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Rape is the taking of sexual intimacy with an unwilling person by force or without consent. Historically, rape was regarded as an offense that could be committed only against a woman not married to the defendant, and it was seen both as a crime of violence against her and as a property crime against her husband or father. Today, the law recognizes that rape can be committed against females and males, and it is viewed both as a crime of violence and as violating an individual’s basic right to decide with whom to have sex.[1]

Probably no crime has been more sharply affected by contemporary society’s rapidly changing attitudes. Influenced by the newly arrived voices of women in the law, legislatures have enacted sweeping changes in the statutory definitions of rape and the evidentiary rules for trying rape cases. That this law reform has been controversial is not surprising. It reflects shifting perceptions about our most intimate human activity, appropriate sexual behavior by males and females, the relative status and power of men and women in society, the proper balance between convicting the guilty but not the innocent, and the legal consequences of the marriage relationship.

A discussion of how the law should define rape and establish procedures for trying rape cases can elicit intense emotional responses. Many people feel strongly that the common law treated women as chattel, keeping them in a subordinate social position. For example, under the common law a wife could not accuse her husband of rape. Furthermore, any crime committed by a married woman (except killing her husband) was deemed to have been coerced by her husband and she could not be punished for it. The common law essentially treated a married woman as totally passive and subject to the will of her husband. Though she may have received some modest advantage from her marriage status, the disadvantages she suffered under the law far outweighed any advantages.

Thus, many critics argue that retaining any remnants of the common law, especially the common law of rape, simply preserves women’s profoundly disadvantaged legal status. Others, while perhaps agreeing with these criticisms, argue that the common law, including the common law of rape, had some good points that should not be discarded precipitously in the law revision process. They express concern about possible harmful consequences of contemporary law reform, such as increasing the risk that innocent people will be convicted. The discussion is made more complicated by changing social contexts in which acts that are (or can be seen as) rape occur, especially “date rape”; by perceived tensions in the sexual relations between men and women; and by the pressures generated both by biology and culture.

Everyone will undoubtedly approach this subject in light of his or her individual characteristics, experiences, and attitudes. Nevertheless, we should each try to understand the complexity of the issues involved and the different viewpoints others may have.

[1] See generally, Stephen J. Schulhofer, Unwanted Sex (1998); Susan Estrich, Real Rape (1987).

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