Rape, Autonomy, and Consent

Abstract

Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law. Cambridge, MA: Harvard University Press, 1998. Pp. ix + 318. $27.95 cloth; $16.95 paper, 2000. I. Beginning in the early 1970s, feminist critics of American rape law developed a powerful case showing that many victims of rape are violated twice: first by an assailant, second by the law. Demonstrating the deeply patriarchal biases in both the common law and the statutes governing rape and sexual assault, these commentators, scholars, and reformers identified gross and undeniable moral wrongs in the legal standards determining when rape occurs; that is, what counts as rape, the rules (especially evidentiary rules) governing criminal proceedings in rape cases, and the attitudes toward and practices affecting rape victims.1 In the world of rape, the critics showed, these interrelated post-- rape wrongs commonly begin with the insensitive, insulting, and often humiliating interrogations of police disinclined to find real rape in the reports of any but the most battered of victims. Additional wrongs occur at the hands of callous, abusive, or simply uninterested attorneys, including both prosecutors unwilling to pursue difficult cases (or quick to offer pleas to significantly reduced, often non-rape, charges) and defense attorneys who employ strategies designed to impugn the character of victims, thereby undermining their credibility as witnesses in criminal proceedings. Finally, there are the moral wrongs of unjust acquittals or, perhaps worse, guilty verdicts reversed by appellate courts finding that whatever sort of was visited upon the victim, it was not the grave legal of rape. There would seem to be little question that nearly 30 years of extensive scrutiny, sustained criticism, and persistent activism have resulted in developments that are significant, positive, and, at least arguably, far-reaching. Regarding statutory reform, for example, the crime of rape no longer requires that victims exercise extreme resistance (resistance to the utmost) against assailants employing physical force (or the credible threat thereof). Now, resistance need only be reasonable, and in some states nonconsent to sex can be established in the absence of any physical resistance from a fully conscious, mentally competent adult victim (see Kadish & Schulhofer 1995:339, 352).2 Archaic and bizarre rules of evidence requiring independent corroboration of police testimony of battery or victim testimony of penetration-- rules wholly without contemporary analogues in the proceedings governing other criminal offenses-have been eliminated. In addition, serious limitations are now commonly placed on what can and cannot be asked of victims during trial (so-called rape-shield laws). Courts have far less tolerance of defense attempts to prove consent to intercourse via accusations or suggestions that a rape victim is not really a rape victim (she is somehow a witting accomplice) if there are any hints of promiscuity in her sexual history, or if she has made the wrong choices regarding (or even has the wrong attitudes about) sex, monogamy, cohabitation, and so on.3 As a result of these and other changes in the law-including statutory distinctions among different degrees of rape and sexual assault, with attending differences in the severity of penalties-- the burdens placed on prosecutors have been lessened. Furthermore, the range of prosecutable cases (i.e., cases where police and prosecutors take the likelihood of conviction to be high) has increased. Indeed, substantive statutory reforms have had a direct effect on the successful prosecution of rape cases, with arrests and convictions now occurring in cases that 40 years ago would have ended as they began: with a humiliating police interview (see Kadish & Schulhofer 1995:362, nts. 7-11).4 In addition, and worth emphasizing, are other kinds of meaningful developments that reformers know to be indispensable for any enduring change in the actual implementation of rape law. …