The Complexity and Evolution of Sex Crime Laws- The Complexity and Evolution of Sex Crime Laws Rape and sexual assault laws can be complex and confusing. Terminology is confusing because terms such as rape, sexual abuse, sexual assault, and others have different meanings in different jurisdictions; significantly, even the term “consent” is defined differently in each state. Across the states, sex crimes are named and defined differently and range from sexual penetration to acts of sexual violence that do not involve penetration, such as sexual contact and exposure. In some states, special terminology has been applied to refer to the sexual penetration of men and anal penetration of women, including sodomy and deviate sexual intercourse. There is often significant disparity between the legal definition of crimes and the common understandings of researchers or lay people about what conduct is encompassed in a particular sex crime.
More than ten years ago, the WLP encountered this disconnect with respect to the term “rape” when it began working to improve the response of the Philadelphia Police Department (PPD) to rape and other sexual offenses.3 In reviewing data on the incidence of rape in Philadelphia, the WLP learned that the PPD collected data on rape using the FBI’s definition of rape in the UCR which only included forceful penile penetration of a woman’s vagina by a man. The WLP was using the Pennsylvania Crimes Code definitions which covered vaginal and anal penetration by a body part or object and oral penetration by a sex organ of either a man or a woman. Subsequent research by the WLP showed that the UCR had not updated its definition of rape since 1929.
The UCR definition thus did not reflect major changes in state laws or the public’s understanding of rape and consequently misled the public about the true incidence of rape. Thereafter, the WLP commenced a campaign to expand the UCR definition. In December, 2011, the FBI approved an expansion of the UCR definition of rape to include: penetration, of the anus and vagina or with any body part or object, no matter how slight, or without the consent of the victim the oral penetration by a sex organ of another person. The UCR definition of rape is now consistent with the trend in state law recognizing that rape includes penetration without consent and without force (other than the act of penetration itself). Throughout Part I of this paper, the authors use “rape” consistent with the new FBI definition, which includes penetration of any orifice without consent and regardless of gender.
Context of Rape Jurisprudence- The complexity of sex crime laws derives from a historical background of bias against women. The legal history of rape is particularly ignominious. Under English common law―from which our laws developed―rape was a crime against property, not person. A woman’s reproductive capacity, in the form of her chastity, was considered property and was essential to establishing patriarchal inheritance rights. A woman’s sexuality was owned by her father and transferred to the man who became her husband. Rape laws protected the economic interests of men; therefore, rape was originally considered the theft of this property. The bodily integrity of the woman was irrelevant.
The consequences of the underpinnings of rape law were that unmarried women could only be considered to have been raped if they were virgins; and rape of married women by their spouses was not a crime because the law presumed a broad notion of consent to all of a wife’s sexual activity with her husband through her wedding vows. Under these theories, men could not be raped, rape of orifices other than the vagina was not legally recognized, and rape of non‐virginal women was not a crime. As incorporated in American jurisprudence, the basic elements of rape were generally: carnal knowledge penile‐female penetration, use of force beyond the rape itself, and “against her will”. In order to establish that the act was against the will of the woman, it was necessary to establish that force was used, and to establish force, it was necessary that how much a woman resisted.
This historical view of rape and its categorization as a property crime also perpetuated the belief that women lie about being raped. Sex crime statutes were enacted that incorporated the historic goal of protecting male interests and led to numerous procedural anomalies unique to rape. These included: requiring prompt complaint to law enforcement; requiring the corroboration of the victim’s testimony by independent testimony and/or evidence of serious physical injury; allowing information regarding the victim’s past sexual history and character to be admitted into evidence; and permitting cautionary instructions which impugned the victim’s credibility to juries. These rules and requirements, imposed only in rape and sexual assault cases, severely disadvantaged and stigmatized rape complainants and rendered a successful prosecution extraordinarily difficult.
The legal system’s hostile treatment of rape cases and rape victims was unique and in marked contrast to its response to other assault crimes. With respect to rape, the legal system emphasized the victim’s character, behavior, and words in order to ascertain whether the victim consented. For other assault crimes, however, the legal system focuses only on the actions of the accused to establish criminal activity. The Model Penal Code (MPC), which was drafted by the American Law Institute (ALI) with the intent of providing legislatures with the best thinking on crimes code provisions, perpetuated many of these historical sex crime provisions.
Written in 1962, the MPC defines rape as “sexual intercourse with a female not his wife” by force or threat of severe harm. Under the MPC’s terms, rape is not a felony of the first degree if there is no serious bodily harm or if the victim was a voluntary social companion and had previously permitted “sexual liberties.” The MPC includes the long outdated requirements of resistance, reporting of the sex crime to the police within three months, and corroboration of a victim’s testimony as well as age‐related provisions that are inconsistent with contemporary understanding of adolescent sexual abuse. Sweeping sex crime law reform began in the 1970s.
Feminists rejected the notion that women are the property of men without independent legal status or rights and demanded changes in the laws. These trends demonstrate the growing understanding that unwanted and un-consented to bodily invasion is the core wrong that sex crimes laws must address. The FBI’s broadening of the UCR definition of rape to include penetration without consent and without force reflects these trends. Updating the MPC sex crime provisions is also under serious consideration. Additional law reform is needed. Vestiges of archaic requirements remain in some laws and hamper prosecution of rape. All jurisdictions retain a crime of penetration with force, but some still do not recognize rape without force and without consent.
Some jurisdictions allow consideration of promptness of complaint, resistance, and physical injury for some purposes, such as determining the credibility of the victim. While marital rape is now a crime in all jurisdictions, differences in treatment persist with regard to both rape of spouses and intimate partners. In addition, consideration of prior sexual history with the accused is allowed in some jurisdictions. Such provisions reflect the persistent but erroneous notion that rape is about a sexual relationship and not about an unwanted, non-consensual bodily invasion. These provisions and erroneous beliefs about victims and about the nature of rape distract lawmakers from the real harm that criminal law must address—the invasion of bodily integrity—and the dynamics of rape that must be recognized by the law. Rape law is not about regulating normative sexual relations but about regulating crime.