§ 33.03 SOCIETAL ATTITUDES REGARDING RAPE

• Jurisdiction: United States

§ 33.03. Societal Attitudes Regarding Rape³⁴

[A] Why is Rape a Crime?: Social Harm of Rape

[1] The Original Perspective

The law of rape is rooted in ancient patriarchal concepts of property.³⁵ A virgin daughter was a valuable commodity owned by her father; a wife was a chattel of her husband. As a consequence, rape was treated as a property offense. For example, according to one Biblical passage, the punishment for rape of a virgin daughter was 50 shekels, to be paid to her "owner" (the father), and forced marriage to the victim.³⁶

The marital exemption, i.e., the doctrine that a husband is legally incapable of raping his wife, is a manifestation of the view that the husband "owned" sexual rights over his wife. According to this view, the husband had the right to sexual relations with his wife whenever he chose, regardless of her wishes.

[2] Modern Perspective

Once Anglo-American society moved away from the patriarchal property-oriented view of rape, lawmakers and scholars needed to provide a modern explanation of the loss suffered by rape victims, and thus identify the underlying social harm that the criminal offense of rape is intended to deter, condemn, and punish for its occurrence. Generally speaking, rape is viewed today as a crime of violence, but also as a privacy/autonomy offense.

The conception of rape as a crime of violence is easy to understand. Any rape involves, at a minimum, a battery of the victim.³⁷ When it is committed forcibly, it has all the earmarks of an aggravated battery. According to one view, the social harm of rape is not the sex act itself, but the way in which it is executed: violently. One scholar has gone so far as to claim that rape should be treated "as a variety of ordinary (simple or aggravated) battery because that is what rape is."³⁸

However, this is an inadequate view of the offense. Rape surely involves more than bruises or breaks to the body. The offense of rape prohibits nonconsensual invasion of a very specific part of the body, the invasion of which is especially apt to "cause emotional, relational, hedonic, and dignitary injuries."³⁹ Rape is a sexual invasion of the victim's body, in which her "private, personal inner space" is violated without her consent.⁴⁰ In this sense, then, the act of rape denies the victim her autonomy⁴¹ by abridging her right to determine when, with whom, and how she will have sexual intimacy.⁴² Perhaps as significantly, rape is a hostile, humiliating, degrading act of sexual domination by the perpetrator of the victim.⁴³

This latter point leads to another matter worth considering, namely that rape—at least to the extent that it is defined in terms of what a male does to a female, rather than as a gender-neutral crime—can be perceived as a form of discrimination, specifically sexual discrimination.⁴⁴ Under this view, the crime involves "a use of asymmetric power," in that "some kinds of people (one such kind being men) enjoy an advantage in the relevant sort of power over other kinds (e.g., women) that allows some of them to impose sexual demands with reasonable expectations of securing compliance with them."⁴⁵ A number of scholars have argued, as a result, that it might be better to treat some forms of sexual misconduct as a civil wrong rather than a crime.⁴⁶

[B] Perceptions of the Seriousness of the Offense

[1] In General

Although rape is considered a serious offense in all states, in terms of public perceptions, there is empirical evidence that not all rapes are considered equally serious. Indeed, even if the force used in a sexual assault remains constant, the perceived character and background of the victim of the rape, and her relationship, if any, to the rapist, may impact societal (and thus juror) attitudes regarding the severity of the crime.

[2] Blaming the Victim

Historically, both men and women have tended to attribute some blame for a rape to the victim, even when the circumstances of the assault do not suggest any causal responsibility on her part. To some extent, victim-blaming occurs with all offenses. One explanation for this phenomenon is that people...