NCJ Number
73706
Journal
Colorado Law Review Volume: 49 Issue: 2 Dated: (Winter 1978) Pages: 185-204
Date Published
1978
Length
20 pages
Annotation
After describing the historical development of rape laws and the social attitudes toward morality which influenced them, the article surveys current reforms in State rape statutes.
Abstract
Traditional rape laws with their emphasis on force, absence of consent, and vaginal penetration, reflected a dual standard of morality which valued female chastity and assumed male control over women. Since 1974, a new trend in rape statutes has emerged to accommodate a changing view of women in society. Historically, rape victims have had to prove their nonconsent to the sexual act, and rape has been narrowly defined as only penile-vaginal assault. Rape trials have included a particular set of evidentiary rules which required the victim's statement to be corroborated, permitted admission of evidence regarding the victim's prior sexual conduct, and allowed special jury instructions. Reform legislation should be evaluated according to its success in protecting the privacy of persons' rights over their own bodies. Some States, such as Texas and Kentucky, have merely modernized the language of their rape statutes with little substantive change. Genuine reforms implemented in other States emphasize the acts of the accused rather than the victim's character and abolish consent as an element of rape or redefine it to exclude 'assumption of risk.' Some statutes have adopted a stepped approach to sexual contact which reduces the significance of chastity and renders the law sex-neutral. Many States have repealed or revised their special evidentiary rules for rape trials to protect victims from invasions of privacy and sexual discrimination. Unfortunately, several States with general statutes excluding prior sexual history do not permit exclusion on the basis of prejudice. Carefully drafted statutory standards which state exceptions to exclusionary statutes are the surest means of actually limiting evidence of prior sexual history. Examples of various court rulings on admissibility of a victim's prior sexual conduct are provided. All procedural and substantive reforms aim toward the creation of a sex-neutral crime for which the law provides neither special sex-based benefits or disadvantages to witnesses or defendants. The paper contains 94 footnotes.