Law and Human Behavi or, Vol. 9, No.

4, 1985
Rape and the Devalued Victim
David J. Giacopassi* and Karen R. Wilkinsont
Numerous jurisdictions have made changes in their rape statutes in recent years. Five modifications
that have commonly appeared in the amended rape legislations are abolition of capital punishment as
a sanction for rape, lowered sentence structure, a graduated continuum of offenses and penalties for
rape, the reformulation of rape statutes to a sex-neutral definition of participants, and a change in
terminology away from rape to such nomenclature as "criminal sexual conduct. " While the intent of
the legal reforms was to insure fairness, we contend that the unintended effect of many of these
changes is to trivialize the offense of rape and to devalue the victim.
I NTRODUCTI ON
Rape traditionally has been treated as a heinous crime with no culture sanctioning
its intrasocietal occurrence. The severe penalties and social opprobrium visited
upon offenders made rape along with murder and kidnapping the most serious of
common law offenses. The sexual violation of a female was seen as undermining
the family unit which, with its concomitant rights and responsibilities, was nec-
essary for a stable society. Therefore, rape was seen as an act that could not be
tolerated in a civilized society (Loh, 1980).
While rape continues to be seen as a serious criminal offense in twentieth
century America, the last quarter century has produced dramatic if not revolu-
tionary changes in the conceptualization and codification of rape as a criminal
offense. These changes have not always occurred in a consistent and uniform
fashion across the fifty states. Rather, a great many variations have appeared in
offense terminology, evidentiary requirements, penalty structure, necessary con-
ditions, and probative value of elements of the crime. While the intent of the legal
reformers was to insure fairness and equal protection of the law for all involved,
thereby correcting some of the more blatant abuses of past legislation, we contend
that the effect of many of these changes was to trivialize the offense of rape and
to devalue the victim.
* Department of Criminal Justice, Memphis State University, Memphis, Tennessee 38152.
t 1214 Blanchard, Flint, Michigan 48503.
367
0147-7307/85/1200-0367504.50/0 9 1985 Plenum Publishing Corporation
368 GIACOPASSI AND WI LKI NSON
The consequences of the lobbying efforts of the reformers may not ameliorate
but may, in fact, exacerbate the problem of rape in our society. To arrive at this
conclusion is not to impugn the motives of the reformers. Perhaps due to a lack
of criminological data regarding deterrence, many well-intentioned reforms have
failed to achieve the desired results. The legislative efforts of the states of Penn-
sylvania to decrease rape (Schwartz, 1968) and New York to decrease heroin use
(Joint Committee on New York Drug Law Evaluation, 1977) are good examples
of unsuccessful crime reform legislation.
To understand how the well-intentioned rape reform movement effected a
number of unforeseen and often undesirable results, it is necessary to review the
conditions that made reform necessary. The groups that organized and lobbied
for legal change will then be discussed followed by a description of the major
reforms and effects these reforms apparently have had on the conceptualization
of rape in our society.
Tradi t i onal Perspect i ves on Rape
The legal history of rape is the history of male domination. Definitions of
offense, evidence, legal defenses, and appropriate penalties were passed by males
in accordance with traditional perspectives of propriety and the nature and char-
acter of females. Historically, two types of females were implicitly recognized by
the l aw- - t he chaste and the unchaste. The rape of a chaste female brought forth
the full force of the law; the rape of an unchaste woman often not only went
unpunished but often resulted in the trial being a public degradation ceremony of
the "nonvi rt uous" female. A number of theorists have stated that this legal po-
sition was the result not simply of political inequality of females, but rather re-
flected total inequality (Schwendinger and Schwendinger, 1983; Brownmiller,
1975), females being considered the property of males and the rape of a woman
had to be the rape of a "man' s woman" for the offense to be taken as a serious
transgression. In this context, rape has been described as an offense of one man
against another (Miilett, 1970). Whether or not this view of rape is correct, there
is little doubt that through the legal system the politically dominant male protected
himself and all other members of his sex from all potentially unwarranted charges
of rape, giving the accused advantages not seen as appropriate for those accused
of any other crime. Those advantages protected the male not only from "unwar-
ranted charges, " but served to make it extremely difficult to convict of rape
except in narrowly defined circumstances.
The traditional exemption of husbands from rape charges illustrates the pro-
tective power of the politically dominant male. As recently as 1981, there were
only six states in which a husband could be charged with raping his wife if they
were legally married and living together (National Clearinghouse on Marital Rape,
1984). This prohibition traces back to the 17th century when Sir Matthew Hale
stated, "t he husband cannot be guilty of rape committed by himself upon his
lawful wife, for by their mutual matrimonial consent and contract, the wife hath
given up herself in this kind unto her husband, which she cannot retract" (Barry,
1980:1088). While no authority has ever been cited as a basis for "matrimonial
consent contract theory, " marriage historically has been a legal defense against
RAPE AND THE DEVALUED VICTIM 369
the charge of rape. A number of states have made marital rape a crime, but
marriage is still a defense in 28 states (National Clearinghouse on Marital Rape,
1984).
Another pronouncement by Lord Hale taken as an historical fact is that rape
"is an accusation easily to be made and hard to be proved, and harder to be
defended by the party a c c us e d. . . " (Connell and Wilson, 1974:126). As a con-
sequence of this often stated assumption, suspicion has traditionally greeted
charges of rape, with the victim being closely questioned as to her character,
sexual history and nature of the event. Such questions are used in an attempt to
impeach the credibility of the victim and protect the presumably innocent male.
Historically, the fear of men languishing in prison as a result of spurned or
malicious females charging rape led to a variety of laws extraordinary in their
bias against the rape victim. In many states, evidence of the past sexual history
of the victim could be introduced to demonstrate her poor moral character and
cast doubt on her claim of nonconsent to the sexual intercourse while the past
sexual history (including past convictions of rape) of the accused could not be
introduced as evidence. In Michigan, it was required that a rape victim resist "t o
the ut most " from "t he inception to the close" of the attack to indicate resistance
and nonconsent. LeGrand (1973) has pointed out that rape was the only crime
that required the victim' s active resistance, up to the point of severe injury, as
an indication of nonconsent. In California, delay in reporting a rape was consid-
ered a circumstance tending to show that the female consented to the intercourse
(LeGrand, 1973). In other states, it was required that the judge give cautionary
instructions to the j ury before deliberations that a woman who had once con-
sented to sexual intercourse was more likely to consent again and that evidence
of her "unchast i t y" reflected on her consent and credibility (LeGrand, 1973).
Finally, many states took this suspicion of rape to an even greater degree, having
passed laws which required a third party as a corroborating witness; in effect, a
rapist could not be convicted solely on the word of the victim.
The necessity for a corroborating witness, the resistance requirements, the
cautionary statements read to the jury, the ability to examine the sexual history
of the victim in great public detail all indicated the courts' deep mistrust of the
female victim. Deming and Eppy (1981) state that one of the consequences of
common law rape statutes is that they shift the focus of attention from the of_
fender to the victim. As a result, rape victims have commonly stated that they
felt as if they were on trial, their character questioned, and that they were re-
sponsible for the rape because of how they acted or because they did not resist
strongly enough.
This mistrust, however, has not been limited to legal requirement and officers
of the court. Case histories indicate the great reluctance of juries to convict an
apparently normal male for rape except under aggravated circumstances. This
belief is supported by Kalven and Zeisel' s (1966) finding that juries convicted
defendants of simple (nonaggravated) rape in just 3 of 42 cases whereas the judge
would have found 22 of the 42 defendants guilty of rape. This startling finding
led Kalven and Zeisel to conclude that in cases in which there were no aggravating
circumstances juries tended to be more critical of victims and inferred that the
victim placed herself in a hazardous situation and should take the blame for the
370 GI ACOPASSI AND WI L KI NS ON
consequences. Quest i onabl e ci rcumst ances that lead j uri es to this assumpt i on of
risk are many and varied, ranging from hitchhiking to drinking. One comment at or
wrot e that the only time a rape convi ct i on seemed probabl e was if it met the
following conditions:
a wo ma n wi t h a n a c c e pt a bl e r e a s o n f or be i ng o u t a l one at ni ght is a t t a c k e d wi t h a we a p o n
by a s t r a n g e r wh o l e a ve s h e r u n c o n s c i o u s i n a n al l ey. But c h a n g e a n y of t he f a c t s - -
r e mo v e t h e we a p o n a n d t he i nj ur y, ma k e t he wo ma n a pr os t i t ut e or t he ma n he r h u s b a n d
or s o me o n e s h e me t i n a b a r - - a n d t h e a r g u me n t we a k e n s ( Hot chki l l , 1978:29).
Juries, it seems, operat e on the assumpt i on that "ni ce girls don' t get raped and
bad girls shoul dn' t compl ai n" (Task Force on Rape, 1972). In fact, Burt and Est ep
(1981) argue that many aspect s of our culture conspire to deny rape victims the
benefits of the victim role by denying the legitimacy of her claim. It is not sur-
prising that the t reat ment of the rape victim in the arms of the law became a
si gni fi cant f emi ni st i ssue demonst r at i ng t he dest r uct i veness of di scr i mi nat or y
t reat ment of women.
I mp e t u s f or Re f o r m
The rape reform legislation of the 1970's probabl y woul d not have passed
had it not been for the modification in attitudes t oward women' s roles and the
devel opment of politically active feminist groups. These groups gained additional
j ust i fi cat i on for rape law reform from three factors:
(1) Bet ween 1960 and 1975, the number of report ed rapes increased dra-
matically by 378%. While this increase in report ed rape offenses was actually less
than the increase in report s for all index crimes, est i mat es of the under-reporting
of rape led some feminists to concl ude that rape was the most common violent
crime in Ameri ca (Griffin, 1971). Also, it should be noted that bet ween 1970 and
1975, a peri od of great activism for groups lobbying for rape reform legislation,
the rate of report ed rapes actually i ncreased at a much higher rate (48%) than
either the index crimes or the Type One violent crimes (murder, rape, robbery,
aggravated assault) whi ch bot h i ncreased by 30% (McNamara & Sagarin, 1977:40,
41).
(2) While the rate of report ed rapes was increasing dramatically, the criminal
j ust i ce syst em appeared increasingly incapable of dealing with the offender. Hin-
delang and Davis (1973) report ed that from 1960 to 1973, the clearance (arrest)
rate for forcible rape declined 29%, approxi mat el y doubl e the declines report ed
for the same peri od in the arrest rates for homicide and aggravated assault. The
cl earance rate in 1973 for rape (51%) was al ready well bel ow that of homicide
(79%) and aggravat ed assault (64%) and the trend appeared to be t owards greater
differences in the rates in the future.
Report s of convi ct i on rates were consi dered unaccept abl y low by the feminist
activists. LeGr and (1973) calculated that during 1970, a rape that was report ed
to pol i ce had approxi mat el y one chance in eight of resulting in conviction. Hur sh
report ed that in Denver in 1973 prosecut ors filed charges in only 14.8% of the
sexual offense cases in whi ch furt her court action was possible. Hur sh concl uded
" . . . it is obvi ous that the chance of a sex offender continuing to roam the
st reet s even after the crime is report ed is astonishingly l arge" (1973:125).
RAPE AND THE DEVALUED VICTIM 371
(3) The third factor that encouraged political activists to advocate rape re-
form legislation was the perception of the criminal justice system as cold and
uncaring toward the victim. Horror stories abounded of mocking police, uncon-
cerned prosecutors, insensitive judges, and disbelieving juries. Holmstom and
Burgess (1975) concluded from their observations of rape trials that the rape
victim is treated as though she committed the crime. Police have been described
as judgmental, skeptical, unsympathetic, and suspicious (Weis & Borges, 1973;
Peters, 1975; Webster, 1970). Even after substantial revision in Michigan' s rape
laws, many criminal justice officials still "view a rape complaint with suspicion
in all but the most brutal of cases" (Marsh et al., 1982:95). Some victims have
even concluded that the trauma associated with the criminal justice processing
of the case was more degrading than the rape itself.
While these three factors were central to the call for rape reform, it was the
Supreme Court decision of Furman v. Georgia (1972) which provided the oppor-
tunity for rape reform legislation. The Court in this case found the application of
capital punishment by the states to be "arbitrary and capricious" and therefore
a violation of the Constitutional amendment prohibition against cruel and unusual
punishment. As a result of this ruling, states were forced to reassess the appro-
priateness of their statutes that had the death penalty as a possible sanction.
Since rape was a capital offense in 16 states, the decision presented the propo-
nents of reforms with the opportunity to lobby for significant change. By 1980,
every state had considered rape reform legislation and a majority (41) had passed
laws incorporating significant reforms (Bienen, 1980:197). A great many biased
and prejudicial laws were removed from the books in a large number of jurisdic-
tions. From 1976 to 1979, 32 states amended their laws dealing with rape (Bienen,
1980). Given the momentum of the reform movement, those few laws that remain
untouched by the feminist cause seem destined for extinction. We will therefore
not detail the "questionable" laws that remain but rather focus on the trends and
impact of the reform legislation. While the reforms undoubtedly accomplished
much good, they may have also served an unintended function: the trivialization
of the offense of rape.
Rape Law Reforms
Five changes that have commonly appeared in the amended rape legislations
are abolition of capital punishment as a sanction for rape, lowered sentence struc-
ture, a graduated continuum of offenses and penalties for rape, reformulation of
rape statutes to a sex-neutral definition of participants, and a change in termi-
nology away from rape to such nomenclature as "sexual assault" or ~'criminal
sexual conduct . " While it is often stated that each of these changes reflect an
enlightened view, we believe that they have been a "mixed blessing" for the
victims of rape for they have also generated unintended negative consequences.
In this section, we discuss the reasons for the reform measures and the possible
unintended consequences of the reforms.
The abolition of capital punishment for the rape of an adult female was
mandated by the Supreme Court in the Coker v. Georgia decision of 1977. This
case involved an individual, Ehrlich Anthony Coker, who had escaped from a
372 GI ACOPASSI AND WI L KI NS ON
prison where he had been serving a sentence for murder, rape, kidnapping, and
assault. After his escape, in the course of committing an armed robbery of a
private residence, he brandished a knife and raped the adult female occupant
telling her, "You know what' s going to happen if you try anything . . . . "
Coker was apprehended shortly thereafter and was tried and convicted of
rape and armed robbery. He was sentenced to death on the rape charge when the
jury found two aggravating conditions: the rape was committed by a person with
a prior capital felony conviction, and the rape was committed in the course of
committing another capital felony, armed robbery.
Coker appealed the case to U.S. Supreme Court asserting that the sentence
was a violation of the Eighth and Fourteenth Amendment prohibition against cruel
and unusual punishment. As early as the mid-1960' s, the NAACP Legal Defense
Fund had challenged the constitutionality of the death penalty for rape indicating
in Maxwell v. Bishop (1970) the discriminatory pattern of punishment. There was
extensive evidence of the discriminatory patterns of execution for rape. For ex-
ample, of the 455 individuals executed for this crime since 1930, 405 were black
(U.S. Department of Justice, 1978). Wolfgang and Riedel (1973) calculated that
based on their analysis of rape in l I Southern states, the execution rate for blacks
was grossly disproportionate to their conviction rate. Thus, the court could easily
have invalidated the rape statutes in question on the grounds of the arbitrary and
capricious nature of the punishment.
The Supreme Court, however, chose to rule much beyond those limited legal
confines. It ruled that a sentence of death for the crime of rape is "grossly
disproportionate and excessive punishment. " Justice White, author of the plu-
rality decision, stated that the decision should not be based merely on the "sub-
jective views of individual justices" but rather that it must be the result of "in-
formed objective factors to the maximum possible extent. " To that end, they
reviewed "history and precedent" and stated "attention must be given to the
public attitudes concerning a particular sentence" (Coker v. Georgia, 1977:2866).
The court focused on the trend in rape legislation, noting that "in no time in
the last 50 years has a majority of the states authorized death as punishment for
rape" (Coker v. Georgia, 1977:2866). By 1971, just prior to the Furman decision,
16 states and the Federal government had capital punishment as a potential pen-
alty for rape. When the Furman decision forced the states to review all capital
punishment provisions, only three of the 16 reinstituted the death penalty for the
crime of rape. Furthermore, the Court noted that in Georgia, where the case was
tried, juries in nine out of ten cases had not imposed the death penalty when it
was a possibility.
The clarity and scope of the Supreme Court' s message was startling: while
the crime of rape of an adult female does merit "serious punishment," it does
not justify, in any case, no matter how brutal the attack or the criminal back-
ground of the offender, the penalty of death. 1 The justification for the decision is
" T h a t q u e s t i o n , wi t h r e s p e c t t o r a pe of a n a dul t wo ma n , is n o w bef or e us . We h a v e c o n c l u d e d t ha t
a s e n t e n c e o f d e a t h is g r o s s l y d i s p r o p o r t i o n a t e a n d e x c e s s i v e p u n i s h me n t f or t he c r i me of r a pe and
is t he r e f or e f or bi dde n by t h e Ei ght h Ame n d me n t as c r ue l a nd u n u s u a l p u n i s h me n t " ( Coke r v.
Ge or gi a , 1977:2868). " I t i s di f f i cul t t o a c c e p t t h e not i on, a n d we do not , t ha t t he r a pe , wi t h or
RAPE AND THE DEVALUED VI CTI M 373
that, in t oday' s society, rape is not percei ved as a serious enough crime to merit
capital punishment. It should be clear, however, that the Court merel y inferred
public sentiment regarding the seri ousness of rape and appropri at eness of pen-
alties since public opinion was not directly assessed.
Several studies have been conduct ed, however, that do assess seri ousness
of crime. These studies indicate that there is a general consensus, widely distrib-
ut ed among all classes, as to what const i t ut es a " s er i ous " offense (McConnell &
Martin, 1969; Rossi et al., 1974; McCl eary et al., 1981). Of the 140 crimes in the
Rossi st udy (1974), rape was ranked fourth. "Forci bl e rape after breaking into a
home" ranked behind (1) planned killing of a policeman, (2) planned killing of a
person for a fee, and (3) selling heroin. It was rated more serious than (5) im-
pulsive killing of a policeman, (6) planned killing of a spouse, and (7) planned
killing of an acquai nt ance (pp. 228-229). From t hese studies and from the heavy
sanctions traditionally i mposed upon rape, we may infer that the American peopl e
percei ve rape as one of the most serious of crimes. Regardless of the debat es
concerning rape' s ~ the appropri at eness of a particular penalty, and
the source of t hese attitudes, the Supreme Cour t ' s decision did serve to officially
deval ue the harm associ at ed with the crime to a level less than in the past and
less than that of the remaining possible capital offenses: murder, treason, and
perhaps the rape of a minor female.
Coming on the heels of the Supreme Court decision, the legislative reform
in most states reduced the maxi mum penal t y for rape. While many of the states
included provi si ons that served to t oughen elements of their respect i ve laws, such
as instituting minimum penalties, abolishing parole and probat i on for t hose con-
victed of rape, or requiring mandat ory sent ences for t hose convi ct ed the second
time for the offense, the evident trend was for more lenient maximum penalties
(Bienen, 1980). New J er s ey' s law was typical of the revisions occurring in state
codes. It not only distinguished degrees of criminal sexual assault but lowered
the maxi mum penal t y from the mandat ory 30 years found in the former law to a
possible maxi mum of 20 years for the most aggravated rape cases under the new
law.
Perhaps the major impetus for the lowering of the possible penalties for rape
can be at t ri but ed to the pragmat i sm of the women' s groups that were instrumental
in shaping the legislation. Many were familiar with the legislative response to an
alarming i ncrease in rapes in Philadelphia which involved raising the penal t y for
rape from a 5-to-15-year sent ence to 7 years to life. A subsequent study, however,
concl uded that the law was a failure as a det errent to the rapist (Schwartz, 1968).
Although the Schwart z st udy was based on dat a gathered in 1966, its findings
remain wi del y quot ed. More importantly, it provi ded empirical evi dence used by
wi t hout aggravat i ng ci r cumst ances, shoul d be puni shed more heavi l y t han t he del i berat e killer as
l ong as t he rapi st hi msel f does not t ake t he life of his vi ct i m. " (1977:2870).
Just i ce Powell, concur r i ng in part and di ssent i ng in part , wrot e t hat t he Coker plurality ~' ranges
well beyond what is necessary, it hol ds t hat capi t al puni shment always, regardl ess of t he circum-
s t a n c e s - i s a di spr opor t i onat e penal t y for t he cri me of r ape" (2870).
For a di fferent i nt er pr et at i on of t he Coker deci si on, see Lewi s and Peoples (1978) and Kapl an
(1978). They hol d t hat t he Coker deci si on does not prohi bi t in all cases capital puni shment for the
rape of an adul t woman.
374 GIACOPASSI AND WI LKI NSON
the women' s groups advocat i ng new directions in rape law legislative reform. By
advocat i ng a l ower ed penalty, the feminist l obby was opting for i ncreased cer-
tainty rat her than severi t y of puni shment , which is consi st ent with the bulk of
t he r es ear ch fi ndi ngs regardi ng det er r ence ( Er i ckson et al., 1977; Zimring &
Hawki ns, 1973; Andenaes, 1966).
However , since the severi t y of penalties for crimes are often used as indi-
cations of their seri ousness, l owered penalties for rape suggest a change in leg-
islative sent i ment regarding the harmfulness of rape. Johannes Andenaes exam-
ined the relationship of penal t y to crime and wrot e, " He a v y penalties are an
expressi on of strong social condemnat i on, and prima facie one might assume that
the heavi er the penal t y t he great er its moral ef f ect " (1966:966). Loweri ng the
penalties for rape, then, suggests a change in legislative sentiment regarding the
harmfulness of the act. Li ke the abolition of capital punishment for rape, the
uni nt ended consequence of lowering the maxi mum penalties for rape was to signal
a concomi t ant change in its official moral valuation.
Whet her this cost of the legal reforms is bal anced by gains in convi ct i ons,
as intended, has not been adequat el y answered. To our knowl edge, no rape laws
have been revi sed in penal t y structure alone, which makes st udy of the effect of
l owered penalties on convi ct i ons difficult if not impossible. In addition, a recent
st udy by Pat ernost er et al. (1983) calls into question the det errent function of the
t hreat of formal legal sanct i ons, concluding that the cer t ai nt y- sever i t y debat e
still has not been concl usi vel y resol ved.
A third change commonl y found in reform statutes was the gradation of the
offense: vari ous degrees of rape were recogni zed based on such factors as amount
of intimidation, force, or injury resulting from the attack. The more serious the
attack, the more severe the st at ut ory penalty.
The rationale for this change was based on the bel i ef that j uri es were oft en
hesitant to convi ct and t her eby i mpose a lengthy sent ence on a rapist except in
ext reme ci rcumst ances. If the victim and offender were acquainted, if the woman
had been drinking, or if she wer e di vorced, the offender appeared less responsi bl e
and the j ur y was less likely to convict. By specifying degrees of rape for different
ci rcumst ances, j uri es might convi ct defendant s without feeling excessi vel y pu-
nitive.
In presenting the legislative and legal rationale for this change, Loh (1980)
argues that gradations of the offense of rape were not concei vabl e in the past.
The value syst em was absolute: " a woman was either defiled or not; violations
of chast i t y did not come in degr ees" (Loh, 1980:563). Now, however, chastity is
not the issue. Loh (1980:563) states that
Ref or m l egi sl at i on r ef l ect s t he j udgme nt t ha t i ndi vi dual sel f - det er mi nat i on i n sexual
choi ce is a pr ot ect ed i nt er est i n and of itself. A corol l ary policy is pr ot ect i on of bodily
security. By di scardi ng assumpt i ons of chastity, t he law can recogni ze degrees of cul-
pabi l i t y (and of vi ct i m nonconsent ) and abr ogat e t he special evi dent i ary rul es premi sed
t her eupon.
The r ef or m of r ape laws, t hen, reflects a shi ft in bot h social policy and legal met hod-
ol ogy- - f r om a policy of pr ot ect i ng a t angi bl e, or propert y i nt erest t o one of safeguarding
an i nt angi bl e, per sonal right; f r om an absol ut e appr oach based on fixed legal cat egori es
RAPE AND THE DEVALUED VICTIM 375
(one crime, one penalty) to a relativistic one that calibrates culpability and social harm
along a continuum.
Once again, there is an appealing pragmatic basis for this element of reform:
an attempt to increase the conviction rate. Much is lost, however, by promoting
this reform. Since there are degrees of rape, there are more or less serious cases
of rape and, for all practical purposes, a woman can be raped ~'a little." The
important criteria is no longer nonconsent, which is an absolute, but degree of
force used to overcome resistance and cause injury. This subtle but important
shift places less value on individual self-determination, the right to say no, while
elevating to a principle of law the obligation of the female to place herself in
jeopardy by resisting to the point of injury before the court will recognize a
"serious case of rape. " It is somewhat surprising that feminists supported this
reform since it could be argued that when males had a proprietary interest in sole
possession of sexual access, high penalties for rape were seen as appropriate.
Only when females became possessors of the property (self-determination) did
the violation become relegated to a lesser offense requiring additional elements
for the crime to warrant severe punishment. 2
A fourth element common to many reform laws is a redefinition of rape not
as an offense of male against female but in sex-neutral terms. Whereas the older
form of rape laws defined the act as "t he unlawful carnal knowledge by a man
of a woman not his wife, forcibly and against her will . . . . " the gender neutral
laws typically define the crime as "unlawful sexual penetration of another o . . "
This new legal definition recognizes the possibility not only of male raping female,
but also of female raping male, male raping male, and female raping female.
Additionally many of the statutes broaden the scope of the law to subsume many
types of sexual deviance, not previously incorporated in the rape provisions (e.g.,
acts other than penile-vaginal intercourse) (Bienen, 1980:172).
The justifications for these reforms are not as evident from a pragmatic per-
spective as the changes previotzsly discussed. The inclusion of other sexually
deviant acts along with rape is seen as broadening the applicability of the law
and administratively simplifying evidence and procedures required for prosecu-
tion. The changes in definition might also serve, the reformers hope, to avoid the
stereotypical preconceptions many jurors have of female victims of rape by in-
2 It could be argued that since gradations of assault (e.g., aggravated and simple) are recognized by
law, gradations of rape should also be recognized. As with victims of assault, victims of rape differ
in the amount of psychological and bodily injury that they sustain. Some rapists use more force
than others to accomplish the offense, just as assaults vary in the amount of force used. Although
assault and rape may be analogous in these ways, there is an important distinction. An assault victim
does not need to prove that he/she did not want to be attacked, while the rape victim does. The
rape victim must convince others that she did not give consent (Schwartz, 1983). For the offender
to receive the maximum penalty and implicitly the most condemnation for his behavior, the victim
must strongly resist and thereby possibly sustain great injury in order to establish her nonconsent
and show that a serious case of rape occurred. Gradations of assault are defined by the offender' s
behavior, while gradations of rape are defined in part by the victim' s willingness to risk her/his life.
This distinction is important enough that we maintain that gradations of rape are not justified for
the same reasons that gradations of assault are.
376 GIACOPASSI AND WILKINSON
cluding males as potential victims. By making it possible for males to have legal
protection from sexual victimization, jurors may be more inclined to see the
female' s complaint as legitimate. The change may also be justified because it
explicitly extends protection to victims only implicity covered by other statutes
(victims of homosexual rape and male victims of rape by females). In general,
however, the sexual neutrality of the law is often presented as having symbolic
value, signaling the emerging equality of the sexes before the law.
While it has been argued that equal protection provisions of the law require
gender neutral statutes (Mirabile, 1980), the Supreme Court has never stated this
necessary for rape statutes and can, when appropriate and necessary, make legal
distinctions based on gender. The 1981 U.S. Supreme Court case (Michael M. v.
Superior Court of Sonoma County, 1981) that upheld the legality of California's
gender-based statutory rape law illustrates this principle.
While it is possible that some limited administrative and symbolic value might
accrue as a result of the aforementioned changes, the potential negative conse-
quences must also be weighed. When changes in sex-specific laws are made, the
goal is to maximize the benefits to both sexes (U.S. Department of Labor, 1975).
If a law has been beneficial to one sex only, its benefits should be extended to
the other (e.g., a law allowing women workers a certain number of rest periods).
If a law has been harmful to one sex, it should be abolished (e.g., a law preventing
women from working at night). For rape laws the principle of extension has been
followed, resulting in sex-neutral terminology.
The reformulation of rape laws in sex neutral terminology results in the
establishment of practices in law that are rare in fact. In 1980, fewer than one-
tenth of one percent of those arrested for rape were females (U.S. Department
of Justice, 1982:399). Those females charged with rape have generally engaged
in homosexual attack or have aided males in the commission of rape. Thus, female
rape of men is quite rare. Male rape of men appears to be somewhat less rare.
Groth (1979) has argued that when males are victimized by other males, the
"sexual assault can have the same biopsychosocial impact on male victims as it
does on female victims" (1979:133). In addition, male rape victimization may
create a trauma of a different kind since men are expected to be strong and being
overpowered may result in insult as well as terror. The male victims must fre-
quently cope with doubts about their heterosexuality and fears of being known
as homosexual.
Although the male victim' s experience must not be discounted, there is a
critical problem with the sex-neutral terminology in rape laws. The problem with
this change is embedded in the fact that our cultural expectations of sexuality are
not sexually neutral. In our society, the normal man is believed to have an in-
satiable, fairly indiscriminate sexual appetite while the normal woman is believed
to be more selective. In the case of male victims of male offenders, public sym-
pathy would be lacking since it is commonly believed that "a male is powerful
enough to defend his sexual zones from invasion" (Groth, 1979:122). Since it is
a popular myth that an unwilling female cannot be forced to have sexual inter-
course (McCaghy, 1980:128), the belief that the rape of a normal male is not
possible would be even more prevalent. Furthermore, same sex rape is frequently
associated with socialIy stigmatized groups, such as homosexuals or prisoners,
RAPE AND THE DEVALUED VICTIM 377
and thus its occurrence is much less likely to elicit public sympathy. Finally, the
fact that there is little information and apparently little concern over same gender
sexual attack would indicate that there is no perception that it is a serious problem
in American society.
As a result of the lack of symmetry in the practical consequences of the law,
we do not believe that the statutory inclusion of these acts under the rape pro-
visions will lead to greater empathy with the female victim of male attack. This
is not to say that the male rape victim' s experience is inconsequential, only that
it is likely the public perceives the male' s experience and response as different
from the female' s and that few males are concerned with sexual victimization.
Indeed, by combining coverage of homosexual and heterosexual male and female
victims in the same statute, the variant acts are equalized and rape may be seen
as a less harmful and less threatening crime as a result. Extension of protection
to male victims may inadvertently lead to even lower penalties and less sensitive
treatment of the female rape victim. Thus, sexually neutral rape laws may actually
encourage a devaluation of the rape victim and perhaps even lead to the eventual
abolition of the act as a distinctive crime.
A fifth change common to many of the revised rape laws is the redefinition
of the act as a sexual assault, sexual battery, or criminal sexual conduct. A major
purpose of this redefinition is to make the laws less emotive relative to the per-
ceptions of both offender and victim. "Rape" and "rapi st s" carry strong ste-
reotypic images that do not always fit the realities of the law. By avoiding these
terms, it is hoped that victims will feel less stigmatized and that juries will be
more likely to convict in nonaggravated cases by not forcing jurors to choose
between acquittal and placing on the offender the "distinctive opprobrium of
rape" (Kalven & Zeisel, 1966:254).
This change in terminology along with the changes in the definition of the
offense and the changes in the sentencing provisions have made rape similar to
the crime of assault. It has, in fact, been argued that rape is an example of
institutionalized sexism and that the rape statutes should be incorporated into
existing laws. Schwartz and Clear (1980) believe that there is no reason to sep-
arate a woman' s sexual integrity from her general physical integrity. They argue
for laws that do not elevate one part of women' s bodies to a higher level of
importance than the rest of their bodies. Subsuming rape under the category of
assault would, it is argued, (1) help to promote the equality of all citizens and (2)
place emphasis on the dominant assaultive rather than sexual elements of the
crime. Assaults of a sexual nature that resulted in penetration would be viewed
as a serious personal injury and treated as a form of aggravated assault. These
changes would lead to the "normalization" of rape, making it less of a ~'degrading
event " for the victim because it would be less of a "special event. "
The problem is that calling forced sexual penetration (penile, digital, or oth-
erwise) or other forms of forced sexual contact "assaul t " instead of rape does
not change the reality of the event for the victim. An ordinary physical assault
and sexual assault are no more alike in their meanings to the participants than
shaldng hands and voluntary sexual intercourse. There is no doubt that ordinary
physical assaults have some disturbing consequences for the victims, but whether
these are of similar intensity as those for the victims of rape is an unresolved
378 GIACOPASSI AND WILKINSON
empirical quest i on. Existing evi dence regarding rape victims indicates that the
c ons e que nc e s of r ape are i ndeed ext r aor di nar y. Bur ges s and Hol ms t r om
(1974:982) descri be the "r ape t rauma syndr ome" typical of rape victims as a
cl ust er of behavi oral , somatic, and psychol ogi cal reactions whi ch are an acut e
stress react i on to a life-threatening situation. One rape victim has descri bed rape
as " an assaul t on one' s most pri vat e bei ng" (Metzger, 1976:407). Since penetra-
tion is consi dered to indicate a compl et ed rape and t hereby legally designated as
more seri ous than an at t empt ed rape, it is significant that in at least one st udy
at t empt ed rape victims and compl et ed rape victims did not differ significantly in
their i mmedi at e and long-term responses to the sexual assault (Becker et al.,
1980). Since rape pr oduces responses from all aspect s of the victim' s being and
since it is so distinctively personal , rape is set apart in its consequences from
ot her t ypes of assault. In our opinion, providing special legal prot ect i on for sexual
integrity is merited.
A final danger is that if rape is seen as a form of assault, and if assault is
based on the degree of danger and harm occurring to the victim, most rapes may
event ual l y be t reat ed as minor assaults. There are greatly varying estimates of
the per cent of rape victims who sustain injury. While Brodyaga et al. (1975)
report ed t hat up to 63% of adult victims suffered some injury, most studies in-
dicate that relatively few rape victims sustain serious injuries requiring additional
medical care ( Hayman, 1972; Burgess & Hol st rom, 1974; Peters et al., 1976;
Hindelang et al., 1978). If t hese injury statistics are accurat e, the overwhelming
majority of rape victimizations woul d be t reat ed as minor assaults.
However , if forced sexual penet rat i on is defined as an aggravating condition
of assault, regardless of degree of physical injury, there is a tacit admission that
forced sexual cont act does have special meaning. To operat e on this assumpt i on
while denyi ng its validity as the basis for a separate offense cat egory is hypocri sy
and an affront to the victims of rape. In essence, to define rape as a form of
assault denigrates the victim by treating the victim as simply a physical entity
rat her than as a total person with mind and body who attributes special signifi-
cance to a sexual attack. Laws t hat do not recognize basi c cultural meanings do
no j ust i ce to the victims.
The Ac a d e mi c s ' Co n t r i b u t i o n t o t he De v a l u a t i o n of t he Vi c t i m
Li ke the concept i ons of rape underlying the laws and actions of the criminal
j ust i ce syst em, academi c concept i ons of rape have not consistently taken the
perspect i ve of the victim. Recent studies of rape indicate greater sensitivity to
the vi ct i m' s experi ence, but t here are several indications of the devaluation of
the victim in the literature on rape. The skepticism surrounding claims of female
rape victims may be at t ri but ed, at least in part, to common psychoanal yt i c state-
ment s that females fantasize about rape and, given the traditional attribution of
submi ssi veness, desi re to be forcefully t aken by a dominant male (Freud, 1948).
Since t here is no empirical foundat i on for the notion of a "r ape wi sh" in women
(Kanin, 1982), this perspect i ve is easily recogni zed for what it is: a st ereot ype
that prevent s appreci at i on of the act ual revul si on that rape victims feel.
RAPE AND THE DEVALUED VICTIM 379
Another example of the academic devaluation of the victim is in the classical
sociological study of rape by Menachem Amir (1971). He describes as "victim
precipitated rape" those cases in which "t he victim actually (or so it was inter-
preted by the offender) agreed to sexual relations but retracted before the act or
did not resist strongly enough when the suggestion was made by the offender."
Also included in this classification are females who willingly enter situations
charged with sexuality and who become victims of rape. A bad reputation,
drinking with the offender, using vulgar language, or wearing suggestive clothing
have all been interpreted as elements of victim precipitation. By Amir' s definition,
19% of the rapes that he studied were "victim precipitated."
While Amir may have accurately described the situations in which rapes
occur, his choice of terminology creates inaccurate impressions of the nature of
the crime. While he admittedly based his concept on Wolfgang's (1958) "victim
precipitated homicide" where the ultimate victim makes the first aggressive move
against the offender, there are obvious differences in the pattern of the offenses.
In the victim precipitated homicide, the eventual offender reacts to an aggressive
move for what it is, and simply responds by retaliating aggressively to a greater
degree or more effectively toward the initiator of the aggression. In rape, the
victim' s intentions may be misinterpreted by the offender who responds along a
different continuum, not simply a retaliation but an initiation of aggressive be-
havior. Although the parallels between the two concepts are questionable, the
assumption that victim precipitation is the same for the two crimes resulted in
the victim of rape being held responsible for the mistaken subjective interpretation
of the offender.
This concept of victim precipitated rape was influential to the degree that it
became a common citation in the criminological literature (Gibbons, t973:393;
Clinard, 1974:303-304; McCaghy, 1980:123-124) and to the degree that it was
utilized for its heuristic value (Curtis, 1974; Kanin & Parcell, t977). Presently,
little validity is attributed to the concept of victim-precipitated rape in the aca-
demic community, partially as a result of research that demonstrates that it is a
rare occurrence (Curtis, 1974), partly due to the faulty parallel with victim pre-
cipitated homicide, but perhaps mostly due to articles that persuasively affirm
rape as a social problem (Rose, 1977) and its victims as "legitimate victims"
(Weis & Borges, 1973). Feminist groups have also been influential as they have
stressed the perspective that forced sexual intercourse is a crime against basic
human rights, no matter what the provocation (Katz & Mazur, 1979:14t).
Despite these indications of greater sensitivity to the victim, there is at least
one current example of an academic position that takes the perspective of the
offender. This is the tendency to view rape as a crime of violence rather than a
sex crime. It has been argued that rape is the nonsexual use of sex and should
be seen as a crime of violence since the dominant motive in many rapes is not
sexual gratification but the humiliation and domination of the female victim. This
orientation toward rape obviously takes the perspective of the offender, for female
victims react to rape as a sexual offense as well as a crime of violence. A psy-
chotherapist has indicated that the clinical view of rape differs sharply from the
legal view (Pearlman, 1983). The victim of rape commonly reacts with feelings of
380 GIACOPASSI AND WI LKI NSON
defilement, embarrassment , humiliation, loss of sexual desire, preoccupat i on with
cleanliness, and loss of self-esteem. React i ons of guilt and shame are said to be
"vi rt ual l y uni versal " in rape victims (Not man & Nadel son, 1976:410). Burgess
and Hol mst r om (1974) found that many rape victims experi enced a crisis in their
sexual lives, especially for t hose with no prior sexual activity.
While victims of all t ypes of crime may suffer severe emotional t rauma (Sil-
berman, 1978:3-26), t he react i ons of rape victims differ from t hose of victims of
ot her crimes, including ot her crimes of violence. Weis and Borges (1973:72) have
compar ed rape to assault victimization and concl uded that "whi l e both assault
and rape are basically acts of aggression and hostility, sexual assault or rape is a
total at t ack against the whol e person, affecting the victim' s physical, psycholog-
ical and. social identity. Hardl y any ot her crime can be commi t t ed against a woman
with a comparabl e t raumat i c i mpact . " As a result, t he subj ect i ve consequences
and interpretations of rape differ from that ascri bed to ot her crimes. To ignore
t hese react i ons to a sexual at t ack is perhaps the ultimate deval ument , for the
perspect i ve of the offender is given legitimacy at the expense of the victim.
S UMMARY AND CONCL US I ONS
The crime of rape has been legislatively t ransformed in our society through
st at ut ory redefinition, changes in terminology, changes in punishment as well as
changes in the extralegal processi ng of the victim. Many of t hese changes were
instituted for pragmat i c reasons that reflect desirable goals, such as streamlining
the processi ng of offenders and increasing the certainty of punishment. While
many of t hese changes have undoubt edl y served the interest of the victims (rape
shield laws, more humane processi ng by the criminal j ust i ce syst em, victim sup-
port groups), a number of t he legal reforms have done the victims a disservice
by trivializing the offense and devaluing the victim' s experi ence.
Specifically, we have argued that lowering the sent ence structure, specifying
degrees of the offense, defining the crime as sexual assault, and incorporating
gender neutrality into the law have served to officially deval ue the crime of rape
and t he experi ence of the victim. These changes have often been the product of
a consci ous at t empt to make t he crime of rape less special by making it more like
ot her crimes in t erms of victims, evi dent i ary requi rement s, and punishment.
Empirical studies are needed on the effects of the modification in rape laws
on victims, offenders, and the wi der soci et y before an adequat e assessment can
be made of the changes. Although the modifications were made for the laudable
and pragmatic pur poses of convicting more offenders and shielding victims from
the public humiliation that t oo oft en accompani ed rape trials, the wider impact
of the reforms must be consi dered.
Law has a ' ~' socio-pedagogic" (Adenaes, 1966) and a "secondar y social con-
t rol " funct i on (Friedman, 1977). The law instructs the popul ace by defining so-
cially unaccept abl e acts and, through sanctions, ranks t hese acts as to their degree
of acceptability. The reformed rape laws embody a compromi se that in effect
t ransforms rape from a heinous crime that shocks the public to a disreputable act
that necessi t at es a l ower level of punishment.
RAPE AND THE DEVALUED VICTIM 381
The wager is that, by lowering the penalty, a higher percent age of rapists
will be convi ct ed. This is not at all a cert ai nt y 3 given the l ow rate of reporting
and arrest for the offense, the reality of plea bargaining, and the attitudes infor-
mally embodi ed in the criminal j ust i ce syst em. The unspoken and unpleasant
possibility is that by lowering the official level of di sapprobat i on embodi ed in the
law (even with a higher convi ct i on rate), the act may be percei ved as tess serious
and as a result become more frequent.
Perhaps the onl y failure in this startling met amorphosi s that rape has under-
gone in our soci et y is the failure to recognize that the experi ence of the victim
has remai ned constant: rape is an often brutal, degrading sexual at t ack which can
dest r oy the vi ct i m' s life. We believe a preferable strategy to normalizing rape as
a crime woul d have been to accent its uni queness while lobbying for effective
shield laws and significant reforms in the evi dent i ary requirements concerning
such things as the necessi t y of corroborat i ng wi t nesses and pr oof of resistance
and consent requi rement s. By opting for a normalizing strategy, the reformers
may find their success in legislating reform to be a Pyrrhic victory.
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