A contemporary look at the effects of rape law reform: how far have we really come?

• Author: Bachman, Ronet

1. INTRODUCTION

   The reform of state and federal rape statutes has been the product of a fragile alliance among feminist groups, victim's rights groups, and organizations promoting more general "law and order" themes.(1) As can be expected from such a diverse coalition, the intended goals of rape law reform have not always been clear, and different reform groups have had somewhat different agendas. For example, feminist groups were largely motivated by ideological issues. These organizations focused on societal perceptions about rape and rape Victims.(2) Such perceptions included: (a) the belief that rape was not a serious and violent offense; (b) the notion that acquaintance rapes or rapes perpetrated by intimates (3) were less serious than and different from "real rapes"--those that fit a cultural stereotype involving a stranger jumping out from a place of hiding and violently raping a physically resisting woman; and (c) the various "rape myths" which suggested, among other things, that rape victims were somehow partially to blame for their own victimization. (4) For feminist groups, then, a very important intended consequence of rape law reform was largely symbolic and ideological--to educate the public about the seriousness of all forms of sexual assault, to reduce the stigma experienced by victims of rape, and to neutralize rape myth stereotypes.(5)

   Different concerns motivated victim's rights and "law and order" groups. Their intentions were somewhat more pragmatic and instrumental. The problem with extant rape statutes for these groups was that, too frequently, rape offenders were not arrested for their crime because many victims were reluctant to report the offense. These groups also believed that many offenders arrested for rape were not convicted or were convicted of a less serious offense because frequently the victim rather than the offender was put on trial.(6) For instance, the defense would use the victim's own sexual history to question her lack of consent. Further, they perceived that many offenders who were convicted of rape or sexual assault did not receive prison sentences because the sexual assaulter was known to the victim, and that therefore the public did not view the victimization by an acquaintance or intimate as real rape.(7) In addition to changing the public's conceptualization of the crime of rape and of the victims of sexual assault, rape law reformers also intended to modify existing criminal justice practices.

   Although differing in emphasis, the impact of the symbolic and instrumental effects of rape law reform were intended to be complementary. Changes in public conceptions about what rape "really is" and who rape "really victimizes" were expected to lead to more reports of rape. Simultaneously, jurors were expected to become more sensitive to both the victimization and stigmatization of rape victims. Consequently, rape reports, arrests, convictions and rates of imprisonment (especially for "non-stereotypical" acquaintance rapes) were all expected to increase.(8)

   Significant questions still exist, however, regarding the extent to which the reporting and handling of rape cases has actually changed within the legal system subsequent to rape law reforms. That is, questions remain as to whether rape law reforms have actually produced the more instrumental public policy reform that their proponents envisioned. At least four important public policy questions exist. First, are victims of sexual assault more likely to report their victimization now than they were in the past? Second, has there been an increase in the number of rape arrests and convictions from pre- to post-reform years? Third, are those convicted of rape more likely to do some prison time? Finally, are non-stereotypical rapes being handled as seriously as those rapes which more closely approximate a stereotypical sexual assault by a stranger?

   Surprisingly, there has been little research to address these important public policy issues, and the results of the few studies which have been undertaken remain somewhat equivocal. Many of these studies find weak and inconsistent support for the assumption that rape law reform has had a significant impact on the criminal justice system's processing of rape cases. In Michigan, for example, where the first and most comprehensive reforms were implemented, researchers have found increases in the number of arrests and convictions for rape, but no change in the number of rapes reported to the police.(9) Statistics from other jurisdictions have shown even less of an impact for rape law reform. In fact, except for a few jurisdictions that experienced extremely zealous reforms, research has demonstrated that in the vast majority of jurisdictions, legal reforms have not been followed by significant increases in either the reporting of rape cases or the arrest and conviction probabilities for rape.(10)

   Horney and Spohn conducted the most recent and perhaps most extensive study to date to address these issues.(11) After evaluating the impact of rape law reforms on reports of rape and on the processing of rape cases in six urban jurisdictions, these authors pessimistically concluded that, "[o]ur primary finding was the overall lack of impact of rape law reforms.... [w]e have shown that the ability of rape reform legislation to produce instrumental change is limited."(12) While this study and others have provided important information regarding the effects of rape law reform in particular jurisdictions, they all have several limitations. Perhaps the foremost limitation is the fact that, except for Horney and Spohn, who investigated six jurisdictions, all the others have relied on single states or jurisdictions. The available knowledge base, therefore, is very restricted and precludes any general conclusion about the effects of rape law reform. In addition, all of the studies have confined their inquiries to data from the late 1970s or early 1980s, thereby leaving a large gap in our understanding about what has occurred with rape reporting and processing during the last decade. Finally, all of the above studies have examined changes in rape reporting and adjudication in isolation, not in comparison to other violent crimes.(13) Necessarily, one must examine rape in relation to other crimes of violence in order to control for extraneous factors, such as an increase in the general efficiency or punitiveness of the criminal justice system. These and other extraneous factors may be affecting the reporting and processing of all crimes, not simply the crime of rape. Only if the reporting and adjudication of rape increases relative to other violent crimes can any researcher attribute this trend to the influence of rape law reforms.

   For these reasons, it is clear that, in order to advance our understanding of the effects of rape law reforms, it is necessary to conduct a national accounting of the recent trends in rape reporting and adjudication relative to other crimes of violence. Horney and Spohn adopted this very position after their recent review of the rape reform Literature. "These empirical studies provide some evidence of the impact of rape law reforms in four jurisdictions but leave many unanswered questions about the nationwide effect of the reforms."(14)

   This Article both contributes to and extends the previous literature on the effectiveness of rape law reforms in this country. Using a number of national data sources, we investigate the degree to which there has been a change in three aspects of the rape adjudication process relative to two other crimes of violence-robbery and aggravated assault. We will address three questions regarding rape: (a) to what extent has reporting rape to the police changed from the 1970s to the present; (b) to what extent has the probability of going to prison for rape (conditioned on arrest) changed from the 1970s to the present; and (c) to what extent does the victim/offender relationship composition of rape victimizations reflect the composition of offenders going to prison for rape, and to what extent has this composition changed from the 1970s to the present? Specifically, has there been an increase in the number of "date" or "acquaintance" rape offenders who have been imprisoned?

2. Rape Law Reform

   Perhaps the most illuminating characterization of rape laws in this country was provided by Sir Matthew Hale, Lord Chief Justice of the King's Bench: "|rape is an accusation easy to be made, hard to be proved, and harder to be defended by the party accused though ever so innocent.'" (15) This concern with protecting men from false accusations of rape went beyond the "not guilty until proven innocent" standard, and led to arguments for nearly unlimited admissibility of evidence regarding the accused's character.(16) This, combined with cultural conceptions of rape and early rape laws, placed serious impediments on the adjudication of rape cases. (17) Such offender-bias affected the entire adjudication sequence of rape cases, from the victim's reporting of the attack to the state's prosecution of the event.

   Pressure from various organizations in the early seventies led to a growing societal awareness that rape laws in this country were antiquated at best.(18) This awareness, in turn, provided the impetus for the enactment of some form of rape law reform in all fifty states.(19) Michigan was the first state to modify its rape statute when it enacted a comprehensive criminal sexual assault law in 1974.(20) Several other states soon followed by reforming their own rape statutes. The reform of state rape statutes also had a "spill over" effect on procedural law, as evidenced by Congress' 1978 enactment of Rule 412 of the Federal Rules of Evidence.(21) This rule excluded from evidence all reputation and opinion testimony concerning a rape complainant's prior sexual conduct, but still allowed for the limited admissibility of evidence of a complainant's...