Rape and Equal Protection

In law, rape is roughly defined as sexual penetration by force without consent. Both material elements of force and nonconsent must be proven to convict a man of rape. Force (in all but two states) is stringently interpreted to mean actual physical violence, or the threat of it. Nonconsent is usually interpreted to require some level of overt physical resistance beyond verbal protest.

It is important for the nonlawyer to recognize that these are separate elements that must be proven independently. One does not count as evidence of the other. For example, if a woman were paralyzed with fear (or prudently decided that not resisting was the best way to avoid being beaten or killed) by a man who threatened her without a weapon, the element of nonconsent would not be met if she did not resist. According to law she has not been raped. Many nonlawyers have trouble accepting these separate elements as unrelated, since the idea of a woman consenting to sex she was forced to have sounds like a contradiction in terms. But in the law of rape the elements are separate, and the evidence required to prove each of them is independent of the other.

The result of these stringent requirements (along with additional factors such as prosecutorial discretion, jury suspicion, and problems of corroboration) is that the conviction rate for rape has long been much lower than for most other serious crimes. For example, in the 1970s in New York in one typical year several thousand complaints resulted in only 18 convictions. Conviction rates for other felonies were ten to twenty times higher. (Schulhofer, 27.) That may have been an especially bad decade in New York, but the statistics are nevertheless fairly representative across the country, and they have not changed significantly to date (Schulhofer, 38).

Egregiously low conviction rates for rape are common knowledge within the legal community, and have been a source of concern for fifty years. Indeed, alarm over low conviction rates in clear cases of serious abuse led members of the prestigious American Law Institute to attempt to encourage reforms to rape law through the Model Penal Code during the 1950s. While the influence of the Model Penal Code has been enormous in general, its effect on rape law was basically indiscernible. (Schulhofer, 20). Since then, renewed reform efforts have occurred in every decade. Modest reforms have been widely instituted. The legal requirement of corroboration has been eliminated in most states, as well as the special caution to juries (namely, that they should be suspicious of the witness in a rape trial). Also rape shield laws have been instituted to protect the witness by disallowing discussion of her past sexual history. And the original requirement of "utmost resistance" (basically, that in order to show nonconsent, a woman must defend her honor almost with her life) has been reduced to something like "reasonable resistance." (And very recently a few states have actually made sexual intercourse without consent a crime, although not the crime of rape.) Yet, the effect of these reforms has been negligible. Conviction rates remain virtually unchanged. So it seems that despite considerable attention to the problem in recent decades, and some serious efforts at reform over the past forty years, little progress has been made.

Two recent books, Rape and the Culture of the Courtroom by Andrew E. Taslitz, and Unwanted Sex: The Culture of Intimidation and the Failure of Law by Stephen J. Schulhofer, ask why this is so, and offer two very different, but equally thoughtful and innovative proposals on how to change it. The two books have certain features in common. Both are concerned with the current discriminatory culture in matters of sexual interaction, and the failure of law to protect interest that clearly warrants it. Both are powerfully argued and meticulously documented, fully supported by statistical, legal, and other theoretical...