Rape and Rape Laws: Sexism in Society and Law

In hundreds of ways, large and small, a woman's life is shaped by the persistent threat of rape: women hesitate to venture out at night without male escorts, to live alone, to hitchhike, to stay late at the office to work alone, to take certain jobs.Men in prison who live with the threat of homosexual rape are probably the only men in our society who experience fear comparable to that felt by all women.The fear of rape not only inhibits the freedom of women, it also exaggerates the dependency of women upon men.The law concerning forcible rape and the way it functions both influences and is influenced by the relationship between men and women in our society.Yet the legal commentators who have written on the subject have not analyzed rape laws with any sensitivity to this phenomenon.And they have ignored the possibility that rape laws as they are presently conceived, rather than protecting women, might actually work to their disadvantage by hindering prosecution of rapists and by exacerbating the inequality between men and women.This Comment argues that rape laws are largely based on traditional attitudes about social roles and sexual mores.The structure of the laws, enforcement, and prosecution are all based on untested assumptions about the incidence of the crime, the motivation of the criminal, and the psychology of the victim.As a result, the laws do not effectively deter rape: police enforcement of complaints is inadequate, and judicial treatment of defendants is oversolicitious.Thus rape laws are not designed, nor do they function, to protect a woman's interest in physical integrity.Indeed, rather than protecting women, the rape laws might actually be a disability for them, since they reinforce traditional attitudes about social and sexual roles.Although societal attitudes no doubt are responsible for the present construction of rape laws, it is also true that this construction serves to reinforce those attitudes.If the laws were changed to relate more rationally to the reality of the crime and to the goal of sexual equality, attitudes about the crime might also change.This Comment is concerned only with forcible rape, which generally refers to sexual intercourse accomplished without the consent of the female. 1 Since consent is the crucial element in rape, forcible 1.Although few of the total number of rapes are reported to police [see text accompanying notes 8-13 infra), this Comment proceeds on the assumption that the available information describing reported rapes accurately describes all forcible rapes.