Gender, victimization, and evolving state standards: A study of New York and Michigan sexual assault legislation.

Author:Johnson, Ann

    Over the last forty years, state legislation on sexual assault has evolved. Some states have made changes through amendments while keeping some parts of the statute intact. (1) However, other states have stricken the former law entirely and drafted new statutes from scratch. (2) About one half of states have a semi-broad definition of rape whereas the other twenty-five states' rape statutes remain narrow in scope. (3) This article puts forth the argument that a broader definition of rape is more appropriate than a narrow one. Two states with different laws illustrate this contention: Michigan has a very broad definition of rape and New York has a very narrow definition of rape.

    To illustrate: Michigan's law would cover a circumstance in which a boy was raped as the same crime as if a female was vaginally raped, whereas New York's law would not. This work reviews the history and evolution of rape laws in Michigan and New York. This paper raises, but does not entirely cover, why New York is reluctant to adopt a gender-neutral statute.


    Rape has traditionally been regarded as a crime against community, family, and property. (4) Thus, rather than the law focusing on addressing the physical harm, violation, and psychological injury to the victim, the law has focused on the harm as damaging chastity and assurance of family lineage. (5) Consequently, as states drafted criminal codes after the post-colonial period, legislatures adopted narrow definitions of rape largely ignoring the trauma to the victim but focusing on vaginal penetration as the harm of the crime. (6) Thus, the only victims of rape would logically always be a woman. As society has evolved, more is understood regarding the personal and psychological damage to the individual caused by rape.


    Historically, a husband could not be charged with the rape of his wife because the marriage contract essentially gave the woman to the man in such a way that she could not retract her consent to sexual acts. (7) The first American case that recognized the idea of a marital exemption was the 1857 case of Commonwealth v. Fogerty, (8) which stated that "it would always be competent for a party indicted to show, in defence [sic] of a charge of rape alleged to be actually committed by himself, that the woman on whom it was charged to have been committed was his wife." (9) This rule was valid even if the couple was no longer living together. (10) Another notion was that with a marriage begins a unit so the couple is one person as opposed to separate people. (11) Remnants of this idea remain today in various incarnations, which will be explored herein. New York's marital exemption was reversed in the 1984 case of People v. Liberta, after the Court of Appeals determined that there was "no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales... are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny." (12) The movement for this change took hold in states in the 1970s; (13) for example, Nebraska changed its law in 1976. (14)

    However, New York has been relatively late to change sexual assault laws generally. For example, although the changes had essentially been made through the Liberta case, the criminalization of marital rape was not codified into New York law as "rape" until the relatively late amendments of 2003. (15) Moreover, as explained below in greater detail, questions remain regarding the State of New York's hesitancy to move forward with assault laws and why it is reluctant to codify gender-neutral concepts of rape.


    Currently, New York has defined thirteen separate sexual offenses, five of which may be charged in various degrees. (16) These crimes include: sexual misconduct, rape, criminal sexual act, forcible touching, persistent sexual abuse, sexual abuse, aggravated sexual abuse, course of sexual conduct against a child, female genital mutilation, facilitating a sex offense with a controlled substance, sexually motivated felony, predatory sexual assault, and predatory sexual assault against a child. (17)

    New York's rape statutes are as follows:

    A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person: (1) [b]y forcible compulsion; or (2) [w]ho is incapable of consent by reason of being physically helpless; or (3) [w]ho is less than eleven years old; or (4) [w]ho is less than thirteen years old and the actor is eighteen years old or more. (18) A person is guilty of rape in the second degree when: (1) being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or (2) he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act. (19) A person is guilty of rape in the third degree when: (1) [h]e or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old; (2) [b]eing twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or (3) [h]e or she engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent. (20) New York's statutory rape provisions are noted throughout each rape statute as well, as each one contains provisions related to the age of the offender and the age of the victim. (21)

    Rape in the first, second, and third degrees are all felony offenses, as are criminal sexual acts in the first, second, and third degrees. (22) They also fall under the same classes of felonies depending upon the degree of the offense with the same range of penalties depending upon whether the offense was violent. (23)

    1. A Critique of New York's Rape Law

    New York's rape law, however, has its limitations and does not cover the circumstances for forced oral or anal penetration as "rape," (24) and the law is heavily focused on traditional gendered notions of rape. (25) Thus, the reality of how persons are violated is not adequately acknowledged or prosecuted. (26) Advocates of rape law reform argue, however, that while "legislation does not provide" complete "solutions to problems" of rape law, legislation establishes a policy that the law supports the rape victim. (27) This policy, in turn, influences public attitudes toward the victim.

    New York's explanation of "sexual intercourse" is that it "has its ordinary meaning and occurs upon any penetration, however slight." (28) Accordingly, penetration of the female sexual organ is required for sexual intercourse to occur. Intercourse has been a necessary element for New York's rape statute; (29) therefore, oral and anal rape are not considered general "rape" under current New York law.

    Furthermore, a male-male sexual attack is not considered rape under the law. Any other type of sexual contact--including oral or anal conduct--is instead dealt with as a criminal sexual act, which has three separate degrees. (30) The degrees mimic the language of New York's rape statutes, except that "[a] person is guilty of criminal sexual act... [when h]e or she engages in oral sexual conduct or anal sexual conduct with another person...." (31) Thus, a male-male sexual attack would be dealt with under the criminal sexual act statute, but not the rape law.


    Michigan's rape law demonstrates a contrast to New York's rape law in statutory structure. In the 1970s, the women's movement in the United States gained traction. (32) Furthermore, during the 1970s the discourse around violent crime was high and state legislatures began taking actions in these matters by redrafting their criminal codes. (33)

    In 1974, the Michigan legislature drafted four degrees of criminal sexual conduct (CSC) to replace the previous rape law. (34) The degrees of sexual assault charges vary depending on whether sexual penetration or sexual contact and another circumstance has occurred. (35) This bill broke with tradition because Michigan used gender-neutral terms for both the victim and the perpetrator/actor. (36) According to the definition section of the statute, the actor is the one accused of committing the crime and the victim (non-gendered) is the person against whom the crime has been committed. (37) "The purpose of the new [criminal sexual conduct] statute was to codify, consolidate, define, and prescribe punishment for a number of sexually assaultive crimes under one heading." (38) This change in the Michigan Code was in part from the efforts of the anti-rape movement activists to desexualize rape that occurred as part of the...

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