Rape

A criminal offense defined in most states as forcible sexual relations with a person against that person's will.

Rape is the commission of unlawful sexual intercourse or unlawful sexual intrusion. Rape laws in the United States have been revised over the years, and they vary from state to state.

Historically, rape was defined as unlawful sexual intercourse with a woman against her will. The essential elements of the crime were sexual penetration, force, and lack of consent. Women who were raped were expected to have physically resisted to the utmost of their powers or their assailant would not be convicted of rape. Additionally, a husband could have sex with his wife against her will without being charged with rape. Beginning in the 1970s, state legislatures and courts expanded and redefined the crime of rape to reflect modern notions of equality and legal propriety.

As of the early 2000s, all states define rape without reference to the sex of the victim and the perpetrator. Though the overwhelming majority of rape victims are women, a woman may be convicted of raping a man, a man may be convicted of raping a man, and a woman may be convicted of raping another woman. Furthermore, a spouse may be convicted of rape if the perpetrator forces the other spouse to have nonconsensual sex. Many states do not punish the rape of a spouse as severely as the rape of a non-spouse.

Many states also have redefined lack of consent. Before the 1970s, many courts viewed the element of force from the standpoint of the victim. A man would not be convicted of rape of a competent woman unless she had demonstrated some physical resistance. In the absence of physical resistance, courts usually held that the sexual act was consensual. In the early 2000s in many states, the prosecution can prove lack of consent by presenting evidence that the victim objected verbally to the sexual penetration or sexual intrusion.

Lack of consent is a necessary element in every rape. But this qualifier does not mean that a person may make sexual contact with a minor or incapacitated person who actually consented. Lack of consent may result from either forcible compulsion by the perpetrator or an incapacity to consent on the part of the victim. Persons who are physically or mentally helpless or who are under a certain age in relation to the perpetrator are deemed legally incapable of consenting to sex.

Most states choose to label the crime of rape as sexual assault. Sexual assault is divided into degrees: first-, second-, third-, and fourth-degree sexual assault. West Virginia provides an illustration of how rape laws are typically written. In West Virginia, a person is guilty of sexual assault in the first degree when that person engages in sexual intercourse or sexual intrusion with another person and either inflicts serious bodily injury upon anyone or employs a deadly weapon in the commission of the act (W. Va. Code § 61-8B-3 [1996]). Additionally, a person age 14 years or older who engages in sexual intercourse or sexual intrusion with another person who is 11 years old or less is guilty of first-degree sexual assault. A person convicted of the crime of first-degree sexual assault in West Virginia faces imprisonment for at least 15 years and not more than 35 years and may be fined from $1,000 to $10,000.

In West Virginia, a person commits sexual assault in the second degree by engaging in sexual intercourse or sexual intrusion with another person without that person's consent, and the lack of consent results from forcible compulsion. Forcible compulsion is (1) physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances; (2) threat or intimidation, either express or implied, placing the victim or another person in fear of death, bodily injury, or Kidnapping; or (3) fear by a person under 16 years of age caused by intimidation by another person who is at least four years older than the victim.

Another way to commit second-degree sexual assault in West Virginia is to engage in sexual intercourse or sexual intrusion with someone who is physically helpless. The punishment for second-degree sexual assault is imprisonment for at least ten years but not more than 25 years and may include a fine of from $1,000 to $10,000.

New Approach to Treating Rape Victims

A woman who has been raped often encounters painful and humiliating procedures when she reports her sexual assault. She is sent to a hospital emergency room where she may wait a long time for a medical examination and the collection of evidence that is needed to convict a suspect. She often has little privacy while she waits. In addition, she is asked to tell her story of sexual assault several times.

The National Victim Center estimates that only 16 percent of rapes in the United States are reported each year. This low reporting rate can be attributed in part to the cold, impersonal reporting process and the rape victim's fear of appearing at the trial of the suspect.

A program called SANE (Sexual Assault Nurse Examiners), established in Tulsa, Oklahoma and several other U.S. cities, seeks to treat the emotional, physical, and legal needs of rape victims with greater consideration and sensitivity. In the SANE program, female nurses are trained to handle the physical examination of the victim and to obtain physical evidence using a sexual offense collection kit. In addition, the nurses are taught to interview the victim about the assault and to keep good records, which are critical to a successful criminal prosecution of the suspect.

Victims are seen in private rooms that are decorated to avoid the look of a sterile, hospital waiting room. The nurse examiner allows the victim to complete the examination at her own pace, in from one to five hours. A police officer is available to transport the evidence to headquarters, but is not allowed in the examining room.

Prosecutors have lauded the SANE program because its nurse examiners are better than emergency-room staff at confirming sexual contact and collecting evidence that shows the encounter was forcible rather than consensual.

SANE also gets credit for encouraging rape victims to agree to testify at the criminal trial of the suspect. It is believed that women who receive insensitive treatment during the initial stages of reporting a sexual assault do not want to proceed with prosecution. Because the SANE program treats victims with sympathy, care, and respect, women who have been examined through the program are more likely to agree to cooperate.

After the success of SANE in several cities and communities, other programs have also evolved. Several communities have developed a Sexual Assault Response Team (SART), which consists of community professionals who work jointly to minimize the trauma to victims of sexual assault when they seek medical or legal assistance. SART response teams coordinate their efforts to reduce the number of questions a victim must answer when law enforcement personnel and prosecutors collect evidence.

Members of a SART unit often consist of personnel from emergency departments and law enforcement offices. The effort is generally on a wider scale than SANE programs, and SANE and SART programs often work in conjunction with one another. Some communities have also developed programs involving Sexual Assault Forensic Examiners (SAFE), which essentially serve the same function as SANE programs.

In 2003, President george w. bush announced an initiative that would enhance the use of DNA Evidence to solve crimes. As part of this proposal, several million dollars would be appropriated to support training and educational materials for doctors and nurses involved in treating sexual assault victims. Included in this initiative is funding for SANE, SAFE, and SART programs.

Further readings

SANE-SART Website. Available online at <www.sane-sart.com> (accessed January 30, 2004).

Cross-references

Assault; Crimes; Sex Offenses; Women's Rights.

Third-degree sexual assault is committed when a person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated, or when a person age 16 years or older has sex with a person who is less than 16 years old and is at least four years younger than the defendant. Third-degree sexual assault is punishable in West Virginia by at least one, but no more than five, years in prison and may include a fine of not more than $10,000.

The provisions that refer to the age of the victim and the perpetrator are called Statutory Rape provisions. Statutory rape sections punish the perpetrator without regard to the consent of the victim. Such laws are in place in all states to enforce the generally accepted notions that children are incapable of consenting to sex because of their youth and innocence and that sexual intercourse or intrusion of a child by an older person is socially unacceptable and harmful to the child. The term statutory rape also refers to the sections that punish sex with physically and mentally incapacitated persons, who are similarly unable to consent to sex.

R ape S hield L aws: C an T hey B e F air ?

Introduced in the 1970s, Shield Laws sought to revolutionize rape trials. By prohibiting the introduction of a rape victim's reputation or sexual history at trial, lawmakers removed one of the age-old stigmas that had prevented the successful prosecution of rapists and had kept women from bringing cases to court. Originally, the laws met with widespread acceptance. Two decades after their adoption by most states and the federal government, however, they have given rise to a debate in which neither side is satisfied with them. Advocates say they have not worked as well as desired. Opponents argue that their effect has been to deny defendants a fair trial. The legal future of these revolutionary laws hinges on a difficult question: how can courts protect victims without curtailing the rights of defendants?

The origin of shield laws is a response to the historical prosecution of rape. Most accusations of rape assert that the victim did not give sexual consent. At Common Law and in the present, the vast majority of rape cases have been tried in state courts before a jury. Traditionally, convictions have been notoriously hard to win. There is usually no evidence on the consent question other than the claims of the parties, making it difficult to prove lack of consent "beyond a reasonable doubt" as required in a criminal case. Hence, at trial, credibility is everything: if the accuser is not believable, the defendant is likely to be acquitted.

Defense attorneys typically challenge the accuser's credibility. For centuries, there was one effective path to such an end: to present evidence of the victim's past sexual behavior to undermine the present allegation. At common law, the victim's past sexual behavior was always considered relevant and admissible at trial. In this way, the law embodied social and moral values that put a high premium on a woman's sexuality. Conventional views of chastity regarded the sexually active woman as being promiscuous, and, in turn, promiscuity was thought to connote dishonesty. To cast doubt on the accuser's word and to show the likelihood of her having consented to sex with the defendant, defense attorneys commonly pursued evidence about her sexual life. If she had sex with men, or so the underlying belief went, how could she have been raped?

To combat these antiquated notions, rape shield laws arose through two significant developments. The sexual revolution of the 1960s dramatically changed social values regarding premarital sexual activity, and feminist legal theory became highly influential a decade later. Feminist critics attacked the premises on which the common-law origins of rape defenses were based. Their argument posed a question that only a generation earlier would have been widely dismissed: why should a woman's sexual history matter at all in relation to her claim of rape? Not only was such evidence irrelevant, they asserted, but harmful. Its use in court discouraged a woman from bringing a charge of rape because, in effect, she would be put on trial. Fearing a public assault on her reputation, a victim had a strong incentive not to report a rape. And when women were willing to undergo a barrage of intrusive questions, they often saw their claims mocked and their violators allowed to go free.

But for political success, passage of the laws required political support. Proponents won this support from conservative lawmakers. Although not generally known for embracing either the sexual revolution or feminist legal theory, these lawmakers backed the laws in state legislatures because they represented a solid law-and-order position. The idea that criminals sometimes improperly escape prosecution through the legal maneuvering of defense attorneys, and that the law should close such loopholes, had become a centerpiece of the conservative legal reform agenda by the 1970s. With this backing, rape shield laws were easily adopted. By the 1990s, all but two states had them.

By the late 1980s, however, some proponents were troubled. Shield laws had not lived up to expectations. Merely providing protections to victims had not been enough to change longstanding social and legal habits. In 1987 the National Organization for Women and twenty-five other groups reported that gender bias against women litigants was still pervasive in courtrooms. As a result, women's testimony was accorded less credibility by judges and attorneys. Also, defense attorneys continued to introduce evidence that the shield laws were designed to bar. They could succeed if the evidence was introduced creatively, chiefly because state laws left judges wide discretion and unclear direction on what to admit as evidence. While seeking to tighten the admission of evidence in general, some shield law proponents wanted the laws strengthened to exclude even more kinds of evidence, such as the type of clothing a victim was wearing at the time of an assault.

In addition to such obstacles, various exceptions weakened rape shield laws. In particular, they provided little or no protection if the victim knew her assailant. Most state statutes allowed the admission of evidence about a past sexual relationship between the accuser and the defendant, and therefore defense attorneys often attempted to persuade juries that there had been such a relationship. Behavior by a woman that was even slightly indicative of a past sexual relationship with her assailant would work against her at trial.

By the 1990s a backlash against the laws developed. Defense attorneys, law professors, and civil liberties activists maintained that the laws were unfair to criminal defendants. They had two main arguments: restrictions on the admission of evidence undermined the defense attorney's goal of providing the best defense, and more significantly, such restrictions deprived the defendant of his Sixth Amendment right to a full defense, including confronting his accuser and presenting witnesses in his favor. Many opponents of shield laws acknowledged that women face traditional obstacles in rape prosecutions but saw the laws as a poor remedy if they denied defendants due process and sent the innocent to jail.

Among leading opponents of shield laws was alan m. dershowitz, the celebrated Harvard law professor and criminal appellate lawyer. Dershowitz unsuccessfully appealed the 1991 rape conviction of former boxing champion Mike Tyson to the U.S. Supreme Court, which refused to hear the case. Dershowitz argued that the trial court had unconstitutionally barred admission of evidence that would have acquitted Tyson: allegations that his accuser, a nineteen-year-old woman, had previously falsely accused another man of rape to avoid angering her father about her sexual activity. Because such evidence related to the victim's past sexual history, it was ruled inadmissible. In the view of Dershowitz and other opponents, such evidence should be allowed because it can reveal an accuser's motive to lie about consensual sex with a defendant. Frustrating these critics is the fact that appellate courts have consistently upheld shield laws, despite finding that some trial courts have applied the laws unconstitutionally.

From early enthusiasm to increasing skepticism, rape shield laws have endured a difficult quarter century since their passage. Their intention was to remove barriers that prevented women from reporting rape and winning convictions. Both proponents and opponents believe reform is needed, yet they disagree on what form it should take. Proponents want to strengthen shield laws to increase protections for women. But opponents counter that the laws are already strongly biased against defendants, depriving them of fundamental liberties.

Cross-references

Dershowitz, Alan Morton; Due Process of Law; Sixth Amendment.

Rape or sexual assault statutes carefully define the type of contact that constitutes rape. In Hawaii, for example, the term sexual penetration is defined as "vaginal intercourse, anal intercourse, fellatio, cunnilingus, analingus, deviate sexual intercourse, or any intrusion of any part of a person's body or of any object into the genital or anal opening of another person's body … however slight." Sexual contact is "any touching of the sexual or other intimate parts of a person … or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts" (Haw. Rev. Stat. § 707-700 [1996]).

Most states punish lesser sexual intrusions with statutes on Sexual Abuse. Like sexual assault statutes, sexual abuse statutes are divided into degrees based on the nature of the contact. Sexual abuse consists of nonconsensual sexual contact with another person. Lack of consent is present if the victim is a minor or physically helpless or if the victim was forcibly compelled to consent to the contact. A person convicted of sexual abuse may be fined and sentenced to a term in jail or prison. Because the crime does not involve penetration, the punishment for sexual abuse is less than that authorized for persons convicted of sexual assault.

A few states have eliminated the requirement that a competent adult rape victim physically resist the attacker. Physical resistance in some rape situations presents a greater danger to the victim. The states that have eliminated the physical requirement have found it to be unfair to require physical resistance on the part of the victim if such resistance risks greater injury. In Michigan, for example, force or coercion "includes but is not limited to" several situations, including where the actor coerces the victim through threats of force or violence and the victim believes that the actor can carry out the threats and where the actor physically overcomes the victim through the actual application of physical force (Mich. Comp. Laws Ann. § 750.520a [West 1996]). Nowhere in Michigan's rape statutes is consent based on an analysis of the victim's physical resistance.

The states that have not eliminated physical resistance as a test for lack of consent have declined to do so for fear of convicting an adult who has sex with another adult without the knowledge that he or she is not consenting. Nevertheless, even in a state that has not eliminated the physical resistance requirement for competent adults, if the victim says "No" or otherwise verbally indicates lack of consent, the perpetrator still may be convicted of rape. This point reflects the fact that prosecutors have argued, and appeals courts have agreed, that some amount of force, no matter how slight, should be sufficient to fulfill the forcible compulsion element. The sexual penetration of a competent adult, for example, may be enough force to meet a forcible compulsion requirement, if the victim indicated a lack of consent.

Most states have so-called rape Shield Laws. These laws restrict or prohibit the use of evidence respecting the sexual history of rape victims and the victims of other sexual offenses. Before the enactment of rape shield laws in the 1970s and 1980s, rape trials often focused on the chastity of the victim to determine whether the victim was actually raped. Rape shield laws keep the focus of a rape prosecution on the actions of the defendant rather than the prior actions of the alleged victim.

Further readings

Bachman, Ronet, and Raymond Paternoster. 1993. "A Contemporary Look at the Effects of Rape Law Reform: How Far Have We Really Come?" Journal of Criminal Law and Criminology 84 (fall).

Bopst, Christopher. 1998. "Rape Shield Laws and Prior False Accusations of Rape: The Need for Meaningful Legislative Reform." Journal of Legislation 24 (winter).

Brownmiller, Susan. 1975. Against Our Will: Men, Women, and Rape. New York: Simon & Schuster.

Morgan, Jack M. 1993. "Rape Shields, Criminal Discovery Rules, and the Price We Pay in Pursuit of the Truth." Utah Law Review (spring).

Reddington, Frances P., and Betsy Wright Kreisel, eds. 2003. Sexual Assault: The Victims, the Perpetrators, and the Criminal Justice System. Durham, N.C.: Carolina Academic Press.

Scalo, Rosemary J. 1995. "What Does 'No' Mean in Pennsylvania?—The Pennsylvania Supreme Court's Interpretation of Rape and the Effectiveness of the Legislature's Response." Villanova Law Review 40 (January).

Taslitz, Andrew E. 1999. Rape and the Culture of the Courtroom. New York: New York Univ. Press.

Thornhill, Randy, and Craig T. Palmer. 2000. A Natural History of Rape: Biological Bases of Sexual Coercion. Boston: MIT.

Tilley, Cristina Carmody. 2002. "A Feminist Repudiation of the Rape Shield Laws." Drake Law Review 51 (October).

Wallach, Shawn J. 1997. "Rape Shield Laws: Protecting the Victim at the Expense of the Defendant's Constitutional Rights." New York Law School Journal of Human Rights 97 (winter).

Cross-references

Assault; Child Abuse; Coercion; Domestic Violence; Feminist Jurisprudence; Husband and Wife; Statutory Rape.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.