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2010

Diminishing the Legal Impact of Negative Social Attitudes toward

Acquaintance Rape Victims
Michelle J. Anderson
CUNY School of Law

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 DIMINISHING THE LEGAL IMPACT OF
NEGATIVE SOCIAL ATTITUDES TOWARD
ACQUAINTANCE RAPE VICTIMS
Michelle J. Anderson*

Rape law often condemns females who are not chaste and excuses males who
act with sexual entitlement. Rape law has been a significantsitefor the valo-
rization offemale chastity and constraint, on the one hand, and maleprowess
andfreedom, on the other. It continues to reflect the sexism of a culture resis-
tant to ceding male control over sexuality. Legal reform of rape law over the
pastfortyyears has greatly helped those who experience stranger rape that in-
cludes violence extrinsic to the rape itself However, this generation of reform
did not sufficiently help those whose experiences are more common: those raped
by acquaintanceswithout extrinsic violence. To tackle this largerproblem, the
law must undergo anothergenerationofrenewal, one that works affirmatively
to diminish the legal impact of negative social attitudes toward acquaintance
rape victims. This articleproposes a range of legal reforms to that end.

Like other cultural narratives around sexuality, rape law often condemns
females who are not chaste and excuses males who act with sexual entitle-
ment. Rape law has been a significant site for the valorization of female
chastity and constraint, on the one hand, and male prowess and freedom,
on the other. It continues to reflect the sexism of a culture resistant to ced-
ing male control over sexuality. Legal reform of rape law over the past forty
years has greatly helped those who experience stranger rape that includes
violence extrinsic to the rape itself. However, this generation of reform did
not sufficiently help those whose experiences are more common: those
raped by acquaintances without extrinsic violence. To tackle this larger

*Dean and Professor of Law, City University of New York School of Law. Anderson@
mail.law.cuny.edu.

New CriminalLaw Review, Vol. 13, Number 4, pps 644-664. ISSN 1933-4192, electronic
ISSN 1933-4206. @ 201o by the Regents of the University of California. All rights reserved.
Please direct all requests for permission to photocopy or reproduce article content
through the University of California Press's Rights and Permissions website, http://www.
6
ucpressjournals.com/reprin dnfo.asp. DOI: Io.525/nclr.2oio.13.4. 44.

644 |
 ACQUAINTANCE RAPE VICTIMS 645

problem, the law must undergo another generation of renewal, one that
works affirmatively to diminish the legal impact of negative social attitudes
toward acquaintance rape victims.
This article proposes a range of legal reforms to that end. The marital
rape exemption and the historical requirements in rape law of resistance,
corroboration, and chastity continue to infect both statutory law and
the way that actors with the criminal justice system-police, prosecu-
tors, judges, and juries-see the crime of rape. Reforming each of these
areas with an eye toward diminishing the legal impact of negative social
attitudes toward acquaintance rape victims is the next step in rape law
reform.

I. ACQUAINTANCE RAPE'

When asked to imagine the classic rape, the American mind often conjures
up a narrative something like this:

A fair young woman is walking home alone at night. Grey street lamps cast
shadows from the figure she cuts through an urban landscape. She hurries
along, unsure of her safety. Suddenly, perhaps from behind a dumpster, a
strange, dark man lunges out at her, knife at her throat, and drags her into
an alley where he beats her until she bleeds and threatens to kill her. The
young woman puts up a valiant fight to protect her sexual virtue, but the
assailant overcomes her will and rapes her. Afterwards, she immediately
calls the police to report the offense.

The classic rape narrative is woven from a racist and sexist mythology
specific to American history. Color infuses the yarn: sinister blackness
against innocent whiteness, in a conflict that draws red blood. Extrinsic,
violent assaults by a stranger are the weft and warp of the tale: the rapist's
wielding of a knife, his dragging her into an alley, his beating, his threat
of death.
Despite generations of repeated storytelling, this type of rape is, in terms
of actual incidence, a statistical outlier-so different from the norm as to
be exceptional rather than typical. Allow me to contrast that narrative with

i. This section derives from a previously published article by this author: All-American
Rape, 79 St. John's L. Rev. 625 (zoos).
646 NEW CRIMINAL LAW REVIEW I VOL. 13 | NO. 4 | FALL 2010

a description of a typical rape, one in which you may imagine that both the
offender and the victim are of your own race:

A young male and female meet at a party and begin to talk, drink, and flirt.
They wander to a quiet place together. Once there, he pushes her down,
pins her, and begins kissing her aggressively. She does not want to be rude.
He must have misunderstood, she thinks. The alcohol is getting to her, she
feels dizzy, and she wonders if she is going to throw up. She says, "Ummm ...
wait ... please .. . I'm not sure that this is what we should do." He ignores
her and begins taking off her clothes. She cannot get away and her panic
rises. She cries as he penetrates her. Shamed by the experience, she does not
tell anyone until three years later when she confides in a trusted friend. She
never calls the police.

This time there is no extrinsic, violent assault by a stranger: no knife, no

dragging into an alley, no beating, no threat of death. There is no black
male attack on white femaleness, no brawl that draws red blood. Yet, this
story represents the statistical norm of sexual assault in this country: no
matter the race of the parties, it is typical of rape.
The typical rape in the United States does not happen in an alleyway. It
most often happens in the victim's own home or in the home of a friend,
relative, or neighbor.2 The typical rape is not launched by a stranger.
Acquaintances and intimate partners commit the vast majority of rapes.'
The typical rape does not involve a black man attacking a white woman.
Rape is overwhelmingly an intraracial crime.4 The typical rape involves
no knives, guns, or other weapons.' Rapists usually find verbal coercion
and pinning sufficient.6 The typical rape does not involve valiant physical

2. U.S. Department of Justice, Criminal Victimization in the United States, 2002

Statistical Tables, tbl. 61 (zooz): indicating that the highest percentages of rapes occur in
the victim's home or the home of a friend or relative.
3. Id. at tbl. 43: stating that about 68 percent of rapes and sexual assaults are committed
by acquaintances, relatives, and intimates.
4. Id. at tbl. 42: indicating that 86 percent of black victims report black offenders and
14 percent report white offenders, whereas 76 percent of white victims report white offend-
ers and 13 percent report black offenders.
5. Id. at tbl.
66: showing that 85 percent of rapes and sexual assaults involve no weapons.
6. Mary P. Koss et al., Stranger and Acquaintance Rape: Are There Differences in the
Victim's Experience?, i Psychol. Women Q. i, 2o (1988): "Assaults by strangers were per-
ceived as more violent than assaults by acquaintances. . . . Stranger rapes were more likely
than acquaintance rapes to involve threats of bodily harm, hitting, slapping, and display or
use of weapons."
 ACQUAINTANCE RAPE VICTIMS | 647

resistance on the part of the victim. Frozen in fright, many women cry
or remain passive in the face of a sexual attack.' The typical rape does not
involve a victim with untainted sexual virtue. Rape happens to imperfect,
complicated souls-like all of us-whose sexual pasts could not withstand
critical public scrutiny. The typical rape does not include a prompt report
to the police; many victims never report their most harrowing experiences
to any authority figures.'
English common law defined rape as a man obtaining sexual intercourse
. by force and without a woman's consent. In 1769, in his Commentaries on
the Laws ofEngland,William Blackstone explained that rape was the "car-
nal knowledge of a woman forcibly and against her will." "Forcibly" meant
that the man used physical force or its threat to obtain sexual penetration.
"Against her will" meant that the woman did not consent to sexual penetra-
tion, and the law required that she resist him to the utmost of her physical
capacity to express her nonconsent. As the following sections of this article
demonstrate, the common law of rape came to include a corroboration
requirement, a prompt complaint requirement, a resistance requirement, a
chastity requirement, a martial rape exemption, and a cautionary instruc-
tion warning judicial decision makers to treat a rape complainant's testi-
mony with suspicion. Each of these doctrines in rape law has been subject
to substantial reform, but rape law needs more reform still.

II. CORROBORATION, PROMPT COMPLAINT,

AND CAUTIONARY INSTRUCTIONSo

Under English common law the prompt complaint requirement meant

that a woman had to complain swiftly of rape to officials or she could
not obtain legal redress for the crime. Henrici de Bracton, an influential
thirteenth-century English legal scholar, explained:

7. Robert Finn, Paralysis Common Among Sexual Assault Victims, Fam. Prac. News.
Mar. 1, 44 (2003).
8. Bonnie S. Fischer, Francis T Cullen & Michael G. Turner, U.S. Dep't of Justice, The
Sexual Victimrtization of College Women 17, 23-24 (zooo).
9. William Blackstone, 2 Commentaries on the Laws of England 2o9 (1895).
so. This section derives from a previously published article by this author: The Legacy
of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary
Instructions on Campus Sexual Assault, 84 Bost. L. Rev. 945 (2004) [hereinafter Legacy].
648 NEW CRIMINAL LAW REVIEW I VOL. 13 1 NO. 4 | FALL 2010

When therefore a virgin has been so deflowered and overpowered against

the peace of the lord the King, forthwith and whilst the act is fresh, she
ought repair with hue and cry to the neighboring vills, and there display to
honest men the injury done to her, the blood and her dress stained with
blood, and the tearing of her dress, and so she ought to go to the provost
of the hundred and to the searjeant of the lord the King, and to the coro-
ners and to the viscount and make her appeal at the first county court."

Despite the humiliation a victim might feel about revealing a degrading,

personal attack, a rule emerged requiring that she "forthwith and whilst the
act is fresh" complain of being raped to "honest men ... the provost .. . the
searjeant . .. the coroners ... the viscount and . .. the first county court."12
If she failed to do so, she was not allowed to bring a claim of rape in
court. 3 In 1962, the American-Law Institute (ALI), which was established
to promote updating and standardizing American common law, turned the
prompt complaint requirement in rape law into a strict statute of limita-
tions, which its Model Penal Code still contains: "Prompt Complaint. No
prosecution may be instituted or maintained under this Article [for sexual
offenses] unless the alleged offense was brought to the notice of public
authority within [3] months of its occurrence."" No other crime in the
Model Penal Code, from serious felonies to petty misdemeanors, requires
a similar prompt complaint.
The corroboration requirement in rape law meant that a man could not
be convicted of rape unless the complainant had corroborative evidence
of the assault, such as bruises or ripped clothing that proved a struggle."
Bracton assumed a rape victim should be able to "display to honest men
the injury done to her, the blood and her dress stained with blood, and the
tearing of her dress." The ALI's Model Penal Code turned this assumption
into a requirement, which it still contains: "No person shall be convicted of
any felony under this Article [for sexual offenses] upon the uncorroborated

ii. Henrici de Bracton, 2 De Legibus Et Counsuetudinibus Angilae 483 (Sir Travers

Twiss trans., 1879).
12. Id.

13. State v. Hill, 578 A. 2d 370, 374 (N.J.. 1990): reviewing the history of the "hue and
cry" requirement in the common law.
14. Model Penal Code § 213.6(4).
15. Bracton, supra note i, at 483: describing the evidence a rape victim should be able
to present.
 ACQUAINTANCE RAPE VICTIMS 1 649

testimony of the alleged victim."' A man may be convicted of burglary or

homicide upon the credible but uncorroborated testimony of one person,
but not so with rape. If a rape victim does not have corroboration, she does
not have a case.
Cautionary instructions in rape law warned jurors to weigh the testi-
mony of a rape complainant with particular circumspection. The seven-
teenth-century English jurist Sir Matthew Hale believed that rape "is an
accusation easily to be made and hard to be proved, and harder to be de-
fended by the party accused, tho' never so innocent."" Hale admonished:

we may be the more cautious upon trials of this nature, wherein the court
and the jury may with so much ease be imposed upon without great care
and vigilance; the heinousness of the offence many times transporting the
judge and jury with so much indignation, that they are over hastily carried
to the conviction of the accused thereof, by the confident testimony some-
times of malicious and false witnesses."

Many jurisdictions in the United States responded to Hale's admonition by

requiring courts to issue cautionary instructions to juries warning them to
assess the complainant's testimony in rape cases with extra suspicion. The
Model Penal Code continues to mandate such a warning:

In any prosecution before a jury for an offense under this Article [for sexual
offenses], the jury shall be instructed to evaluate the testimony of a victim
or complaining witness with special care in view of the emotional involve-
ment of the witness and the difficulty of determining the truth with respect
to alleged sexual activities carried out in private."

Again, no other crime in the Model Penal Code requires a similar caution-
ary jury instruction.

The prompt complaint requirement, corroboration requirement, and cau-

tionary instructions were three interdependent, legal rules designed to make
the crime of rape harder to prove than other felonies. In many jurisdictions,

16.Model Penal Code § 213.6(5).

17. i Mathew Hale, The History of the Pleas of the Crown 635 (Robert H. Small ed., ist
Am. ed. 1847) (1736)..
18. Id. at 636.
19. Supra note 16.
650 NEW CRIMINAL LAW REVIEW I VOL. 13 1 NO. 4 FALL 2010

if a woman failed to complain promptly, she would be forgiven if she had

corroborative evidence of having been raped. 20 If a woman suffered a rape
that produced no corroborative evidence, a prompt complaint itself might
serve as the necessary legal corroboration.2' A judge was frequently required
to issue cautionary instructions in a rape case unless the complainant prof-
fered corroborative evidence of the offense. 22 In many jurisdictions, then,
prompt complaint and corroboration substituted for one another, and cau-
tionary instructions were triggered by a complainant's failure to promptly
complain or offer corroborative evidence of the crime.
The prompt complaint requirement, corroboration requirement, and
cautionary instructions are each founded on faulty assumptions. The
prompt complaint requirement, for example, assumes that if someone
were really raped, she would immediately report the crime to the police.
However, most rape victims do not promptly report the crimes they suffer
to police or other authorities. In fact, most never report. According to the
1992-2000 U.S. Bureau of Justice Statistics' National Crime Victimization
Survey, 63 percent of rapes, 65 percent of attempted rapes, and 74 percent
of sexual assaults were not ever reported to the police.23 A 1997 Bureau of
Justice Statistics' random sample survey of 4,446 college-aged women in
the United States found that, although about one in ten had been raped
and another one in ten had experienced an attempted rape, fewer than five
percent of those victims reported their rapes or attempted rapes to police
or campus authorities.24 Of those rape victims who do tell police or other
authorities of having been sexually attacked, a substantial percentage delays
reporting for a period of time.2 5 Most women who are raped, therefore, do
not promptly complain.
The corroboration requirement assumes that, if a woman were really
raped, she would have corroborative evidence of the assault. Corroboration

zo. Legacy, supra note so, at 964-77.

21. Id.
22. Id.
23. Callie Marie Rennison, Bureau of Justice Statistics Selected Findings, Rape and
Sexual Assault: Reporting.to Police and Medical Attention 1992-2000 1 tbl. 1, 2 (2002):
reporting results of the study.
24. Fischer et al., supra note 8, at 23.
25. One quarter of the rape victims who reported their attacks to the police delayed re-
porting for more than 24 hours: National Victim Center, Rape in America: A Report to the
Nation 5-6 fig. 7 (1992).
 ACQUAINTANCE RAPE VICTIMS 651

in a rape case usually refers to physical injuries from the assault, torn cloth-
ing, or other evidence of a physical struggle. Contrary to popular belief,
however, physical injury from rape is uncommon.2 6 The U.S. Department
of Justice studied victims admitted to hospital emergency rooms for rape,
a population that one would assume suffers from more serious and numer-
ous physical injuries than victims not admitted to emergency rooms after
rape. Sixty-eight percent of these admitted emergency room rape victims
suffered no nongenital physical injuries, 26 percent suffered mild nongeni-
tal physical injuries, only 5 percent suffered moderate nongenital physical
injuries, and a mere 0.02 percent suffered severe nongenital physical inju-
ries.27 Even genital physical injuries are rare, as most rape victims do not
suffer the kind of genital trauma that hospital staffs can detect.2 8
Another type of corroborative evidence might be torn clothing or other
evidence of a serious physical battle between the assailant and the victim.
Most rapes, however, do not involve a fight that would produce this kind
of evidence. Most rapists, particularly acquaintance rapists, are able to sub-
due their victims with verbal coercion, alcohol, and pinning and need not
resort to overt physical violence.29 Many victims also become frozen with
fear once an attack begins, which prevents physical resistance and makes a
rapist's physical force unnecessary.3 0
The assumption behind cautionary instructions in rape cases is that ju-
rors are ordinarily biased in favor of an alleged rape victim and so should be
cautioned against this natural inclination. As Hale explained, in rape cases,
"the heinousness of the offense many times [would] transport the judge and
jury" to convict. 3 1 Although Hale's admonition is relevant to black on white
stranger rapes where an American judge and jury may be transported to
hasty conviction, in most rape cases-which are intraracial and committed
by acquaintances-social science indicates that jurors are unsympathetic to

26. Linda E. Ledray, U.S. Department ofJustice, Sexual Assault Nurse Examiner (SANE)
Development and Operation Guide 69-70 (1999) (collecting studies).
27. Id.

28. Id. at 70.

29. Heather Karjane, Bonnie S. Fischer & Francis T. Cullen, U.S. Department ofJustice,
Campus Sexual Assault: How America's Institutions of Higher Education Respond 82, 85
(2002).

30. Michelle J. Anderson, Reviving Resistance in Rape Law, U. Ill. L. Rev. at 994 n. 260
(1998) [hereinafter Reviving Resistance].
31. Hale, supra note 17, at 636.
652 NEW CRIMINAL LAW REVIEW I VOL. 13 1 NO. 4 FALL 2010

the victim, scrutinizing her behavior to excuse the defendant's behavior.3 2

Cautionary instructions warning juries to evaluate the victim's testimony
carefully in light of her "emotional involvement" in the crime do not miti-
gate societal bias in favor of rape complainants. Instead, such cautionary
instructions reflect and aggravate societal bias against rape complainants.
Therefore, the scientific data indicate that most rape victims not only do
not promptly complain, they do not ever complain to police or other legal
authorities of having been sexually victimized. Corroborative evidence of
sexual assault-such as torn clothes or injuries-is not only uncommon, it
is downright rare. Instead of exhibiting a bias in favor of rape victims that
jurors need to be cautioned against, jurors tend to be biased against rape
victims, and traditional cautionary instructions in rape cases only exacer-
bate that bias.
Legal scholars and others have criticized the prompt complaint require-
ment, corroboration requirement, and cautionary instructions in the crimi-
nal law of rape. As a result, these three doctrines have eroded steadily. South
Carolina continues to mandate prompt complaint, but only for spousal
sexual offenses.33 Only three states require corroboration: Texas requires
corroboration, unless the complainant makes a prompt outcry to authori-
ties, New York requires corroboration when a complainant's mental inca-
pacity forms the basis of her nonconsent, and Ohio requires corroboration
for the crime of sexual imposition. 4 Less than ten states require cautionary
instructions when there is no corroboration of an alleged rape, but at least
half of state codes prohibit judges from issuing these instructions.35 Because
the doctrines are based on faulty assumptions, legislatures in the remaining
states should continue to reform their statutes by entirely banishing the
prompt complaint requirement, corroboration requirement, and caution-
ary instructions to enhance rape law's fairness.

32. Gary LaFree, Rape & Criminal Justice: The Social Construction of Sexual Assault
217-18 (1989): explaining that juries were less likely to convict the defendant of rape if the
victim engaged in such non-gender-conforming behavior as leaving home without a male,
hitchhiking, walking outside alone, engaging in sex outside of marriage, working in "dis-
reputable occupations," or engaging in traditionally male activities like riding motorcycles
or spending time at bars.
1 3 -6i 5 (B) (West 2003).
33. S.C. Code Ann. 16-
34. N.Y. Penal Law 1330.J6 (McKinney 2004); Ohio Rev. Code Ann. § 29 07 .06(B)
(West 004); Tex. Crim. Proc Code Ann. § 38.07(a) (Vernon 2004).
35. Legacy, supra note so, at 974-77.
 ACQUAINTANCE RAPE VICTIMS | 653

III. RESISTANCE REQUIREMENT"

Rape law has traditionally emphasized a woman's physical resistance to

evaluate both her lack of consent and the defendant's use of force. At com-
mon law, the state had to prove beyond a reasonable doubt that the woman
resisted her assailant to the utmost of her physical capacity to prove that an
act of sexual intercourse was rape. The movement from the common law's
utmost resistance requirement to today's general absence of a formal resis-
tance requirement has not been a linear historical progression. However,
a rough chronology of the evolution of resistance in rape law reveals how
resistance has remained a standard of model behavior against which courts
have evaluated women's actions, and how resistance has remained relevant
to the two crucial issues in proving rape-nonconsent and force.
The utmost resistance requirement mandated that a potential rape vic-
tim must struggle to the utmost of her physical capacity.37 If a woman did
not resist the rape to the utmost of her physical capacity, she was not raped.
The Wisconsin Supreme Court applied the utmost resistance requirement
in the 1906 case of Brown v. State. The woman in Brown testified:

I tried as hard as I could to get away. I was trying all the time to get away
just as hard as I could. I was trying to get up; I pulled at the grass; I
screamed as hard as I could, and he told me to shut up, and I didn't, and
then he held his hand on my mouth until I was almost strangled."

The Wisconsin Supreme Court overturned Brown's conviction because the

woman had not adequately resisted him. The court stated that the victim
only once said, "Let me go," and that her screams were "inarticulate."39 The
court concluded that the woman's failure to resist physically with "hands and
limbs and pelvic muscles" required the reversal of Brown's conviction.4 0
The utmost resistance requirement eventually came under scrutiny be-
cause of its harmful effect on victims. Some states began to require that
women exert only "earnest" resistance to establish that an act of sexual

36. This section derives from Reviving Resistance, supra note 30.
37. Moss v. State, 45 So. zd. 125, 126 (Miss. 1950): "[A] mere tactical surrender in the face
of assumed superior physical force is not enough ... resistance must be unto the uttermost."
38. See, e.g., Brown v. State, io6 N.W 536, 537 (Wis. 1906).
39. Id. at 538.
40. Id.
654 NEW CRIMINAL LAW REVIEW I VOL. 13 1 NO. 4 FALL 2010

intercourse was without consent and by force.' Less than a handful of

states maintain an earnest resistance requirement in their rape statutes.4 2
In rejecting the utmost and earnest resistance requirements, other jurisdic-
tions require only "reasonable" resistance on the part of the rape victim. 3
Under this standard, the woman is not required to resist if she reasonably
believes that resistance would be useless and would result in serious bodily
injury." Less than ten states retain a reasonable resistance requirement in
their statutes today.45
Many other states eliminated the formal resistance requirement alto-
gether, concluding that prosecutors should be able to establish that a rape
occurred even in the absence of any resistance by the woman. The Model
Penal Code has also eliminated resistance as a legal prerequisite for a rape
conviction. The majority of U.S. jurisdictions do not mention resistance
in the statutory language describing rape. At least six other states explic-
itly note in their criminal codes that physical resistance is not required to
substantiate a rape charge. 6 Unfortunately, even in these states, the formal
elimination of a resistance requirement from codified law has often been a
victory more apparent than real. In practice, statutory reform has not obvi-
ated the legal significance of physical resistance. A few states' codes provide
insight into how courts approach evidence of resistance, even when it is not
formally required. The Iowa Criminal Code, for example, states:

It shall not be necessary to establish physical resistance by a participant in

order to establish that an act of sexual abuse was committed by force or
against the will of the participant. However, the circumstances surrounding
the commission of the act may be considered in determining whether or
not the act was done by force or against the will of the other."

41. See, e.g., Susan Estrich, Rape, 95 Yale L.J. 1087, 1123-24 (1986).
42. See, e.g., Ala. Code 13A-6-60(8), -61(i) (1994); Or. Rev. Stat. 163.305(1), .375(6) (5990
& Supp. 1996); W Va. Code 61-8B-s(1)(a), -8B-2(a)-(b)(i) (1992 & Supp. 1997).
43. Estrich, supra note 41, at 1131.
44. See, e.g., Satterwhite v. Commonwealth, ii S.E.2d 820 (Va. 1960).
45. Reviving Resistance, supra note 30, at 966.
46. See, e.g., Alaska Star. I. 4 1.4 70(8)(A) (Michie 1996); Fla. Stat. Ann. 794.on(i)(a)
(West 1998); Iowa Code Ann. 709.5 (West 1993); Ky. Rev. Ann. 510.010(2) (Michie 1996);
Me. Rev. Stat. Ann. Tit. 17-A §2 51(E) (West 1993 & Supp. 1997); Ohio Rev. Code Ann.
29 0 7 .02(C) (Anderson 1996).
47. Iowa Code Ann. 709.5.
 ACQUAINTANCE RAPE VICTIMS 1 655

Therefore, although resistance is not required for a conviction, the lack of

resistance may determine whether an act of intercourse occurred without
consent and by force. Even in the absence of a formal resistance require-
ment, many courts continue to define force and nonconsent in terms of
the woman's resistance. Although women are no longer required to resist
to the utmost according to statutory law in any jurisdiction, the working
definitions of force and nonconsent still often make a woman's physical
resistance a legal necessity.
One reason that only 13 percent of rape victims physically resist their
sexual attackers18 is that they have been warned that fighting back will re-
sult in their own serious bodily injury or death. A number of rape victims
have testified in rape trials that they had heard and believed this warning.
As one rape victim said: "I remember talking with people about rape and
they always said not to resist . . . that a female could be killed, beaten, or
mutilated. I didn't want that to happen."" Many police departments have
explicitly discouraged women from active, physical resistance, and instead
encouraged women to employ "passive resistance" and to do "what you
were taught to do as girls growing up." 0
For women to do what they were taught to do as girls-to remain
passive in the face of a sexual attack-all but ensures rape completion.
Contrary to popular belief, passivity does not protect women from being
raped or from suffering serious physical injuries beyond the scope of the
rape itself." Studies indicate that, because rapists seek to perpetrate harm
rather than to be harmed, they can be deterred by a woman's active, physi-
cal resistance.52 If a woman fights back and injures the rapist, he may also
choose not to assault another woman again. Resistance can thus deter rape
both specifically and generally. In addition to helping to deter rape, active
resistance may decrease the psychological damage a woman experiences

48. Bureau ofJustice Statistics, Highlights from 20 Years of Surveying Crime Victims 30
(1993).
49. Ann Burgess & Lynda Holmstrom, Coping Behavior of the Rape Victim, 133 Am.
J. Psychiatry 413, 416 (1976): quoting rape victim.
50. Nancy Gager & Cathleen Schurt, Sexual Assault: Confronting Rape in America 65
(1976): quoting police officer from Washington, D.C.
51. Py Bateman, Let's Get Out from Between the Rock and the Hard Place, I J.
Interpersonal Violence 111 (1986).
52. Gary Kleck & Susan Sayles, Rape and Resistance, 37 Soc. Probs. 149 (1990).
656 | NEW CRIMINAL LAW REVIEW I VOL. 13 1 NO. 4 | FALL 2010

from sexual attack, even if the rape is completed." Women who fight back
blame themselves less for having been raped." They are less depressed and
less suicidal afterward, and ultimately, they recover from the trauma of rape
more quickly."
A rape victim's resistance to a sexual attack should not be required by
rape law, but rape reform cannot stop there. The wisdom of the com-
mon law is that, where present, a woman's resistance expresses much about
whether an act of sexual intercourse occurs without consent and by force.
The folly of the common law is the notion that a woman's resistance should
be evaluated against an ideal standard. Women, like men, react in un-
predictable ways under conditions of psychological and physical abuse. A
woman's actions during the trauma of sexual attack cannot be fairly mea-
sured against any model of behavior.
The solution is that resistance cannot be necessary to obtain a convic-
tion, but it should be sufficient. A woman's verbal or physical resistance
should each be sufficient to prove nonconsent and force in a rape prosecu-
tion. The law should value women's verbal and physical resistance without
penalizing those women who, for any number of reasons, do -not resist.
This new law would break cleanly from a history of judging women's resis-
tance against an ideal standard.

IV. CHASTITY REQUIREMENT 56

The early English common law of rape focused on lost virginity. Recall that
Henrici de Bracton explained:

When therefore a virgin has been so deflowered and overpowered against

the peace of the lord the King, forthwith and whilst the act is fresh, she
ought repair with hue and cry to the neighboring vills, and there display to

53. Reviving Resistance, supra note 30, at 987-90.

54. Grace Galliano et al., Victim Reactions During Rape/Sexual Assault: A Preliminary
Study of the Immobility Response and its Correlates, in Patricia Easteal ed., Without
Consent: Confronting Adult Sexual Violence io8 (1993).
55. Bonnie L. Katz & Martha R. Burt, Self Blame in Recovery from Rape, in Ann
Wolbert Burgess ed., Rape and Sexual Assault II, passim (1988).
56. This section derives from a previously published article by this author: From Chastity
Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70 Geo.
Wash. L. Rev. 51(2002) [hereinafter Chastity Requirement].
 ACQUAINTANCE RAPE VICTIMS | 657

honest men the injury done to her, the blood and her dress stained with
blood, and the tearing of her dress, and so she ought to go to the provost
of the hundred and to the searjeant of the lord the King, and to the coro-
ners and to the viscount and make her appeal at the first county court.

At trial, the loss of the complainant's virginity remained a key issue. In the
case of the gang rape, for example, punishment of the first man who raped a
virgin differed from that meted out to the second or third man. The rule was
explained thusly: "to deflower a virgin and to have connection with her after
she has been deflowered, the same punishment does not follow each act."1
Even after a focus on virginity waned, rape law traditionally insisted that
the sexual history of a woman who alleged that she was raped was relevant
to the truth of her allegation." A chaste woman was considered more likely
to have resisted the defendant's sexual advances and to have lodged a le-
gitimate claim of rape." By contrast, an unchaste woman was considered
more likely to have succumbed willingly to the defendant's sexual advances
and to have lied about it later.60 Courts presumed that if a woman was un-
chaste, she had broken societal mores already and so was significantly more
likely to continue to defy those mores by lying as a witness under oath.'
Embedded within rape law, therefore, was an informal, though powerful,
normative command that women must maintain an ideal of sexual absti-
nence to obtain legal protection, an implicit chastity requirement.
This chastity requirement derived from a distorted normative vision of
consent to sexual intercourse that was ingrained in rape law. Historically,
rape law portrayed consent to sexual intercourse as a kind of temporally
unconstrained permission that could be imprecise regarding act and even
transferable to other people. Consent to sexual intercourse under certain
circumstances lacked temporal constraints: at common law, a woman could

57. Bracton, supra note ii, at 481-93.

58. As the Illinois Supreme Court expldined in 1954, "In order to show the probability
of consent, the general reputation of prosecutrix for immorality and unchastity was of ex-
treme importance and may be shown. The underlying thought is that it is more probable
that an unchaste woman would assent to such an act than a virtuous woman." People v.
Fryman, 22 N.E.2d 573, 576 (Ill. 1954).
59. Chastity Requirement, supra note 56, at 69-80.
6o. Id.
61. Leon Letwin, "Unchaste Character," Ideology, and the California Rape Evidence
Laws, 54 S. Cal. L. Rev. 35, 46 (1980): noting theory that "a moral flaw in one area of her
character (sexual laxity) reflected on other aspects of her character (e.g., honesty) as well."
658 | NEW CRIMINAL LAW REVIEW I VOL. 13 NO. 4 FALL 2010

not accuse her husband of raping her. Vows given at the marital altar meant
that a woman legally consented to her husband's sexual advances for the
rest of her life.6 2 In other words, once a woman lost her chastity to her hus-
band, his sexual transgressions against her were no longer rape.
Consent was also often thought to be imprecise as to act: consent to
nonpenetrative sexual intimacies with a man meant functional consent to
sexual intercourse with him. Once a woman had engaged in other sexual
behavior with the defendant, courts became sympathetic with the argu-
ment that he had every reason to believe that she consented to sexual inter-
course with him. As the Iowa Supreme Court put it in 1911, a complainant's
previous "voluntary sexual relations with the defendant, may and should
have been considered as substantive proof of the fact that, whatever the act
done, it was with the consent of the prosecutrix." 63 Consent was also, in
practice and effect, transferable to other parties: If a woman consented to
sexual intercourse with men to whom she was not married, she was deemed
indiscriminate in her sexual life. As a result, her sexual consent lost a dif-
ferentiated and unique nature, and she was considered to have functionally
consented to sex with others.
In practice, a rape defendant was able to question a complainant in
detail about her prior sexual behavior, looking for evidence that she failed
to personify a model of sexual modesty. These questions allowed the defen-
dant to suggest that the complainant was routinely unchaste and "asking
for it" on the night in question. Questions included: "Isn't it true that you
have acted lewdly with other men in the late hours at bars when you were
in a drunken state?"" "Isn't it true that you have been known to kiss men at
parties?""5 "Isn't it true that you have had sexual intercourse many times be-
fore with a number of different men?" 66 Having been unchaste with other
men before was enough to suggest functional consent to sexual intercourse
with the defendant himself.

62. Nancy Cott, Public Vows: A History of Marriage and the Nation 60--61 (2000).
63. State v. Johnson, 133 N.W. us, u6 (Iowa 19u1).
64. Frady v. State, 90 S.E. 2d 664, 665 (Ga. 1955): "[Defense] counsel [will] be permitted
to cross-examine her thoroughly as to any prior act of lewdness with the accused and with
other men."
65. Satterwhite v. State, 23 S.W 2d 356, 361 (Tex. Crim. App. 1929): asking complainant
about kissing men and attending parties with alcohol.
66. People v. Biescar, 275 P. 851, 854 (Cal. Dist. Ct. App. 1929): holding that cross-
examination of a complainant about sexual intercourse with other men was appropriate.
 ACQUAINTANCE RAPE VICTIMS | 659

This traditional conception of consent to sexual intercourse-tempo-

rally unconstrained permission that was nonspecific as to act and trans-
ferable to others-shaped the chastity requirement in rape law. The law
often required a woman to be sexually virtuous, engaging in no significant
sexual behavior outside the scope of marriage, before it would protect her
if she were raped (by someone other than her husband). Women heard the
rules: If you want the criminal law to vindicate you if you are raped, you
better have led an unsullied sexual life. By having been unchaste with the
defendant or others before, you assumed the risk that men would sexually
violate you.
About a quarter of a century ago, rape shield laws emerged on the legal
landscape to curtail the excesses of the chastity requirement. They circum-
scribed defendants' abilities to cross-examine rape complainants about
their sexual histories and to proffer evidence on the same matter. In the late
1970s and early 198os, almost all jurisdictions in the United States adopted
some form of rape shield statute. Legislators concluded that it was illogical
to assume that the complainant consented to sexual intercourse with the
defendant, or was more likely to lie under oath, simply because she had
previously consented to sexual intercourse with someone else.
Rape shield laws, however, have failed to protect women fully from the
harsh restraints of the chastity requirement. Although most rape shield laws
appear to bar the admission of a rape complainant's sexual history except
under limited and carefully defined circumstances, their exceptions rou-
tinely gut the protection they purport to offer. For example, U.S. Federal
Rule of Evidence 412 states that evidence to prove a rape complainant's
"other sexual behavior" or "sexual predisposition" is inadmissible, except:
(1) when it is offered "to prove that a person other than the accused was the
source of semen, injury or other physical evidence," (2) when it is offered
to prove consent and it consists of "specific instances of sexual behavior
by the alleged victim with respect to the person accused," or (3) when the
exclusion of the evidence "would violate the constitutional rights of the
defendant.""7 The first exception-the admission of evidence to prove that
a person other than the accused is the source of semen or injury-is crucial
because it may explain the physical evidence of sexual penetration or force
had another source other than the defendant.

67. Fed. R. Evid. 4 12(b)(i)(C).

660 | NEW CRIMINAL LAW REVIEW I VOL. 13 | NO. 4 FALL 2010

However, the second and third exceptions to the federal shield (and
to analogous state shields), are not appropriate, as they render the armor
defective. The second exception-the admission of sexual history with the
defendant-cracks the shield because men with whom the complainant
has been previously intimate commit 26 percent of all rapes.6" The third
exception-the admission of evidence when its exclusion would violate
the defendant's constitutional rights-often crumbles what is left of the
shield because courts routinely misinterpret and exaggerate the scope of
the defendant's constitutional right to inquire into the complainant's sexual
history, particularly when the complainant is deemed promiscuous with
the defendant or others.' Despite the passage of rape shield laws, then,
many of the sexual norms behind the chastity requirement continue to
control courts' evaluations of the relevance of a complainant's sexual his-
tory today.
Rape shield laws were designed to protect rape victims from the public
exposure of their private sexual lives at trial. What became Federal Rule
of Evidence 412, for example, was passed as a bill entitled the "Privacy
Protection for Rape Victims Act."70 Floor debates focused on how trau-
matic it was for women to have to discuss their private sexual lives in pub-
lic, rather than on the unfairness of measuring rape complainants against
a yardstick of sexual morality. A concern for sexual privacy paved the way
for courts in the future to look with disdain on those women who fail to
keep their sexual lives private. It allows courts today to impose a promiscu-
ity prohibition on those rape complainants who have substantial reputa-
tions for sexual activity. Retrograde notions of sexual propriety thereby
continue to confound rape cases in which the complainant's sexual history
is disputed.
Rape law has been wrong to help create, perpetuate, and enforce moral
judgments on women's sexual lives. To do so is unrelated to the law's truth-
seeking function. Women deserve to have the criminal law vindicate them
when they are raped, even if they have been previously unchaste or promis-
cuous with the defendant or with others. By engaging in significant sexual
behavior, a woman should not have to assume the risk that men will violate

68. Ronet Bachman & Linda Saltzman, U.S. Department of Justice, Violence Against
Women, Estimates from the Redesigned Survey 3, 6 (995).
69. Chastity Requirement, supra note 56, at 86-94.
70. 124 Cong. Rec. 36, 256 (1978).
 ACQUAINTANCE RAPE VICTIMS | 661

her sexual autonomy. It should not matter whether a woman is a virgin

or a so-called "whore" before the law: she deserves to be treated with legal
respect, regardless of her sexual past. The law should reject both the ancient
chastity requirement and the modern promiscuity prohibition and replace
them both with a sexuality license, one that affords women the ability to be
sexual without subjecting themselves to negative legal consequences when
they are raped.
Foundational to this sexuality license is a better normative vision of
consent to sexual intercourse. Consent is specific as to act, temporally con-
strained, and not transferable to another person. Examples illustrate each
of these principles. A woman may choose to engage in numerous acts of
sexual intercourse for years, and then pledge to become a "Born-Again
Virgin." A girl may choose to engage in oral sex with her boyfriend, but not
vaginal intercourse. A woman may choose to engage in sexual intercourse
with four different men, and not the fifth. Consent to sexual intercourse is,
therefore, temporally constrained permission that is specific as to act and
nontransferable to other people.
I propose a New Rape Shield Law that would admit evidence of the
complainant's sexual conduct and sexual communication with the defen-
dant on the instance in question to shed light on the issue of consent on
the instance in question. It would, however, bar direct or opinion evidence
of the complainant's sexual conduct or sexual communication prior or sub-
sequent to the instance in question. This evidentiary ban would include
conduct and communication with third parties as well as conduct and
communication with the defendant.
There would be three important exceptions to what would otherwise
be a general ban. First, like Federal Rule of Evidence 412, evidence that
might prove that there is an alternative source for the semen, pregnancy,
disease, or injury of the complainant would be admissible under the stat-
ute. Second, evidence of prior discussions between the complainant and
the defendant regarding how consent will be conveyed between them and.
evidence of negotiations between the complainant and the defendant re-
garding specific sexual acts that are at issue would also be admissible. This
kind of evidence may illuminate what the complainant consented to on the
instance in question as well as what the defendant reasonably believed that
she consented to on the instance in question. Third, evidence that might
prove that the complainant is biased or had a motive to fabricate a charge
of rape would also be admissible under the New Rape Shield Law. Under
662 NEW CRIMINAL LAW REVIEW I VOL. 13 | NO. 4 FALL 2010

the U.S. Constitution, the defendant must be given the opportunity to

prove that the complainant is biased." Other than these three exceptions,
evidence of a complainant's prior sexual conduct or sexual communication
with third parties or with the defendant would be excluded.
This law would decrease substantially defendants' opportunities to
encourage the jury to evaluate the complainants' pasts against a model
of sexual purity. It would narrow admissible evidence to that which is
relevant and nonprejudicial, and thus helps the truth-seeking function
of the law.

72
V. THE MARITAL RAPE EXEMPTION

At least since the seventeenth century, rape law has included a formal mari-
tal rape exemption.7 This exemption meant that men could not be charged
1

with raping their wives, and if they were, marriage provided them with
a complete defense. The most enduring justification for the marital rape
exemption under English common law was the notion that the marriage
contract granted women's ongoing consent to sexual activity with their
husbands.
Beginning in the 1970s, feminist reformers in the United States set their
sights on this antiquated rape doctrine and worked to eliminate it from
law. Many people believe that reformers won the battle against the mari-
tal rape exemption. This belief is, unfortunately, incorrect. In the United
States, about half the states retain marital immunity in one form or an-
other. Although marital immunity for the specific crime of forcible rape
is dead, immunity for other sexual offenses thrives. For example, some
states grant marital immunity for sex with a wife who is incapacitated or
unconscious and cannot consent.7 1 Other states grant marital immunity for
sexual offenses unless requirements such as prompt complaint, extra force,

71. Davis v. Alaska, 415 U.S. 308, 309 (974).

72:. This section derives from a previously published article by this author: Marital
Immunity, Intimate Relationships, and Improper Inferences: A New Law on Sexual Offenses
by Intimates, 54 Hastings L.J. 1465 (2003).
73. Hale, supra note 17, at 629.
74. See, e.g., Alaska Stat. § xx.41.4zo(a)(3) (Michie 2oo): marriage is defense to second
degree sexual assault if the victim is incapacitated or unaware the sexual act is being com-
mitted.
 ACQUAINTANCE RAPE VICTIMS 1 663

separation, or divorce are met." The law still makes it harder to convict
men of sexual offenses committed against their wives. In so doing, the law
in these jurisdictions degrades married women and affords men who sexu-
ally assault their wives an unwarranted preference.
Contrary to popular belief, wife rape tends to be more violent and psy-
chologically damaging than stranger rape. Abolishing the preference that
men enjoy when they rape their wives is crucial to redressing the harms
caused by wife rape. At a minimum, the feminist reform agenda begun in
the 1970s must be completed. The law must eliminate marital immunity
that continues to contaminate sexual offense statutes. Because discrimina-
tion against married women who are sexually assaulted by their husbands
is indefensible, law should provide no favorable treatment to men who
sexually assault their wives. Formal neutrality in rape law on. the marital
status of the complainant and the defendant-affording no preference to
married men who rape their wives-is the bare minimum the law must
have to claim fairness to women.
However, formal neutrality is not enough. Formal neutrality fails to
solve a deeper and more intractable problem. The marital rape exemption
did more than merely protect men from being prosecuted for raping their
wives. It presaged the devastating impact that a prior sexual relationship
between a defendant and a complainant has on a claim of rape today.
Substantial bias against sexually active women who are raped by their in-
timates takes the form of a common but improper inference of consent to
the sex alleged to have been rape based solely on the existence of a prior
intimate relationship between the parties. The improper inference of ongo-
ing consent in sexual relationships is a doctrinal problem that affects rape
by intimates, regardless of the marital status of the parties.
Jurisdictions should adopt a new law on sexual offenses to correct the
improper inference of ongoing consent. This new law would cover sexual
conduct between the defendant and the complainant in marriage, cohabi-
tation, dating, or other circumstances. The law should indicate that a prior
sexual relationship between the parties, whether in marriage, cohabitation,
dating, or another context, does not provide the defendant with a defense

75. See, e.g., Haw. Rev. Stat. § 707-700 (2001) note in 2002 Haw. Laws Act 36 (H.B.
2560) (West 2002): "married" does not include spouses living apart; Kan. Stat. Ann. § 21-
3501 (zoo): person is not considered spouse if couple is living apart or either spouse has
filed for separation or divorce or for relief under protection from abuse act.
664 NEW CRIMINAL LAW REVIEW I VOL. 13 NO. 4 FALL 2010

to the charged sexual offense. This provision would also declare that the
complainant's consent on the instance in question may not be inferred
based solely on her consent to the same or different acts with the defendant.
on other occasions.
Legally declaring that a prior sexual relationship between the defen-
dant and the complainant-in marriage, cohabitation, dating, or other
circumstances-shall not be a defense to a sexual offense will not end the
occurrence of sexual offenses by intimates. It will, however, end the mar-
riage between an intimate relationship and the improper inference of ongo-
ing consent to sexual intercourse. Because the ideology of ongoing consent
has bullied the legal interpretation of intimate relationships in rape cases
for generations, such a divorce is long overdue.

CONCLUSION

The historical requirements of prompt complaint, corroboration, caution-

ary instructions, resistance, and chastity have greatly harmed those raped
by acquaintances and intimates. Moreover, the marital rape exemption
provided the theoretical underpinnings to two damaging notions: (I) that
familiar relationships between the parties mean that rape is not possible,
not harmful, or not legally cognizable, and (2) that a woman assumes the
risk of sex because of a prior relationship with the defendant. These are
devastating notions for acquaintance rape victims. The next generation
of rape law reform has to abolish the remnants of the requirements for
prompt complaint, corroboration, and cautionary instructions. It has to re-
formulate the legal import of verbal and physical resistance and allow each
to weigh fairly for the complainant without holding her behavior against
an ideal standard. It has to enhance rape shield laws to narrow the admis-
sibility of prejudicial evidence of a complainant's sexual history. Finally, it
has to create jury instructions that put to rest the assumptions of ongoing
consent in marital, intimate, or acquaintance relationships.