rape (law)

rape in law, the crime of sexual intercourse without the consent of the victim, often through force or threat of violence. The victim is deemed legally incapable of consenting if she or he is known to be mentally incompetent, intoxicated, drugged, or below the age of consent at the time of the rape. Such cases are known as statutory rape, and evidence of consent is not deemed relevant in court. Although the term rape has traditionally applied to the male use of force in sexual relations with females, applicable laws have been revised in many jurisdictions to include possibilities where a male is the victim.

Issues surrounding rape and the law have been fiercely debated for years in the United States, and recent efforts—particularly by feminist groups—have had marked success in expanding victims' rights. One important reform, which has been in effect in most states in recent years, has been the removal of statutes requiring that rape victims physically resist the attack. Prior to this reform, victims of rape were required to display clear signs of injury in order to prove that they did not consent to sexual relations. Another reform has made marital rape a crime in many circumstances, with South Dakota becoming the first state to institute such law reforms in 1975. In the 1980s, "date rape," or acquaintance rape, became an important issue, particularly on college campuses. Victims of date rape contend that they were raped by an individual with whom they were acquainted. In many such cases, the establishment of guilt becomes difficult, particularly in cases where the victim displays no physical evidence of violence and there is only the testimony of the victim. In international law, rape was designated (2000) a war crime by the Yugoslav tribunal established by the United Nations at The Hague. Rape can cause profound psychological trauma in its victims.

Bibliography: See D. E. Russell, The Politics of Rape (1984); S. Tomaselli and R. Porter, ed., Rape (1986); Z. Adler, Rape on Trial (1987); S. Estrich, Real Rape (1987).

rape has always been deemed a terrible crime. What has changed over time is the perception of what constitutes rape. Since the 1960s, rape is increasingly considered as sexual intercourse without consent. Not very long ago physical violence was taken to be intrinsic to the notion of rape; this is no longer so. It was also assumed that rape occurred predominantly between strangers. Now the idea of rape within marriage is no longer thought a contradiction in terms.

Defined as the unlawful carnal knowledge of a woman by force and against her will, rape was a capital crime already in early Anglo-Saxon times. It was deemed a crime even where legal codes said nothing of it. Thus the Chevalier de Jaucourt (1704–80 cited the argument which Cicero (106–43 bc) had made around 46 bc:
[e]ven if there was no written law against rape at Rome in the reign of Lucius Tarquinius, we cannot say on that account that Sextus Tarquinius did not break that eternal Law by violating Lucretia, the daughter of Tricipitinus! For reason did exist, derived from the Nature of the universe, urging men to right conduct and diverting them from wrong-doing, and this reason did not first become Law when it was written down, but when it first came into existence; and it came into existence simultaneously with the divine mind.

Throughout the ages, political theorists warned princes of the consequences of rape. Machiavelli (1469–1527), for one, stressed the political danger it presented. ‘Among the primary causes of the downfall of tyrants’, he argued, ‘Aristotle puts the injuries they do on account of women, whether by rape, violation or the breaking up of marriages … absolute princes and rulers of republics should not treat such matters as of small moment, but should bear in mind the disorders such events may occasion and look to the matter in good time, so that the remedy applied may not be accompanied by damage done to, or revolts against, their state or their republic.’

Amongst those who wrote about rape, some, like St Augustine (ad 354–430), stressed that the victim of rape was untainted by it. ‘There will be no pollution, if the lust is another's; if there is pollution, the lust is not another's,’ he contended, adding; ‘While the mind's resolve endures, which gives the body its claim to chastity, the violence of another's lust cannot take away the chastity which is preserved by unwavering self-control.’ Critical of Roman culture and the importance it gave to honour, St Augustine criticized Lucretia for taking her life following her rape by Tarquin. Christian women, St Augustine argued, ‘did not take vengeance on themselves for another's crime.’ The public gaze did not unduly concern them, for they knew themselves to be chaste in the sight of God. In the seventeenth century, the jurist, Samuel Pufendorf (1632–94), was one of the many authors who reiterated St Augustine's point, although he stressed that this did not impinge on the right of women to kill their aggressors in self defence. Jean Barbeyrac (1674–1744) drew attention to the fact that, under several ancient legal systems, seducers were actually thought worse than rapists, because they violated not only the body of their victims, but effectively their mind as well, and hence exercised power over their whole person and over their family.

To recognize that we are by no means the first to attend to the issue of rape, is not to presume, however, that rape is a timeless or universal feature of social existence. Women have not always lived in fear of rape, at least not to the extent to which they now do in some parts of the Western world. Anthropological and historical studies reveal some societies and ages to be far more ‘rape-prone’ than others. In 1887 Friedrich Nietzsche wrote: ‘No act of violence, rape, exploitation, destruction, is intrinsically ‘unjust’, since life itself is violent, rapacious, exploitative, and destructive and cannot be conceived otherwise. Even more disturbingly, we have to admit that from the biological point of view legal conditions are necessarily exceptional conditions, since they limit the radical life-will bent on power and must subserve, as means, life's collective purpose, which is to create greater power constellations. To accept any legal system as sovereign and universal — to accept it, not merely as an instrument in the struggle of power complexes, but as a weapon against struggle (in the sense of Dühring's communist cliché that every will must regard every other will as its equal) — is an anti-vital principle which can only bring about man's utter demoralization and, indirectly, a reign of nothingness.’

Those who, like Cicero, endorse a natural rights theory, and who believe that natural law is the expression of God's will, have no difficulty in arguing what is wrong about rape. Nor should they face too much difficulty in making a case for a moral community which enforces certain ideals of conduct with respect to others and themselves. Those who don't ground their moral theories in a theocentric framework will have to come to terms with the fact that liberty is not an empty ideal, a licence for anything, and that the liberty of women is conditional on the struggle against their being considered in any way men please. Or as Nietzsche contended, that wills cannot be regarded as equal. The law is indeed an instrument of struggle; it is one of the means by which society struggles against barbarism. Other means must be deployed to make for a culture in which sex is conceived not as something individuals have a right to, nor independent of personal relationships and the duties and responsibilities they entail. This will not be the reign of nothingness, it will be the assertion of the will of civilized women, and men.

Sylvana Tomaselli

Bibliography

Tomaselli, S. and Porter, R. (ed.) (1989). Rape: an historical and social enquiry. Blackwell, Oxford.

stat·u·to·ry rape • n. Law sexual intercourse with a minor.