There have been many reforms to the laws governing rape and sexual assault in recent decades. Prior to the 1970s, the definition of rape was quite narrow; the law only recognized an assault as rape in limited circumstances and restricted those who could be considered victims of rape. Further, evidentiary requirements placed a much higher burden on rape victims than other victims of crime. Unlike other crime victims, rape victims were required to corroborate their testimonies and their past sexual history was often introduced into evidence to rebut charges of rape. The issue of resistance was a dominant theme in rape cases with victims having the burden of proving not only that their attackers penetrated them forcibly and against their will, but also that they fought back sufficiently. The change from the pre-1970s rape statutes and the modern rape statutes that are in place today is largely due to feminists’ activism and urge for legislative change during the 1970s. Today, rape law has expanded its scope to include different sexual crimes and a broader definition of rape and recognizes that men can be raped. Most states have eliminated the corroboration and resistance requirements in exchange for a lack of consent, and rape shield laws have been enacted to protect victims from having their sexual history introduced in court unnecessarily.
An Evolution in Defining Rape and Sexual Assault
Prior to the 1970s, the definition of rape and its scope was rather constricted. The law only recognized a sexual assault as rape when there was some forced penetration of the vagina by the penis, and only assaults by a male perpetrator and a female victim were included within the legal definition of rape. Further, in pre-1970s rape laws, all states exempted a husband from being prosecuted for raping his wife. The popular belief was that a husband could not rape his wife, stemming from older laws classifying a wife as her husband’s property to do with as he wished.
To address the realities of assault victims, modern laws embrace a broader definition of rape. Today, rape is generally defined as sexual penetration by force without consent. Thus, unwanted anal penetration is also included within the definition of rape, and the law now recognizes rape by foreign objects besides the penis, such as bottles, baseball bats, and broomsticks. Further, sexual assault crimes have expanded to include sexual acts besides penetration, such as unwanted fondling, touching, or oral sex. In an attempt to remedy some of the widespread preconceptions and prejudices about rape, many states have also enacted new terminology that replaces rape with words such as sexual assault, sexual battery, or criminal sexual conduct.
Modern rape laws also now protect a wider spectrum of individuals. Today, perpetrators and victims of rape can be either gender, and the law recognizes that rape can occur between people of the same sex. The law in every state has changed to include spousal abuse as a crime. Similarly, state laws have removed the marital rape exception, meaning that rape laws apply regardless of whether the victim and the perpetrator are married or have been married before, though sometimes the standard of proving lack of consent is higher.
Prior to the 1970s, to prevail in a rape case, the law required that evidence be presented to corroborate (or substantiate) the female victim’s testimony about the alleged rape. The rationale was based on the widely held belief that women often falsely reported being raped as a form of retaliation against a man. Another rationale for the requirement was based on the belief that disproving a false charge in a rape case was more difficult than in other crimes. The corroboration requirement, however, proved to be a huge obstacle for many rape victims because rape often occurs in private, so obtaining corroborating evidence was often incredibly difficult. Many reformers and activists felt that this requirement was responsible for the low rate of rape convictions. Further, critics of the requirement considered it to be sexually discriminatory, arguing that the corroboration requirement only applied to rape cases, a crime largely committed against women, and not to other crimes such as assault and robbery where the victim’s word was held to be sufficient evidence for a conviction. In response to this overwhelming criticism, most states have eliminated the corroboration requirement.
In order for the intercourse to constitute rape, the law used to require that the perpetrator used some amount of physical force against the victim and that the victim resisted to the utmost through physical resistance or struggle. The degree of a woman’s resistance and the resultant injuries used to be the deciding factor as to whether a rape occurred. However, today the law has changed so it is no longer necessary that a perpetrator use physical force against the victim in order for the intercourse to constitute rape. In some states, the amount of force necessary to constitute rape is only the amount of force needed for the penis to enter the vagina (which essentially eliminates the force requirement). Under today’s rape statutes, the victim is not required to physically struggle or resist the unwanted sexual advances. Society has recognized that there are some situations in which a victim feels that by physically resisting or struggling with the perpetrator, she or he may put her- or himself in danger of death or serious bodily harm. The victim may feel so afraid of the perpetrator that she or he submits to the perpetrator’s will. Even though the perpetrator may not have used excessive force and the victim did not physically fight back, the assault would still constitute rape since the victim did not consent to the sexual act.
Under the law today, resistance by the victim and use of force by the perpetrator have become less important determining factors, and the issue of consent has become the primary focus of the law. In determining whether a rape has been committed, the question is now whether a reasonable person should have known that the victim was not consenting to the sexual act. Consent is defined as positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. The only real consent is established by asking for and discussing sexual contact prior to the act. Just because someone did not verbally say no does not mean that she or he automatically consented to the act. Furthermore, it is rape if the victim was incapacitated and thus unable to say no to the sexual act or resist the perpetrator’s advances. If the victim was incapacitated, she or he is not legally able to consent to the sexual act, so any act of sexual intercourse would be rape under the law.
Rape Shield Laws
Rape shield laws represent another area of reform. Historically, courts would admit into evidence the victim’s sexual past because it was deemed to be relevant in determining issues of consent and credibility. Courts believed that an “unchaste” woman would be more prone to consent to intercourse and that these women were more inclined to lie because of these experiences. Many victims felt embarrassed in revealing such personal information and reported feeling as if they themselves were on trial. As a result, victims were less likely to press charges in order to avoid the ordeal altogether. Even when a woman did press charges, once her sexual past was introduced into evidence, the perpetrator was often acquitted. Reformers sought to change this practice by criticizing the underlying rationale behind the requirement, arguing that there was no evidentiary basis to support the conclusion that a woman’s sexual past served as a probative link to her credibility or consent. In response, the U.S. Congress and nearly every state have enacted laws designed to restrict the admissibility of a victim’s sexual past as evidence. Today, there are very restrictive laws that prohibit the introduction of a victim’s sexual history except as constitutionally required or if the information is relevant in the interest of justice.
Many activists and reformers sought to change early rape and sexual assault laws in an effort to improve the treatment of victims in the criminal justice system while simultaneously working to dismantle myths and preconceived notions about how and why rape occurs. The hope was that better treatment would encourage reporting and would lead to more rape convictions. In response to overwhelming criticism, legislators enacted rape and sexual assault laws to better protect victims of sexual assault and hold perpetrators accountable. Research shows that as a result of rape law reform, society’s views on rape tend to be more refined and more sympathetic toward rape victims than ever before.