Rape: Legal Aspects

Modern rape laws are conceived primarily as a means to protect women and men against physical harm, emotional injury, and interference with sexual autonomy (the right to choose the circumstances of sexual intimacy). Historically, the purposes of rape law were more limited, and the law's coverage was narrow. Rape law was long concerned, for example, with protecting the chastity of women. In practice, sexually experienced victims received far less protection, and the law often endorsed that perspective, for example, in its preoccupation at trial with evidence of a woman's prior sexual history.

In addition, rape law traditionally focused on protecting property-like interests of men—the interest of a father in the virginity (and thus the marriagability) of his daughter and the interest of a husband in exclusive sexual access to his wife. Thus, rape law did not apply when a woman was forced to have sex with her husband. Vestiges of these narrow conceptions of the law's purpose may survive today and may partially explain resistance to shedding traditional limits on the coverage of the offense.

The common complaint that rape law was (and perhaps still is) unfair to women is, at first glance, somewhat surprising because rape law traditionally protected only women; it afforded no protection at all to male victims of sexual assault. In what sense, then, is it plausible to think of rape law as discriminating against women?

Several points must be noted. First, the protection afforded to women was traditionally hedged with evidentiary restrictions unknown in other offenses. Second, rape law as traditionally administered provided fully effective protection only to certain women—those who dressed modestly, behaved properly, and did nothing to invite a sexual advance. By offering its primary protection only to such women, the law in effect favored (and perhaps still favors) some women over others.

This last feature of the law, moreover, arguably discriminates against all women, in that it may channel women into certain patterns of behavior and thus deny all women the freedom to choose a fully independent life. A nondiscriminatory law of rape arguably should protect the right of all persons, women and men, to freely choose the circumstances of sexual intimacy, without withholding protection from those who drink, walk alone at night, talk to strangers, or lead unconventional lives.