Rape (law)

I

Introduction

Rape (law), sexual intercourse against a person’s will. Most experts believe the primary cause of rape is an aggressive desire to dominate the victim rather than an attempt to achieve sexual fulfillment. They consider rape an act of violence rather than principally a sexual encounter.

In the United States, rape is the most serious form of sexual assault punishable by law, but the definition of what constitutes rape varies from state to state. In all states, if a man forcibly subjects a woman who is not his wife to sexual intercourse against her will, he has committed the crime of rape. Recently, an increasing number of states have extended the definition of rape to include certain nonconsensual incidents of intercourse—even if force was not involved—and the rape of one’s spouse. In other states, rape remains narrowly defined as forcible sexual intercourse, but separate statutes address other forms of sexual assault, including nonconsensual (but unforced) sexual intercourse and unwanted sexual activity other than intercourse.

Many other countries also provide legal redress for women who are raped. However, some countries expect that women will be protected by sexual taboos (social prohibitions) rather than by criminal law. National military codes and international agreements such as the Geneva Convention (1949) prohibit rape by soldiers during times of war or civil conflict. However, in some instances military leaders have actually tolerated and even encouraged rape, either as a “reward” for soldiers or as part of a campaign of terror. Recently, human rights organizations have sought to protect women around the world from sexual violence and to hold those who victimize women, even during wartime, accountable.

II

Legal History of Rape

Laws defining and setting punishments for rape have varied enormously among different cultures and during different time periods. Throughout history, rape laws have illustrated a culture’s social and political attitudes about sex and gender.

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A

In Ancient Societies

In some ancient societies, men obtained wives through the practice of bride capture. In this custom, a man would kidnap a woman and force her to have sex, and then he would marry her. In these societies, what we would now call rape was socially acceptable, especially in times of war. In some cases bride capture was celebrated as heroic. For example, Romulus, the legendary founder of Rome, is credited with populating that city by capturing the women from a neighboring group of people known as the Sabines.

Some ancient societies considered rape a punishable offense. However, many of these societies punished the woman raped, as well as the rapist. For instance, under the ancient Babylonian Code of Hammurabi, a married woman who was raped was considered to have committed adultery. The law required that the woman and her rapist be bound and thrown in a river. The woman’s husband had the option of rescuing her or allowing her to drown. Similarly, ancient Hebrew law required that a married woman be stoned to death if she was raped.

In some ancient societies women were treated as a form of property and rape was defined as an offense against the property owner—the woman’s father or husband—not against the woman herself. For example, the Old Testament book of Deuteronomy, which delineates ancient Hebrew law, provides that if an unmarried virgin is raped the offender must pay the woman’s father 50 shekels and marry the woman. This law reflects the belief that a rapist could atone for his crime by marrying his victim. Such laws indicate that the society did not view the injury done to the woman as the essence of the offense of rape.

B

English Common Law

During the 12th and 13th centuries, an elaborate system of law based on judicial decisions, known as the common law, developed in England. The common law made rape a crime and provided for punishment of the rapist (but not of the victim). Rape was defined as sexual penetration of a woman forcibly and against her will. However, because the common law treated wives as the property of their husbands, a woman’s husband could not be found guilty of raping her, regardless of whether he used force against her to obtain sex. As a result of the wedding contract, wives could not legally refuse to have sex. Therefore, the law considered marital rape an impossibility.

In addition to creating complete immunity for husbands, English law also contained a number of legal and procedural requirements that made the prosecution of rape difficult. Under the utmost resistance doctrine, a man could be found guilty of rape only if his victim could demonstrate that she had physically attempted to fight off the rape but had been overpowered. A woman who was not physically bruised had little hope of proving a case of rape. If a woman did not promptly complain of a rape, under the fresh complaint rule her case could not be heard. The fresh complaint rule was based on the theory that a delayed report of rape was more likely to be fabricated.

Both the utmost resistance doctrine and the fresh complaint rule were based on assumptions that reflected the status of women in society. These doctrines were explicitly designed to protect men from false accusations of rape, indicating that English society placed more value on preventing false accusations than on protecting women from actual rapes. Legal decisions applying these doctrines assumed that women were likely to fabricate rape accusations, either because they were ashamed at having consented to sexual intercourse, because they had been rejected by their lover and wanted revenge, or because they had fantasized the rape.

Under English common law, certain rules of evidence also helped men defend themselves against charges of rape. Evidentiary rules governed what information was available to the jury during a trial, as well as the weight the jury should assign to the information. Special rules made it difficult to achieve convictions and made the trial an ordeal for the victim. Under these rules, a woman who reported a rape could expect to be questioned in great detail about her sex life. For example, the victim could be extensively cross-examined by the accused rapist’s attorney to show that (1) she had consented to sexual intercourse with the defendant (accused rapist) on that or another occasion, (2) she had consented to sexual intercourse with another man or men, or (3) she did not have a good reputation for chastity.

Although it was difficult to obtain a conviction under the common law, the punishment for rape was severe when prosecution was successful. During most eras, English law treated rape as a capital offense—that is, a crime punishable by death. See Capital Punishment.

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