Rape: Legal Aspects

At common law, rape, like all felonies, was punishable by death. By the early twentieth century, most American states had reserved the death penalty for cases of first-degree murder, but a substantial minority, primarily southern states, continued to authorize capital punishment for rape. There was intense concern, however, about racial discrimination, as the overwhelming majority of defendants executed for rape were black men accused of raping white women. Those concerns were in the background, though unmentioned, when the Supreme Court ruled capital punishment for the rape of an adult woman unconstitutional, on the ground that death was a penalty disproportionate to the severity of the offense (Coker v. Georgia, 433 U.S. 584 (1977)).

Where not subject to capital punishment, rape was typically punishable by long prison terms, including life imprisonment. In the 1950s reformers saw these severe penalties as an obstacle to effective enforcement. In date-rape situations and cases involving only implicit threats, juries often acquitted, or prosecutors refused to file charges, partly out of concern that authorized penalties were disproportionately severe. To combat this problem, the Model Penal Code recommended dividing rape into several distinct offenses, with the more severe penalties reserved for cases involving strangers and extreme forms of force. Today many states follow this approach, and many continue to authorize life imprisonment for the highest degree of rape.