SEX DISCRIMINATION
Paternalistic legislation might seem to reach a justification of sorts in cases of rape. Although paternalism is not absent from rape legislation, the actual process of prosecuting alleged rapists and the concomitant treatment of rape victims is typically paternalism’s nemesis turned against the victim herself.
Rape often has been viewed as an almost unique crime. Among crimes of sex, it is one which is decidedly not victimless. The legal definitions of rape, interpretations of relevant statutes, and indeed the entire criminal process pursuant to a rape charge, are a myriad of practical and theoretical conundrums.
Only in a minority of cases do rape victims report the crime; rape has a bizarre “halo” effect, bestowing on the victim a sense of degradation and often an implied responsibility for the crime. Although the FBI reports 55,000 rape cases per year (Gager and Schurr) that figure—of reported rapes—is estimated to represent between five percent and twenty percent of actual rapes. Furthermore, a relatively high proportion of rapes reported to the police have been classified as false reports, as “unfounded.”
However rape may be defined in a specific, legal sense, understandings of the crime and its implications have shifted through the ages. In Biblical, as in early English law, rape was comprehended as an act akin to theft, robbing a woman’s male guardian of her virginity. Earlier assumptions and ambiguities “as to whether the crime was a crime against [a man's] own estate” (Brownmiller) have not vanished totally. The laws of rape continue to be linked with those of marriage. In most states of the United States, though not in other countries (e.g., Sweden, Denmark, the U.S.S.R.), rape by legal definition cannot occur between spouses; a woman cannot be raped by her husband, for in establishing the marital bond, she effectively gives up the legal right to withhold consent from what otherwise might be deemed rape.
The law’s and the wider society’s suppositions about what constitutes the crime of rape may be revealed in comparing rape laws with other statutes. In particular, rape bears certain similarities to incest; that comparison becomes especially striking when comparing statutory rape (rape with a victim below a specified age) to incest committed by a father or legal guardian with his young daughter. In a different sense, rape can be compared with robbery. The first comparison, between rape and incest, becomes significant in regard to dissimilar penalties tending to be exacted from the victimizer; the second comparison, between rape and theft, is important in light of differential treatment typically accorded the respective victims by police and in the courts. What is or should be implied by the victims’ consent, crucial to rape trials, and by the rapist’s use of “force” becomes the crux of the matter in both comparisons.
Consent by a rape victim is a defense to a prosecution for rape. Consent, however, is irrelevant—being legally impossible to grant or to refuse—when the victim is below a certain age (set at ten in the Model Penal Code) or is incompetent. Penalties for statutory rape of a girl presumed too young to be able to offer reasonable consent are among the severest handed down in cases of convictions of rape. In contrast, a man charged with “raping” his young daughter (termed incest) tends to be treated with more leniency by the courts than is the convicted rapist. In this regard, the effect of the law, if not its explicit intent, would seem to have a protracted history. The codes of Hammurabi, which condemned a man to death for raping a betrothed virgin, dealt with one found to have committed incest with his daughter by simply expelling him beyond the city walls (Brownmiller).
*159/187/5*
