Monday, May 03, 2004

Rape Statutes, Physical Resistance and Power

Regular readers (and friends) know that the crime of rape is something of particular interest to me, not only in its incidence, but what rape statutes say about our society and how we view sexual relations and as a reflection of the power distribution in society between men and women. It goes without mention that our society has not always treated women fairly or equally. We have, at various times in our history, denied women the right to vote, the right to own property and other privileges of citizenship. However, over time society has progressed and women now enjoy a significantly more equal position in society.

Yet some rape statutes are still reminiscent of an earlier time, though the general trend has been a progressive one. Among the progress made is the elimination of the marital exception to rape and a husband is no longer free to take sex from his wife if she does not consent. Also, the Model Penal Code eliminates the requirement of violent force as an element of the crime. States such as Pennsylvania and California have gone further and allowed for what might be called emotional force to be sufficient for a finding of liability.

Still, in this late day, nearly one-half of all states continue to require a victim to physically resist the intercourse. (MPC does not require physical resistance and saying "no" is sufficient to negative the defense of consent.) In these states, a woman who is being raped must do something more than withold her consent verbally; she must either fight back or do some other act indicating physical resistance. (There is a debate in the rape literature whether fighting back imperils the victim more.) The concern of those who support the physical resistance requirement is that, absent such a requirement, it is difficult to ascertain consent and that the defendant may have believed that the victim was engaging in a consensual act. However, is it really all that difficult to abide by the notion that "no" in fact means "NO"?

To put the burden on the victim to take some affirmative action to defend herself goes against every notion of justice. We do not require victims of other violent crimes to fight back or to resist, so why do we feel it proper to have such a requirement here? (The one common place we do see affirmative duties is in the area of self defense where someone who is acting in self defense is often required to flee or attempt to flee before using deadly force to protect himself. Clearly, this is not analogous to rape.) Can you imagine if victims of battery were required to fight back or else their batterer could assume consent.

The logic is so egregiously lacking as to point to only one potential reason for this situation- continued protection of male power and privilege. By requiring a victim to use physical force to resist her rapist, these statutes continue a long history in the American rape law of protecting male sexual predators. Because some men are too ignorant to understand the meaning of words such as "no" and "stop" some state legislatures enact statutes that place an affirmative burden on the victim of the crime. Thus the person has been victimized twice- once by her attacker and once by the legislature.


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