TOWARD A NEW LAW ON RAPE

• NCJ Number: 66606
• Journal: Crime and Delinquency Volume: 26 Issue: 2 Dated: (APRIL 1980) Pages: 129-151
• Author(s): M D SCHWARTZ; T R CLEAR
• Date Published: 1980
• Length: 23 pages
• Corporate Author: National Council on Crime and Delinquency
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: EARLIER VERSION PRESENTED AT THE MEETINGS OF THE ACEDEMY OF CRIMINAL JUSTICE SCIENCES, MARCH 8, 1978

Annotation

RAPE LAW REFORM IS DISCUSSED, WITH EMPHASIS ON ENDING THE DIFFERENTIATION BETWEEN SEXUAL ASSAULT LAWS AND GENERAL ASSAULT LAWS AND ON ISSUES INVOLVED IN THIS APPROACH TO RAPE LAW REFORM.

Abstract

THE TWO MAIN PROBLEMS WITH CURRENT RAPE LAWS ARE EVIDENCED IN THE INSUFFICIENT NUMBERS OF CONVICTIONS AND THE CRIMINAL JUSTICE SYSTEM'S OPEN HOSTILITY TO RAPE VICTIMS. BOTH PROBLEMS ULTIMATELY REST ON HISTORICAL ATTITUDES TOWARD WOMEN. PSYCHIATRIC AND CRIMINOLOGICAL LITERATURE REFLECTS THESE ATTITUDES. SEVERAL APPROACHES HAVE BEEN SUGGESTED TO REMOVE THE RESULTING OBSTACLES TO PROSECUTION. NONSEXIST LEGISLATION COULD BE PRODUCED EITHER BY DEVELOPING A SEXUALLY NEUTRAL ASSAULT LAW, AS IN MICHIGAN, FLORIDA, AND SEVERAL OTHER STATES, OR BY INCORPORATING WHAT IS NOW CALLED RAPE INTO AN EXISTING ASSAULT LAW. THE LATTER APPROACH WOULD CHANGE THE FOCUS FROM THE VICTIM TO THE OFFENDER. SEX PENETRATION IN ITSELF COULD FULFILL THE DEFINITION OF SERIOUS PERSONAL INJURY IN THE ASSAULT LAW TO AVOID TRYING TO MEASURE DEGREES OF PSYCHOLOGICAL HARM RESULTING FROM SEXUAL ASSAULT. A RESULTING MATRIX OF TERMS WOULD INCLUDE HARASSMENT AND ASSAULT IN THE FOURTH, THIRD, SECOND, AND FIRST DEGREES. STATUTORY RAPE WOULD BE CONSIDERED AN ASSAULT IN THE FOURTH DEGREE. IT IS RECOMMENDED THAT THE LAW (1) REMOVE SEMANTICALLY CHARGED WORDS LIKE RAPE FROM THE LAW, (2) EMPHASIZE THAT RAPE IS A CRIME OF VIOLENCE; (3) INCLUDE SEVERAL GRADED OFFENSES; (4) STATE THAT RESISTANCE BY THE VICTIM IS NOT NECESSARY; (5) PERMIT HUSBANDS TO BE PROSECUTED FOR SEXUALLY ASSAULTING THEIR WIVES; (6) STATE THAT CORROBORATION IS NOT REQUIRED; (7) RELATE PENALTIES TO THE PENALTIES FOR THE OTHER FORMS OF ASSAULT; (8) LOWER THE AGE FOR ABSOLUTE STATUTORY RAPE TO 12; AND (9) PROVIDE FOR A SEPARATE HEARING ON THE RELEVANCE OF EVIDENCE ON THE VICTIM'S SEXUAL HISTORY. A RAPE SHIELD LAW WOULD PROBABLY BE CHALLENGED AS UNCONSTITUTIONAL. REFORM WILL BE EASIER TO ACCOMPLISH AS A MAJOR PACKAGE THAN AS A PIECEMEAL EFFORT. EXTENSIVE FOOTNOTES WHICH INCLUDE REFERENCES ARE INCLUDED. (CFW)