From Encyclopedia of Sex and Sexuality
Unlawful sexual intercourse, by force or threat of force, without the woman’s consent. While it is possible for men to be raped, nearly all reported rape cases involve men raping women. Sexual assault is a broad term that covers a variety of sex offenses including rape, child molestation, and spousal rape. These definitions are accepted generally in Western societies; in the United States, however, each state has its own laws defining the precise elements of rape and sexual assault in that state.
In recent years many states have reformed their rape laws to reflect more enlightened attitudes. Before this, many states imposed rules of corroboration that essentially precluded successful prosecution in cases in which the only evidence was the woman’s testimony against the man. Another aspect of rape reform addressed the definition of rape as sexual intercourse between persons not married to one another; it is now accepted in most states that rape can occur within a marriage. Also, before rape reform, much discussion centered on how much force was necessary for a sexual act to be considered rape. It is now understood that a person can be raped without suffering a severe beating.
Perhaps the most decisive turn in rape reform came with the key phrase, “No means No.” In the past it was assumed that a woman also said “no” to a man when in fact she meant “yes.” This was based on two outmoded premises: that women neither knew what they meant or meant what they said, and that since women were under pressure to protect their virtue, they had to appear disinterested in sex. The current consensus is that not only do women know that they mean, but that men must listen to them.
This change in attitude about a woman’s words opened the way for date rape to be accepted as real rape. It is no longer assumed that a woman can only be raped by a stranger, or that she provoked being raped by wearing sexy attire or going to a man’s apartment. The accepted view now is that date rape is real rape. Men are not expected to be mind readers, and a woman’s regrets the next morning do not make sex into rape. But men are expected to take no for an answer: if they refuse to and overpower the woman, the claim that she was asking for sex by going on a date or coming to the man’s room for a drink is no longer a valid defense (although, unfortunately, it continues to influence juries in rape cases).
Rape law no longer focuses as much on what counts as force or what is required to prove non-consent. Instead, today’s debate is about credibility; when should a woman be believed, and what does a jury need to know about a woman before it can decide whether to believe her? This move, from issues of culpability (blame) to issues of credibility, has consequences for tactics of rape defense. An accused man cannot argue that no means yes, so the best strategy is to present the woman as either a “nut or a slut” in order to discredit her. No study has ever found that women lie about rape more often than men lie about other crimes. Even so, women are still forced to challenge the myth of the lying woman, the spurned lover who seeks revenge, or the deflowered virgin, who refuses to assume responsibility for her sexual activities.
Another issue prevalent in rape law today is whether evidence of prior sexual experience by the woman or prior sexual abuse by the man should be presented in a rape trial. Many states have rape shield laws that prevent the intimate details of a woman’s sexual past from being paraded before the court as evidence of her consent. Rape shield laws were enacted to prevent women from being harassed by defense attorneys and to undermine the view that if a woman has had intercourse in the past, in the future she is somehow unable to say “no” to any man, including one with whom she has previously had consensual sex.
Many judges now opt for a symmetrical approach, whereby evidence about prior sexual acts by either the man or woman are excluded from a trial. On the surface this seems like a fair approach, but many observers believe it is more damaging to women than to men. Evidence that a man has abused other women is much more suggestive of rape than evidence that a woman has had consensual sex with other men is suggestive of consent.
Today most people agree that no means no, and that force can be established if a man pushes a woman down in order to have sex with her. However, there is very little agreement about what information is needed about the woman or man before deciding whether she actually said yes or no. The challenge facing rape laws will be to resolve the issues of credibility, so as to maintain a balance that will protect both the innocent woman and the innocent man.