Should There be a Right Not To Be Raped?
Apr. 15, 2016 (Mimesis Law) — Charneshia Corley was raped. An officer claimed he smelled pot. He and other officers held her down, with her hands cuffed behind her back. They tore down her pants in a Texaco parking lot. A deputy stuck her fingers inside Corley, after he pulled her over, and so he had some other deputy stick her fingers into the woman to check her for drugs. .02 oz of marijuana was found. No apologies were made.
There’s been a lot of coverage of such rapes, lately, spurred in large part by Radley Balko’s excellent reporting at The Watch. And a lot of the discussion focuses on the same basic element. These officers are invading people’s bodily privacy without warrants.
But maybe we are focusing on the wrong question. Why would any of this be more okay just because some guy, sitting in a room somewhere, rubber stamped a form? There is no piece of paper that can justify a rape.
As Judge Posner tells us, the 4th Amendment isn’t primarily about warrants: Contrary to popular impression, the Fourth Amendment does not require a warrant to search or to arrest—ever; its only reference to warrants is a condemnation of general warrants.
So if the 4th Amendment isn’t about demanding warrants, and it specifically finds one type of search with a warrant unreasonable (the general warrant), it seems like a leap to think that the permission of some third party somewhere somehow justifies a rape. That someone can be penetrated and harmed simply because the government needs evidence.
From time to time, the Supreme Court of the United States comes out with an opinion that creates an entirely new right from the penumbras of the constitution. Some of these rights are cherished for generations: the right to contraception, the right to interracial marriage, the right to raise one’s children as one sees fit.
Others are a little harder to defend: the right to contract for however many hours of work the parties see fit, the right for companies not to pay excessive punitive damages, the right to bring a slave into other states without worrying that he might get married, become a citizen, and demand his freedom.
The point is, these rights are what we call “substantive due process” rights. Which is an awkward phrasing, because what we really mean is that there is no amount of process that can make what the government wants to do okay. The government just isn’t meant to do some things.
So why then, is rape not on the list?
We live in a country where, based on a TSA agent’s hunch, you can be locked in a room for hours or days until you shit into a bucket. Where the government attempts to perform dangerous surgery on people against their will to retrieve evidence of guilt.
We live in a country where any ordinary citizen can be arrested for the most minor of offenses—failing to wear a seat-belt, for instance. And at that point, the police officer who arrested that citizen, who may callously taken her away from her children because she had backtalked him, can then have her strip searched as a matter of right.
Maybe it’s not a substantive due process question. Maybe there is some process that could make all these searches acceptable. But it would involve two people arguing to a judge. It would involve punishing one side when it lied. It would mean that a group of judges refusing to grant the government these rights could be characterized as right, rather than rebellious.
On this blog, we talk about the Founders a lot. Maybe that’s excessive. Maybe it’s true that even if the Constitution isn’t a living document, it belongs to the living, and it up to us as a people to decide how it will apply to us. But if there is one area of consensus, can’t it be this?
We live in a country where a court could say with a straight face that telling a 13 year old girl to take off her clothes, shake her bra, and pull out the elastic on her underwear in front a nurse in the hope of finding ibuprofen was not something that the Constitution clearly prohibited at the time.
We are a country of self-congratulation. At every baseball game, we pat ourselves on the back as “the home of the brave.” But there’s nothing brave about a country so terrified of its government that we let it hurt us, hurt our children, all to punish us for crimes that would struggle to hold up in a referendum.
We aren’t the fairest country in the world. And we aren’t the freest. All we can do is hope to be better. And the least we can hope for is a promise from the government that our bodies are our own. If rape isn’t barred by substantive due process, it should be. And if it isn’t, then it is time to pass laws to protect ourselves, and to vote out the people who won’t.
 And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.