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Rape 3 - National Developments in Rape Reform Legislation

NCJ Number
Women's Rights Law Reporter Volume: 6 Issue: 3 Dated: (Spring 1980) Pages: 170-213
L Bienen
Date Published
44 pages
This article analyzes changes in rape reform laws throughout the United States since 1976, with particular attention to the consent defense, the spousal exception, statutory age, and evidence statutes.
Every State has considered and most have now passed some form of rape reform legislation, usually as a result of lobbying efforts by coalitions of feminists and law-and-order groups. Rape reform laws first focused on removing or restricting the definition of consent that had developed in American case law, whereby a court could use prior sexual history and personal characteristics to decide that a female had agreed to sexual intercourse under circumstances of force and degradation. Legal problems involved in eliminating the sexist traditions surrounding the consent concept are examined using examples from the Michigan and New Jersey statutes. American legislatures followed the English tradition in the nineteenth century by establishing that a man could not be found guilty of raping his wife. Attempts to remove the spousal exception along the lines suggested by the Model Penal Code are reviewed, as are efforts to define the exclusion in terms of cohabitation rather than legal marriage. A history of statutory rape laws in the United States concludes that it was almost impossible to prove the forcible rape of a young girl prior to the reform legislation. Problems encountered by reformers in formulating laws which decriminalized consensual relations among teenagers while affording protection to minors from sexual assault or exploitation are discussed. A review of approaches adopted by different States to revise their rules regarding evidence of a rape victim's prior sexual conduct is followed by an evaluation of these new statutes' effects on the criminal justice system. Florida's experiences under its revised 1975 statute are presented to demonstrate that these laws often fail to address the realities of the judicial system and do not accomplish their stated objectives. Finally, the history of rape reform legislation in New Jersey is traced, and the impact of revised laws on popular attitudes, judicial processes, and victim services is assessed. Over 230 footnotes are included.