With a continuous barrage of accusations of sexual harassment and assault daily against Hollywood mogul Harvey Weinstein, the hashtag #metoo has taken off. Women and men have shared #metoo to show the overwhelming reach of sexual assault. As the hashtag gains momentum, so too, do the responses.
Unfortunately, not all of the responses we see to the #metoo movement are supportive or sympathetic. In fact, some of the comments are downright disturbing. Even as women are finding their voice and baring their souls, critics are demanding that they “qualify” their experiences, as though certain levels of sexual assault are acceptable.
If the hashtag were #houserobbed, it is highly unlikely that the victim would be asked what they did to provoke the robbery. Similarly, they would not face criticism for not objecting forcefully enough. As though by not saying to the robber “No! Do not rob my house,” they were consenting to the robbery. But this is precisely the logic many critics use to deflect or dismiss victim’s claims of harassment or assault.
We live in a country that elected a man who notoriously bragged about sexually assaulting women, groped, assaulted, and harassed countless women all the while making money and rising to the most powerful position in the world. We live in a country where a woman can be raped behind a dumpster and whose assailant is given probation, goodness knows we wouldn’t want to ruin his future over a little rape, boys will be boys after all.
Our nation’s complicated relationship with sexual assault crimes dates back to our English roots. Our sordid and overtly misogynistic history is the soil in which our current attitudes and laws have been cultivated.
Common Law Sexual Assault
Modern-day sexual assault statutes find their roots in the common law. The common law is “judge-made law.” It is the law that was inherited from England and continues to shape American law even now. The common law approach to sexual assault was rooted in the fact that women were chattel. Women were the property of their father’s or husband’s, so rape was a crime against the property owner as it diminished the value of the property.
This is an abhorrent thought today but was the basis for the common law approach to the prosecution of rape. Under the common law, there was not sexual assault there was only rape. Rape was defined as “Carnal knowledge of a woman forcibly and against her will.”
In the common law, carnal knowledge referred only to sexual intercourse between a man and a woman. The language was specifically gendered and disallowed the possibility of male victims or female perpetrators.
The focus was on force, and the only way a woman could prove the encounter was “against her will” was if she “resisted to the utmost.” So consent was less relevant then force. It was assumed if the woman did not fight back, if the attack was not perpetrated with force or threat of force, then it was consensual.
Another component of common law rape law was that it exempted married men from sex with their wives. It was assumed that all sex between a husband and wife was consensual as it was a woman’s marital duty to fulfill her husband’s sexual demands.
Sexual Assault Reform
During the 1970s the feminist movement sought to change the way sexual assault was viewed and prosecuted. Until reforms of the 1970s states largely enforced common law rape principles. The reform movement looked to shift the focus from a focus on force to a focus on consent.
Feminists during the 1970s made an unlikely ally in law and order hardliners who joined them in criminalizing a broader range of sexual assault. The reforms eliminated the marital exemption and the requirement that a woman “resist to the utmost.”
Similarly, corroboration requirements that had been enacted requiring a woman have corroborating evidence, either eyewitness testimony, ripped clothing, or injuries, were revoked. Another tenant of common law rape was the fact that culpability was diminished when a woman had allowed the perpetrator previous “sexual liberties.”
In response to this, activists sought to enact rape shield laws. Such laws protect victims from being cross-examined during a trial about any prior sexual activity. Reforms of the 1970s also made sexual assault language gender-neutral and broadened the scope of sexual assault to include other types of non-consensual sexual contact that was previously not considered criminal.
The sexual assault reforms of the 1970s revolutionized the way sexual assault is viewed and prosecuted. Sexual assault statutes are adopted state by state. Some states have essentially adopted all the reforms, others have retained a combination of reformed ideas and common law principles.
In a 1992 decision, the Superior Court of Pennsylvania said that lack of consent, a victim said no, was not sufficient to prove rape because lack of consent did not prove force. In Pennsylvania, it remains a requirement that there be force involved, not simply lack of consent.
In another case from 1992, this time in New Jersey, a court held that a lack of consent in and of itself establishes a sexual assault. If there is not some consent given, the force of the crime itself is enough to meet the requirement for the statute.
Victim’s in one state may see their perpetrator prosecuted and convicted for an assault that had it occurred in a neighboring state, would not even be considered a crime. The remnants of the common law approach to rape are still seen today in states that require proof of force, beyond the force of the crime itself. While the requirement that the woman “resist to the utmost” is no longer applied in theory, in practice, short of proving resistance, it may be difficult for a victim to show there was force involved.
The Model Role of the Model Penal Code
The American Law Institute drafted the Model Penal Code in the 1950s to provide a standard approach to statutes in criminal law across all states. It is not law, but many states have adopted Model Penal Code rules as the governing statutes in their states.
The Model Penal Code section on sexual assault has not been updated since the 1960s. It has been unchanged by the reforms of the 1970s. It maintains the exemption for rape within marriage, is gendered in its language, and requires resistance to show a lack of consent.
While much of the law seems dated, sadly much of it looks familiar as well. States continue to define consent in a way that demands a victim prove a lack of consent; otherwise, consent is assumed to be present.
The American Law Institute is currently in the process of updating the sexual assault statute so that it is relevant today. They put forward a definition of consent that would assume there was no consent unless there were words or actions that demonstrated “affirmative consent.”
This is consistent with the definition that has been implemented across a number of college campuses nationwide. Consent in a sexual assault like in all other crimes. If a person does not say “you may use my car,” if another person takes the car, it is assumed that there was no consent and the car was stolen.
Unfortunately, the American Legal Institute turned down the affirmative consent definition of consent in favor of a definition that retains some of the common law ideas, assuming that, unless a victim expresses a lack of consent explicitly and forcefully, then there was no crime.
While the treatment of sexual assault under the law has changed to serve justice and victims better, there is still much work to be done. Disparities from state to state, along with a general disinterest in taking on challenging cases means countless cases go unpunished every year.