What are you currently teaching at MSU Law and how does your scholarship inform your teaching?
This semester, I am teaching Family Law and a seminar titled The Victim–Offender Overlap in Familial Settings. My work examines the various intersections of family law and criminal law, with a particular focus on gender-based violence, including sexual violence and intimate partner violence.
My recent scholarship addresses how victims of intimate partner violence sometimes commit crimes as a result of their own victimization, and how they are treated both in the criminal justice system and in the child welfare system, through neglect proceedings.
I bring insights from this research into both classes. In Family Law, for example, I cover how family courts treat domestic violence and the widespread use of civil protection orders. I also highlight how domestic violence shapes family court’s child custody determinations as there is consensus today that living with an abusive parent is not in the best interest of the child. Across all my courses, I integrate the legal, social, and empirical dimensions of gender-based violence, so that students understand not only the doctrine but also how these cases unfold in the lives of the people they affect.
What drew you to the study of sexual violence, consent, and the treatment of victims within the criminal justice system?
I was drawn to the study of sexual violence by frustration with the criminal law’s reluctance to treat sexual encounters as crimes when consent was clearly absent. Traditional rape law was built around force and resistance. When there was no physical force, and the complainant did not resist or refuse in a way the law recognized, the conduct often fell outside the criminal law, even though the complainant had not meaningfully agreed.
My doctoral dissertation at the University of Virginia School of Law, Criminalizing Sexual Abuses of Power, Authority, Trust, Dominance and Influence, addressed one version of this problem: sexual abuses of power in professional and institutional settings. In relationships such as employer and employee, professor and student, or therapist and patient, a person may submit to sexual contact without freely consenting, because the other party controls their livelihood, education, or care.
In a series of articles, I argued that the law should focus on perpetrators’ culpable conduct, particularly their exploitation of complainants’ vulnerabilities. I then turned to a second setting where consent is absent, but the law often fails to respond: cases in which the complainant is severely intoxicated and unable to express unwillingness. Many states exclude voluntarily intoxicated victims from their definitions of incapacity, leaving a significant gap in protection.
Your 2017 article, “The Conundrum of Voluntary Intoxication and Sex,” is getting attention today in the coverage of the Cornell University case. Why do you believe this is?
My ten-year-old article is now getting attention because the Cornell case has put a spotlight on the very gap I wrote about: the line many states draw between voluntary and involuntary intoxication. In New York, a person counts as “mentally incapacitated,” and so unable to consent, only if someone else gave her the intoxicating substance without her consent. A complainant who chose to drink is excluded, however incapacitated she became. She is protected only if she was so intoxicated that she was physically unable to communicate unwillingness, a standard that leaves out the many victims who remain conscious but cannot meaningfully consent. The Cornell allegations have made that gap visible to the public, and reporters looking for an explanation have found my article.
The attention is welcome, but it is also frustrating. When I wrote the article nearly a decade ago, I argued that the voluntary/involuntary distinction has no principled basis. A person’s capacity to consent does not depend on how she became intoxicated, and a perpetrator who exploits her incapacity is no less culpable because she chose to drink. I also warned that the distinction would leave serious cases unprosecuted. Since then, little has changed. Minnesota amended its law in 2021, after its Supreme Court ruling in State v. Khalil drew national outrage, but New York’s loophole is intact. Legislation to close it has not passed in other states, that still treat voluntarily intoxicated victims differently.
It should not take a high-profile case to prompt reform of a problem that has been identified, documented, and debated for years. I hope this moment is different. Governor Hochul has now said she supports closing the loophole, and the Assembly has formed a working group to review the state’s sexual assault laws. I hope legislators amend laws that protect voluntarily intoxicated victims while still giving defendants fair notice of what conduct is prohibited.
In a recent Washington Post interview you said, “In real life, victims are not perfect.” What do you mean and how does this help move the judicial system to a place where victims are believed and cared for.
What I meant is that the criminal justice system often measures victims against an ideal that real people rarely match. The “perfect victim” is sober, resists, reports at once, and gives a clear, detailed, consistent account. Many real victims don’t fit that picture.
The victims I had in mind were severely intoxicated when they were assaulted. Many drift in and out of consciousness or suffer alcohol-induced blackouts, which leave them with fragmented memories or none. Their accounts may have gaps, may change as memories surface, or may depend on what others later tell them. These are well-documented effects of alcohol on memory, not signs of dishonesty. Yet police, prosecutors, and jurors often read them as evidence that the complainant is unreliable.
These victims also face a second burden. Because they chose to drink, they are often blamed for what happened to them. Their credibility is discounted twice: once because their memories are incomplete, and again because they “put themselves” in that position. Many never report. Those who do often see their cases dropped before trial.
Acknowledging that real victims are imperfect can change this in several ways:
First, reforming the law by closing the voluntary intoxication loophole so that a victim’s choice to drink no longer determines whether the law recognizes that she could not consent.
Second, investigating differently. Training police and prosecutors to understand how intoxication and trauma affect memory, and to build cases on corroborating evidence such as witness accounts, text messages, video, and toxicology, so that a case does not rest entirely on the victim’s recollection.
Third, educating fact-finders by using expert testimony and jury instructions to explain that gaps and inconsistencies in an intoxicated victim’s account are expected and do not by themselves mean she is lying.
Believing victims does not mean abandoning the presumption of innocence or the prosecution’s burden of proof. It means taking their reports seriously, investigating them thoroughly, and judging their accounts against how memory actually works not against a standard few real victims can meet.
Your scholarship considers both the rights of victims and the due process protections for defendants. Do you believe the criminal justice system will ever be able to balance these responsibilities?
I firmly believe the criminal justice system can balance these responsibilities. I am convinced that any legal reform must account for both the interests of crime victims and the constitutional protections afforded to criminal defendants. Reforms that serve one group by ignoring the other tend to fail on their own terms and erode public trust in the system. This commitment to fairness to both sides runs through my scholarship. In my article Underprosecution Too, I argued that prosecution should be equitable: its purpose is to do justice, which requires treating both victims and defendants fairly. The criminal legal system owes fair and just treatment to both groups. The law must therefore strike a careful balance between defendants’ due process rights and victims’ interest in accountability for criminal wrongdoing.
Michal Buchandler-Raphael's recent news publications
- Washington Post cited work on the Conundrum of Voluntary Intoxication and Sex.
- Article titled, "Underprosecution Too" was cited in an article published in The Chronicle of Higher Education.