. "You can't get blood out of a turnip," as the saying goes. An attorneys' fee award is a scrap of paper if the defendant has nothing to attach.

State legislatures can and should provide for attorneys' fee award for victims of violent crime who recover money judgments against the perpetrators. But don't expect miracles. You still can't get blood out of a turnip.

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Most rapists do not have assets. Agreed.

However, most rapists have been in the "system." The system once had control of their bodies. If the "system" mistakenly loosed this predator, and fell below standards of due care, the victim should be allowed to sue the careless agency responsible for the rape.

After the third conviction for a sex offense, the rapist should be considered a full agent of the "system," since the subsequent offenses have planetary orbit class foreseeability.

I would like to hear any justification for the self-dealt immunity of all the sectors of this "system." No immunity seems justified, either legally or for policy, not even that of the judge.

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