Violence against women, Part 3 - Rape in the U.S.

It is hard to imagine now, but rape used to be considered a crime against a man: the man to whom the female victim belonged. If a man’s wife or daughter were raped, it was a crime that reduced the value of his property. If you look at the early punishments for rape, you will see that some rapists were required to marry the deflowered daughter, so that her father could get his “bride-price.” In case of the rape of a wife, both the rapist and the wife would be put to death! The wife would be considered by the community as an adulteress. As antiquated and strange as viewing a man the true victim of rape seems, the legal system seemed to distrust the female victim well into more recent times. It was not all that long ago that rape required proof that the victim “resisted to the utmost” the sexual assault. Because most sexual violence against women is perpetrated without witnesses, the standard of “resisting to the utmost” required serious visible injuries to the victim. That does not always happen in a rape. I am not trained in any kind of martial arts or self defense and I suspect that most women are not either. How much resistance would be sufficient to meet the term "utmost?" How constant must have been that resistance to produce sufficient physical injuries? In many of the early cases, women also had to show that they resisted the entire duration of the assault, otherwise their resistance was too feeble to meet this standard. This was a particular problem with proving marital rape.

From a feminist view, the underlying notion that the woman needed to continually resist to the utmost, points to an assumption that a man has permission from any woman to have sex on demand, unless he tries and the woman affirmatively resists, and continues to do so relentlessly.
Back in 1974, when I was a college student, rape shield laws began to spring up on the legal landscape. These laws were enacted to encourage women who had been raped to report the crime. In concept, the "shield" was protection for women who were not completely “chaste” from having all their prior history come out in court placing them on trial, instead of the rapist. Rape shield laws did represent some progress, but despite this new set of laws to encourage women to report rape (by shielding them from having their sexual history discussed in the courtroom) rape shield laws did not create much of a shield as is discussed further below.

By the 80’s, feminist theory had serious critiques of rape laws. Catharine MacKinnon said that rape was part of the larger issue of female subordination. She focused on the power imbalance between men and women. She critized how rape law permitted a unwanted invasion of women's integrity by the legal definition of non-consent. Laws punishing rape did more to perpetuate male dominance by subordinating women. Laws were not really about punishing forceful sexual acts. Rape laws continued to legitimize male sexual aggression. Laws forced females to seek the protection of males and did little to prohibit coercive sex. [Although the] line between rape and intercourse commonly centers on some measure of the woman's will, [the] substantive reference point implicit in existing legal standards is the sexual normative level of force.

In her book, Real Rape, Susan Estrich argued that the purpose of rape laws should be to protect a woman’s autonomy and the integrity of her body. Even slight coercion is inconsistent with the notion of consent and the consent doctrine in law. They argued that force requirements in rape laws were too high a bar and failed to account for intimate partner rape or acquaintance rape. Estrich focused more on the criminal law context. She argued that by defining “real rape” as a violent rape by a dark and sinister knife-wielding stranger, it ignored a large category of women who are raped by someone they know. She said:

[A] man can also force a non-consenting woman to engage in sex without resort to actual violence. Power will do.

She also criticized the judicial response to subtle forms of coercion:

Where threats are inarticulate, [the courts] often tell us that no crime has taken place and that fault, if any is to be recognized, belongs with the woman.

As it relates to subtle forms of coercion, Dorothy Roberts noted how rape law fails to recognize the “implicit threat of violence”. Women may fear that men will turn violent even if no threat was made.

In most jurisdictions today, the key issue in rape is consent. Under the consent doctrine, the initial presumtion shifts so that men have to get permission first to have sex. Nevertheless, it is still a very difficult task to prove a rape. Juries are not very sympathetic toward rape victims; women are afraid to face their rapists. There are still major hurdles that victims of date-rape face in prosecuting their aggressors. When coercion is more subtle, rape prosecutions are extremely difficult.

Although the consent doctrine represents progress over the notion of utmost resistance, it has limited effect on the issue of sexual coercion by a victim’s acquaintances. These kind of rapes are still largely under-reported and unpunished. Because 25 states have rape shield laws that have legislative exceptions (such as prior sexual relations with the defendant or evidence offered to prove a reasonable “mistaken” belief that the victim consented) the shield has been ripped away from the victim, allowing her prior sexual conduct to be aired like so much dirty laundry in court. This has a chilling effect on women’s willingness to reprimand their rapists in a court of law. According to the Department of Justice, a whopping 63% of adult rapes are committed by prior spouses or boyfriends. Until rape shield laws really provide a sufficient shield, women will silently suffer the indignity and long-term trauma of rape by someone they know and trust.