It’s time to modernize our rape laws

All citizens would be better served if felony rape were changed from a general intent crime to one of criminal intent.

My suggested definition — to inflict physical and/or emotional damage on another person by forcing that person to engage in sexual act — is only a place to begin. Without a criminal intent, prosecutors cannot legally examine an alleged rapist’s mindset.

(This is a follow-up to my earlier piece about the problems surrounding the current legal definition of “rape.”)

Researchers such as David Lisak have been studying rape mentality for years, including a study of college students. Lisak’s 2002 paper, “Repeat Rape and Multiple Offending Among Undetected Rapists,” suggests that a small number of men may be responsible for a disproportionate number of rapes, rape defined to include threats and/or physical violence. This in turn suggests that rapists have a criminal intent. Lisak cites possible motivations: high levels of anger at women, the need to dominate women, hypermasculinity, lack of empathy and psychopathy and antisocial traits. These can also be applied to non-heterosexual rapes.

It’s time to stop speculating that all men are capable of rape, when research suggests otherwise. Most adults have been in a sexual situation in which we’ve asked our partners to stop altogether or stop doing a certain thing. A normative response is to stop. An abnormal response is to continue. A rape happens when force or threats are used by the rapist in order to continue. “Consent,” as victims know, is beside the point.

Victims don’t decide when crimes happen; criminals do.

Giving rape a criminal intent would allow prosecutors to examine the accused’s background, leveling the credibility issue. For example, in 2010, Yale fraternity pledges marched around campus shouting, “No means yes, yes means anal” — a slogan that suggests a need to dominate and intimidate others, as well as a lack of empathy. The fraternity called it a “joke.”

Under current law, if one of the fraternity members had been later accused of rape, participating in that group chant could not have been used as evidence against him. If rape had a criminal intent, it could. If you publicly joke about murder, even in general, and someone connected to you turns up dead, those statements, while not proof of the actual crime, are suspect as they go to motive. Oddly, free speech allows anyone to talk about committing a crime, but it doesn’t excuse you if you’re accused of a crime — unless the crime you’re accused of is rape.

While the above example helps victims, the use of criminal intent might also slow down accusations that stem mostly from misunderstanding. While women talk more openly now about feeling pressured to have sex with upper classmen or pleading partners (baby-you’re-so-beautiful-I-want-you), these regrets are a cultural problem, not a legal one. Unless the person you hooked up with threatened you to comply or used force, more than likely, you were not raped. Women have trouble being assertive. Men need to know that. Men aren’t stupid, and they can sense a partner’s discomfort. Rather than continue to plead, a man should directly ask a sexual partner if she or he would rather stop.

Using the criminal justice system to settle these gray areas does a disservice to people who have been raped using force and threats. Rape victims don’t suffer regrets only. They’re subject to post-traumatic stress disorder, fear and anxiety disorders, and feelings of worthlessness. A recent Washington Post article connects these problems with economic losses, such as tuition and wages. As far as rape disproportionately victimizes women while in college, the government has an obligation to conduct Title IX investigations to ensure equal access to education. (Of course, this does little to address men who have been raped.)

If colleges and universities want to use affirmative consent guidelines to help students better understand one another and prevent miscommunication, that’s fine. But deans and administrators should never attempt to resolve rape. The Higher Education Act requires postsecondary institutions to collect and make public crime statistics, so administrators have an obvious conflict of interest.

So why are we stuck with a justice system that treats rape as a crime of desire gone wrong?

Rape law has a distant origin in property crime. Until the mid 1800s, U.S. women were considered the “chattel” (property) of their male relatives or husbands; meaning they had no legal standing, nor a right to own property after marriage. Going further back, the property crime of rape amounted to the general “ruin” or impregnation of a person who belonged to another. So rape prosecution addressed the lost “value” of the victim to her owner, not to the victim herself. “Consent” was a method of determining whether the victim should be punished along with her rapist: was she innocent or guilty of having sex outside of marriage, etc.?

It’s time for rape law to catch up with the emancipation of women.


Jeneva Burroughs Stone is an essayist, poet, blogger of the rare & unknown, practical g/i nurse, interpreter of EOBs, queen of medical-necessity letters, unlicensed PT, knowledgeable wheelchair mechanic. She has a PhD in Renaissance literature with a focus on gender and sexuality, has taught high school and college students, and worked on Capitol Hill and as an editor in higher education policy.

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21 Responses to “It’s time to modernize our rape laws”

  1. omnia says:

    it is an amazing idea, great job

    http://tadawlat.net/

  2. caphillprof says:

    The issue is not rape per se but rather finding a way for asexual young people, primarily female, to become adult sexual people. That must happen first before we get to the issue of rape among adults. The law must continue to treat rape as a matter of nonconsent.

  3. J.M.Short says:

    All rape is criminal. I’m afraid the author is confusing general intent with specific intent.

  4. J.M.Short says:

    All states define their rape laws differently. Some use terms such as sexual assault or sexual battery rather than rape. Some will have language that is consistent with general intent, or specific intent, or neither.

  5. J.M.Short says:

    Rape is the act of penetrating the victim without consent. Violence is one means to do so. Refusing to acknowledge the victim’s objection is another. Every act of penetration requires force, and is therefore a physical crime against the victim.

  6. J.M.Short says:

    Rape is defined differently in every state. There is no common usage.

    In fact, the term describing the act also changes… rape, sexual assault, sexual battery, etc, are all the same thing. And the basic concept all “rape” (for lack of a better word) crimes have in common is that the offender breeches the victim’s “knowing consent.” in some way.

    Society often feels that only VIOLENT rape is rape…. not so. A person’s sexual sanctity can be vitiated by dope, intoxication, coercion, deceit, by being too young or mentally incapable of consent. ALL are forms of RAPE. They are, however, not all forms of VIOLENT rape.

    All forms of rape will leave the victim feeling defiled. Rape victims will be 13 times more likely to attempt suicide than non rape victims. 86% of rape cases never make their way to the Prosecutor’s desk because rape victims are revictimized by the reporting process.

    A new law, #3908, was filed on Nov 13th with the NJ Legislature making it a crime to defraud someone of sex. Please refer to #RapeByFraud for further information.

  7. ComradeRutherford says:

    What a crazy idea, John. Next thing you know, you’ll be insisting that the Drug Schedule at the FDA be based on science instead of the whims of the GOP!

    As to this quaint notion, “Until the mid 1800s, U.S. women were considered the “chattel” (property) of their male relatives or husbands…” the GOP is working tirelessly to return to those Glory Days of Yore, when America was Great and owning women and slaves was cool.

    When the GOP wins the White House in 2016 because the sellout Dems have yet again betrayed the voting base at every turn by trying to out-Republican each other, I’d say that the de-mancipation of women and non-whites will be no more than 4 years away…

  8. Hue-Man says:

    1. A similar case with an explanation why the victim didn’t flee:

    “The alleged victim in a bizarre case involving allegations of brutal and sustained assaults testified Monday he never fled his situation because he didn’t want to “be a sissy” and had “big dreams.””

    “Paxton, 31, was charged with aggravated and sexual assault and unlawful confinement after a gaunt, unconscious and mutilated man was dropped outside a Regina hospital in 2010.” http://news.nationalpost.com/2011/10/31/%E2%80%98all-i-wanted-was-to-get-beat-less%E2%80%99-alleged-torture-victim-tells-court/

    2. Xavier Dolan’s film “Tom à la ferme” explores similar male-dominating-male themes.

    “But Tom meets Francis, the brother of Tom’s deceased boyfriend, who is well aware of the nature of their relationship. Francis is a powerful farmer, violent and homophobic – a caricature of the Quebec redneck – who rapidly gains the upper hand on Tom, and by dint of physical and psychological threats, draws him into his lie for the sake of his mother and the honor his family.

    The film tackles the aborted mourning of a young man trapped in an ambiguous sadomasochistic relationship where Tom becomes strangely fascinated by what Francis subjects him to, in a form of Stockholm syndrome.” (My cleaned-up Google translation) http://fr.wikipedia.org/wiki/Tom_%C3%A0_la_ferme

    I’ve lived with stories of Stockholm syndrome for decades so can begin to understand how it might occur. I don’t know that I can extend the same reasoning to abusive power relationships where the victim isn’t physically confined. Quite clearly, this leads into a far more widespread issue – domestic violence.

  9. taikan says:

    Assuming that what the author meant to say was that she wanted to change the definition of rape to change it from a “general intent crime” to a “specific intent crime” (there being no such thing as a “criminal intent crime”), the language that she proposes would not accomplish that goal.

    In addition, use of the author’s proposed language would make it more difficult, not easier, to prosecute someone for rape than the current legal definition of rape. Not only that, but it would legalize having sex with an unconscious person without that person’s consent because there would be force involved.

  10. Shivas says:

    I think one of the scary things about rape now is that we have 50 shades of grey when it comes to what constitutes rape, and a single very severe punishment, incarceration for a considerable period of time along with loss of education and employment opportunities, and a lifelong stigma of being a rapist. It doesn’t matter whether the person climbed in a second story window and raped at knifepoint, or if a woman silently withdrew consent at some point during an otherwise mutual encounter, and the (alleged) rapist was honestly not aware of the change. The crime is the same and so is the punishment. This needs to be addressed.

  11. nicho says:

    I’m still not sure how you prove intent at all — criminal or otherwise. Just because I did X yesterday doesn’t mean I intend to do Y today. And, in fact, juries do not hear of an accused’s history — except under certain circumstances. But proving intent is very tricky. Obviously, if there is a clear-cut assault, then you have physical evidence. But in a lot of rape cases, you have victims who wanted to “make out,” but didn’t want to go past a certain point. It almost sounds like you’re saying that the victim has to resist to the point of being hurt, just so prosecutors can use her injuries prove intent. And as others pointed out, the perpetrator could always claim that the victim liked it rough.

    There was a case years back in Massachusetts, where a young (but legal) guy was in an S&M relationship with a “master.” The younger guy lived with him and let the master tie him up and whip him, etc. This went on for two years or so. They younger guy had the freedom to come and go, went to work every day for two years, visited his family. One day, the younger guy soured on the relationship, went to the police, and claimed he was raped.

    As it was a case involving gay sex, the cops were wild with joy. They arrested the master, searched his house, and even dug up his back yard with a backhoe, trying to see if there were bodies buried there. It was all very titillating. The newspapers had a field day with it. And the master was eventually convicted of rape and assault.

    Had this been a heterosexual case, the tenor of those times would have been in favor of the accused. he probably could have gotten away with claiming the victim wanted what she got.

  12. percysowner says:

    My problem is that this gives any rapist the ability to say he THOUGHT the victim wanted it. That she gave signs she wanted it. I’m old. I remember the man strangled a woman while having sex in the park and got away with not only murder, but also probably rape by saying she said she liked it rough. I have lived in a time where in order to prove rape a woman had to physically resist and having a gun held on her didn’t count because without bruises how could she prove he really had a gun? Making it all about the mindset of the perpetrator means he (usually a he) gets to explain he didn’t mean any harm so he gets to walk.

    Right now there is a societal belief that women lie about rape and that simply breathing in the neighborhood of a guy means she’s giving signals that she really wants sex. Rape will always have an emotional component because sex can be consensual. But making the criteria being only that the rapist intended to hurt the victim puts victims right back to having to prove they were physically coerced by showing physical harm because the rapist isn’t going to admit he threatened them in any way and rape victims are assumed to be lying. Besides, sex makes people feel good, any rapist can CLAIM that they were just trying to make the victim learn to enjoy her frigged self, or teach her promiscuous self what meaningful sex with wonderful him is.

  13. GarySFBCN says:

    I’m supportive of this, but I am ignorant about how rape cases are handled in the judicial system. A few questions:

    If criminalizing intent “would allow prosecutors to examine the accused’s background” would that also allow the defense to examine the victim’s background – that I assume is not allowed now?

    And I’m assuming that you are not considering including ‘statutory rape’ in ‘criminal intent’ category, correct?

    Also, are there unique mental/physical health situations, such as XYY syndrome, that require further nuance in your suggestion? I know that XYY is probably not the best example, but I think you understand my question.

  14. jenevastone says:

    I don’t understand what you’re talking about. Which UVA victim? Several were profiled in the article. I read the entire article and did not see a victim who had not been subject to either force or threat. They all were. Maybe you’re just thinking of the extremes of force and threat? The second you inhibit a person’s ability to leave a situation, you are applying force. A man on top of a woman who fails to move off when she starts to struggle is committing rape. If your partner even seems not to want something, it is YOUR responsibility to stop and ask whether he or she wants to continue, including allowing that person to get up or out from under you. Sorry. I believe you are wrong. The law cannot continue to treat rape as a matter of sexual miscommunication. That’s confusing for everyone.

  15. jenevastone says:

    Yup. Put the priests and bishops away, too. Rape is a criminal mentality. If we continue to mix up sex and rape under the law, we will get nowhere.

  16. jenevastone says:

    I completely disagree. By establishing a specific (or criminal) intent, we move away from a sole focus on victim credibility to a dual focus on victim and accused credibility. This involves an examination of the accused’s motives and sexual history, which can then include what the accused was doing prior to the incident, to whom he spoke and about what, his history of remarks about women, etc.

    The hypothetical you pose is incredibly vague–no one could make anything of that. It makes no sense. It also sounds like it’s straight out of a Victorian novel (and a bad one, frankly). It has nothing to do with modern day sensibilities.

    This vague hypothetical does not include the victim’s response. And you’re evading the point. If a man needs to hold a struggling woman down to “make her feel good,” that’s rape. That’s not making anyone feel good. And I’m sorry, but if men can’t figure that out, it’s pretty ignorant. The moment you begin to force someone by threats, coercion or the application of force of any kind, you are raping that person. Rape begins when the perpetrator takes away the ability to consent. You can’t excuse that with some antiquated language about “her eyes saying yes”–no one in a modern courtroom would find that credible.

  17. caphillprof says:

    Precisely.

  18. percysowner says:

    Unfortunately this will end in many people found not guilty because “Her lips told me no, no, but there was yes, yes in her eyes!” and “but I didn’t want to hurt her, I wanted to make her feel good!”

  19. Indigo says:

    Agreed.

  20. Bill_Perdue says:

    Agreed.

  21. caphillprof says:

    You have made no progress on the underlying problem of moving nonsexual children to sexual adults. It’s hard for men and its hard for women and in different ways. Under your redefinition the serial victim at UVA would not have been raped because of the lack of force and threat.

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