TITLE

RAPE REFORM AND A STATUTORY CONSENT DEFENSE

AUTHOR(S)

Tchen, Christina M.

PUB. DATE

December 1983

SOURCE

Journal of Criminal Law & Criminology;Winter1983, Vol. 74 Issue 4, p1518

SOURCE TYPE

Academic Journal

DOC. TYPE

Article

ABSTRACT

This article examines the definition of rape and lack of consent in the rape statutes of states in the U.S. For the past three hundred years, rape has been defined as sexual intercourse by force and against the victim's will. The essential element distinguishing rape from non-criminal sexual intercourse was the victim's lack of consent. In order to convict a defendant of rape, the prosecution has been required to prove the subjective element of lack of consent through a number of objective criteria, including proof that the victim resisted the assailant to the utmost, that the victim cried out while being attacked, that the victim filed a complaint promptly, and that her testimony has been corroborated. Despite over twenty years of rape reform, the questions of how to define consent and how to use it in a reform statute are still unresolved. A variety of statutory models have been enacted throughout the country, but none of these formulations have adequately addressed all the concerns posed by the traditional common law. In order to rectify the misconceptions in the common law, rape reform statutes have attempted to focus on force or coercion as the key element of the crime; eliminate the use of implied consent and the resistance standard; and punish the defendant for his culpable actions, rather than the victim for failing to fight back.

ACCESSION #

17533042

 

Related Articles

• ECLECTICA. Grace, Kevin Michael // Report / Newsmagazine (National Edition);8/12/2002, Vol. 29 Issue 16, p24 

  Comments on laws relating to rape in a number of countries, in light of a column by Marianne Ward Reed in the 'Toronto Sun,' which discusses culture. Idea that there is a constituency among Pakistanis and other Muslims which supports honor rape; Sexual behavior of immigrants in Norway,...

• Mansplaining Rape. Eichelberger, Erika // Mother Jones;Nov/Dec2012, Vol. 37 Issue 6, p10 

  A timeline documents the history of the legal definition of rape, including the 13th century Saxon punishment for raping virgins, physician Samuel Farr's 1814 assertion that women would not conceive through rape, and the expansion of the U.S. Federal Bureau of Investigation's (FBI) definition of...

• Towards a Redefinition of the Mens Rea of Rape. POWER, HELEN // Oxford Journal of Legal Studies;Sep2003, Vol. 23 Issue 3, p379 

  Definitional problems in the law of rape prompted the recommendation by the Home Office Sex Offences Review Team (Setting the Boundaries: Reforming the law on sex offences, 2000) that the �defence� of mistaken belief in the victim's consent should be denied to defendants unable to show...

• Reforming Rape Laws. Roberts, Julian V.; Gebotys, Robert J. // Law & Human Behavior (Springer Science & Business Media B.V.);Oct1992, Vol. 16 Issue 5, p555 

  Almost all legislative evaluations and impact analyses in the area of rape reform have involved the U.S. This article examines the effects of rape reform legislation introduced in Canada in 1983. In that year the offenses of rape and indecent assault were replaced with three new offenses of...

• Two Steps Forward, One Step Back: Why the New UCMJ's Rape Law Missed the Mark, and How an Affirmative Consent Statute Will Put It Back on Target. Knies, Jennifer S. // Army Lawyer;Aug2007, Issue 411, p1 

  The article proposes a military sexual assault statute that aims to protect potential victims and potential offenders equally, and deter both allegations and the occurrence of sexual assault in the U.S. Armed Forces. Rape and sexual assault are criminal because they trespass against the bodily...

• TOWARD A CONSISTENT RECOGNITION OF THE FORBIDDEN INFERENCE: THE ILLINOIS RAPE SHIELD STATUTE. Ellis, David // Journal of Criminal Law & Criminology;Summer1992, Vol. 83 Issue 2, p395 

  This article addresses the validity of the purposes for which evidence of the alleged victim's sexual history may be used in Illinois, basing the evidence's admissibility on whether it relies on the propensity inference. The characteristics and structures of the Illinois rape shield statute were...

• WORSNOP v THE QUEEN: SUBJECTIVE BELIEF IN CONSENT PREVAILS (AGAIN) IN VICTORIA'S RAPE LAW. Larcombe, Wendy // Melbourne University Law Review;2011, Vol. 35 Issue 2, p697 

  The 2010 decision of the Victorian Court of Appeal in Worsnop v The Queen provides yet another example of rape law reform not achieving its intended effects. The Court held that a jury direction on the mental element of rape, introduced by the Crimes Amendment (Rape) Act 2007 (Vic), had not...

• TURNING GIRLS INTO WOMEN: RE-EVALUATING MODERN STATUTORY RAPE LAW. Oberman, Michelle // Journal of Criminal Law & Criminology;Summer94, Vol. 85 Issue 1, p15 

  This article reconsiders statutory rape laws in the light of evidence that adolescent girls are especially vulnerable to male sexual aggression. During the spring of 1993, a group of teenage boys who called themselves the Spur Posse combined adolescent competitiveness and sexual bravado to...

• TAKING SEXUAL AUTONOMY SERIOUSLY: RAPE LAW AND BEYOND. Schulhofer, Stephen J. // Law & Philosophy;Feb1992, Vol. 11 Issue 1/2, p35 

  The article focuses on sexual autonomy as a distinctive constituent of personhood and freedom to develop an alternative to proposals to reform the law of rape. It discusses the rape law's failure to protect women from coercion by violence and cites the factors that inhibit the attempts to...

Read the Article