HOUSE_OVERSIGHT_017317.jpg

4.2.12
WC: 191694

Chapter 14: The changing politics of rape: From “no” means “maybe,” to “maybe” means “no.”

No legal concept has undergone a more dramatic change over the course of my legal career than the crime of rape. When I started to practice, there were enormous barriers to the successful prosecution of rapists. The testimony of the alleged victim had to be corroborated by external evidence, unlike other crimes where the testimony of the victim is sufficient. The alleged victim could be cross-examined about her entire sexual history, thus discouraging rape victims from coming forward. A husband could not be convicted of raping his wife, no matter how much force he used, because by law, “the husband and wife are one,” and “he is the one.” Under this bizarre sexist metaphysic, a husband was deemed “incapable of raping himself.” Juries were reluctant to convict “upstanding” young men who were accused of raping "loose" women (often defined as unmarried non virgins). Moreover, being “dressed for sex” was considered a form of consent by some courts, and prostitutes could not be raped since they were in the “business” of consenting. In some states, lack of consent alone wasn’t enough to establish rape; the victim had to "resist" to the “utmost” even in the face of deadly threats. 76 Some commentators even suggested that it was physically impossible for a non-consenting woman to be raped. Most importantly, date rape wasn't even considered a crime. Instead it was deemed a manifestation of macho entitlement among certain groups, such as some college fraternities, soldiers, gangs and athletic teams. Within some such groups if one “brother” was accused of raping a woman, all the other brothers would say that they too had sex with the complainant.

The upshot was that many predatory males got away with rape either because victims were unlikely to complain, prosecutors were reluctant to bring charges, jurors were eager to acquit or appellate courts were quick to throw out convictions.

This male-centered attitude toward rape, and the special rules reflected by that attitude, go back millennia in time. The Bible, which includes a prohibition against coveting one’s neighbor’s wife in the Ten Commandments, does not explicitly prohibit rape. In the Bible, there are permissible and impermissible sexual encounters, depending on the status of the man and woman. A married woman is prohibited from having sex with anyone but her husband, while a married man is permitted to have sex with any unmarried or unspoken for woman. If sex is permitted, it may be accomplished by force. If it is prohibited, it may not be engaged in even if both parties consent. If a man rapes an unmarried girl who is still in her father’s care, his “punishment” is to pay the father a specified amount for damaging his “property,” and he must marry her and may not ever divorce her. Who is punished more under this regime, the perpetrator or the victim? And who is the “victim,” the girl or her father? Similar rules prevailed in other religions and other cultures during Biblical times and for centuries thereafter.

The common law attitude, which governed American courts from the beginning of our history, was summarized by British Lord Chief Justice Matthew Hale, who cautioned that rape was a charge “easily to be made and hard to be proved, and harder to be defended by the party accused, tho’ never so innocent.”

76 One court put it this way: “if the carnal knowledge was with the consent of the woman, no matter how tardily given, or how much force had therefore been employed, it is no rape.” Reynolds v. Nebraska, 27 Neb. 90 (1889).

230

HOUSE_OVERSIGHT_017317