Rape and the Law
Rape and the Law
“Carnal knowledge of a woman forcibly and against her will,” is how English common law defined rape (Lyon, 2004), and this definition was adopted in the United States, and many of the elements remain in tact: intercourse, force, and non-consent. This point of view is reflected in the still-ubiquitous story of rape: a large, male stranger pulls a young, attractive woman – preferably a virgin – off of a dark street and into an alley, where he threatens her with some kind of weapon before tearing her clothes away and forcing himself upon her. In reality, most rapes are committed in a home – the victim’s, friend’s, or neighbor’s – and by someone known to the victim (Anderson, 2005). The FBI’s Uniform Crime Reports still defines rape in virtually the precise words from English common law (ibid.), and the mythical rape – the first narrative – is truly three crimes: kidnapping, assault, and rape. The law seems only to treat the first two as crimes, and not the rape itself – only the additional acts of violence are criminalized (ibid.).
One article, All-American Rape, by Michelle Anderson (2005) describes this phenomenon, and call the in-home acquaintance rape the “all-American rape”, noting that only in six states does the all-American rape garner full weight as an offense and that twenty-seven states this all-American rape is not considered criminal at all (Anderson, 2005). The article points to multiple rape studies that show that both the victim and the perpetrator experience the rape as an act of power and dominance, and that rape is “sexually invasive dehumanization” and should be treated legally as such.
The biggest changes in rape law include the near-abolition of the marital rape exception and the shift of focus from the force of the attacker to the non-consent of the victim (Lyon, 2004). Currently, only one state – Kentucky – maintains the full marital rape exemption: that no husband can criminalized for forcibly having sex with his wife. Most states either refined or removed the marital exception during the 1970s and 1980s (ibid.), with approximately half of the states including some level of exemption or special consideration for marital rape. There has also been a major overhaul by many states, rewording their rape statutes to stress a lack of consent over the use of force, often by minimizing the level of resistance which a victim must put up in order to qualify a sex act as rape, though forty-three states and the District of Columbia still require some level of force be used to convict a defendant of the “highest, non-aggravated sexual offense” (Anderson, 2005).
Withdrawal of Consent
The most recent changes in rape law are those regarding the withdrawal of consent and continued penetration a piece of the definition of rape. As of 2003, only eight states have determined in one way or another that a woman’s withdrawal of consent during sex requires the man to stop, lest he be qualified as a rapist. Maine was the first state to issue such a decision; in 1984, the Maine Supreme Court decided that “a rape occurred because of the defendant’s use of forcible compulsion to make the victim submit to continued intercourse after she withdrew consent,” in the appealed case of Gordon Robinson III (Lyon, 2004). Similar decisions were then handed down by Connecticut, South Dakota, Minnesota, Alaska, California, and Kansas – all in response to an appeal or trial (ibid.). Illinois is the only state that has changed its statute outright to define continued penetration after withdrawal of consent as rape. Called the “No Means No” Act, it read: “a person who initially consents to a sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct,” (ibid.) It was introduced into the Illinois State House of Representatives, and was signed into law in July, 2003 (ibid.)
In the State of California
California law defines rape as “an act of sexual intercourse…accomplished against a person’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the person or another." (per the California penal code)
Importantly, the law also includes when an individual is unable to consent. If a person is under the age of majority (18), intoxicated, passed out, asleep, or severely developmentally disabled he/she is unable to consent to sexual activity. Thus, any such activity with said person is considered sexual assault.
Anderson, M. J. (2005) All-American rape. St. John’s Law Review, 79 (1) 625-644.
Jacobsen, M.B., and Popovich, P. M. (1983). Victim attractiveness and perceptions of responsibility in an ambiguous rape case. Psychology of Women Quarterly, 8 (1) 100-103.
Lyon, M. R. (2004). No means no?: withdrawal of consent during intercourse and the continuing evolution of the definition of rape. The Journal of Criminal Law and Criminology, 91 (1) 277-314.