Sexual Violence and Future Harm: Lessons from Asylum Law
Abstract
Sexual violence victims face unique and enduring safety risks following an assault. The legal system’s gradual shift from solely punishing offenders for past acts to protecting survivors from future harm reflects a recognition of this fact. But so-called “sexual assault protection order” statutes impose onerous “future harm” requirements – including proof by clear and convincing evidence that another sexual assault is imminent – that belies the realities of ongoing injury for victims and creates barriers to protection similar to the criminal justice approach to rape. This Article suggests a different approach, one justified by a novel analogy to the refugee protection paradigm. Asylum law prospectively protects applicants upon a showing that they have a “well-founded fear” of future persecution. Only the most severe forms of discrimination qualify as “persecution.” But applicants who can prove they have suffered a single act of past persecution enjoy a rebuttable presumption of future harm. Both courts and Congress have recognized the propriety of this presumption, given the “atrocity” of persecution and the permanent scarring it causes to “the mind of a refugee.” The same logic applies to sexual violence, long considered “the most heinous crime” short of murder. By transplanting the evidentiary framework from asylum law to sexual civil protection, this Article does two things unique in scholarly literature: 1) provides the first comprehensive consideration and overhaul of the sexual violence protection order regime, and 2) reconceptualizes asylum as a form of prospective civil protection.