Don't Roll Back the Progress on Legal Protections for Rape and Abortion


Societies that have no respect for the bodily integrity and personal autonomy of women have in common permissive laws about rape and restrictive laws about abortion. It should come as no surprise, then, that an ardent opponent of abortion, U.S. Rep. Chris Smith (R-NJ), on February 1, 2011, attempted to further narrow the already-limited definition of rape used in the Hyde Amendment (which constrains the use of federal funds for abortion) by restricting it to “forcible” rape.

Although an immediate national outcry by women's groups caused Smith to remove the word the next day, the attempt to codify such a limitation demonstrates the effort of some lawmakers in this country to roll back the progress towards equality that women in American have achieved over the last several decades.

Rape has an ignominious legal history. 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 the property and was essential to establish patriarchal inheritance rights.

A woman's sexuality was owned by her father and transferred to the husband as part of dowry. Rape was the theft of this property, which was owned by men. The bodily integrity of the woman was irrelevant. So, an unmarried woman could only be considered to have been raped if she were a virgin. Once raped, she became worthless.

A married woman could only be raped by someone other than her husband. Her husband was entitled to sexual access to her whenever he wanted. Enslaved women had no rights. Under these views, of course, men could not be raped and penetration of other orifices was irrelevant. Rape laws protected the economic interests of men.

The traditional legal consideration of rape required three essential elements: carnal knowledge (vaginal-penile penetration), force, 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 necessary, and to show how much a woman resisted. Resisted “to the utmost” was the standard. Unwanted sexual penetration was not deemed to be force enough; additional injury was necessary.

Independent corroboration was also required. The victim's word alone was not credible; her past sexual history and character were allowed to be introduced, and juries were routinely warned that she might be lying. As a result, successful prosecutions rarely occurred (except in the cases of guiltless African American men whose “prosecutions” took the form of lynching).

This view of rape is in stark contrast to other crimes of assault, where bodily integrity is foundational, and “against one's will” is assumed. So, for example, an assault such as a punch is force enough; there is no duty to avoid being punched or to keep the assailant from landing the punch, and a history of being punched has no relevance.

It was not until about 40 years ago, when feminists raised their voices, that sweeping reforms to the laws about rape began to bring them more in line with other crimes of assault.

As a result, states no longer require resistance to prove rape, juries are no longer warned about a victim's credibility, and rape shield laws prohibit the introduction of a victim's past history (unless it is with the assailant), husbands are no longer immune from prosecution.

States have revised their criminal codes to recognize all forms of non-consensual sexual penetration as serious criminal conduct regardless of gender, relationship or mode of penetration. Some states, such as New Jersey, have removed the term “rape” completely from their criminal code and replaced it with “sexual assault.” (Representative Smith was obviously unfamiliar with this advance in the law in his own state.)

But myths and stereotypes about rape continue to influence our culture and institutions, and apparently some of our elected officials.

The narrow view that penetration of one's body against one's will is not a form of force, unfortunately, continues to be propagated even by the FBI. The FBI's Uniform Crime Code uses the archaic definition of rape. The FBI's Uniform Crime Report gathers and publishes crime data, and it is the country's major source of crime data.

But the data it releases each year grossly mislead the public about the prevalence of sex crimes, because the FBI continues to count rape only as “the carnal knowledge of a female, forcibly and against her will.” It thus perpetuates the outdated notion that unwanted sexual penetration–of any person, female or male, of any age, of any orifice by any object–is not rape.

Police departments throughout the country that participate in the UCR system must report data following this definition. Not only is the public misled, but the UCR's definition becomes the standard of “real” rape and negatively influences the attitudes of law enforcement toward the many rape victims whose experiences do not fit within this narrow, antiquated, stereotypical view of rape.

When a sex crime is considered less serious, it is unlikely to receive the full range of police resources and attention it deserves.

In 2001, the Women's Law Project, acting on behalf of 90 state-based and national women's organizations, asked the FBI to change its definition. We did so based on work we were doing with the Philadelphia Police Department in the aftermath of exposure by the Philadelphia Inquirer that sex crimes were not being investigated.

Since that time, journalists in other cities have reported on inadequate police response to sex crimes. So much so, that the U.S. Senate Judiciary Subcommittee on Crime and Drugs held a public hearing last September on the chronic and systemic failure of police to investigate rape and sex crimes. The Women's Law Project presented testimony about the FBI's definition and its impact, and informed the Senate that the FBI has yet to respond to the 2001 letter.

Were Rep. Smith and his colleagues who tried to add “forcible” to the definition of rape in the Hyde amendment reflecting ongoing bias, ignorance and stereotypes about rape? Were they unaware of the changes that have taken place over the last 40 years? Or were they fearful and resentful of those changes, and testing the waters to see how willing the country is to turn back the clock on the progress that's been made addressing violence against women?as they have with abortion rights?

That the effort did not work this time does not mean it is off the agenda, particularly in light of the apparent retrenchment in police conduct in investigating rape and other sex crimes. It is why, as a starting point, the FBI has to change its definition to end the pernicious impact it continues to have.

Carol Tracy is the Executive Director of the Women's Law Project

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