A Reflection on the History of Sexual Assault Laws in the United States.
by Kyla Bishop
The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.
April has been designated “Sexual Assault Awareness Month” in the United States since 2001. Sexual assault and harassment have consistently made the headlines in recent months, from President Trump’s “grab them by the pu**y” comment to the avalanche of assault accusations against Harvey Weinstein. At the forefront has been the #MeToo movement, with woman after woman, including famous and respected actresses, sharing their stories of sexual assault. What was once swept under the rug is now the hammer being used to shatter the stigma of sexual assault.
Crumbling too is the sense of security once felt by sexual predators. As the #MeToo movement has gained popularity, companies and employers have rushed to disassociate themselves with men accused of sexual misconduct. In November 2017, NBC fired its “crown jewel” Matt Lauer after a two-month investigation into several claims of sexual harassment by female staffers. So too was Kevin Spacey fired from Netflix’s hit original series “House of Cards” after actor Anthony Rapp alleged that Spacey made unwanted sexual advances towards him when he was only 14. Companies and employers taking the moral high ground has been a beacon of hope for many, but this was not always the case. Even our laws, which regard rape as a one of the most violent crimes a person can commit, did not always punish the perpetrators accordingly.
The Code of Hammurabi, one of the earliest sets of written laws, considered the rape of a virgin as property damage against her father. For a long time, the rape of a woman was considered a property crime against the victim’s husband or father. The word itself derives from the Latin word rapere, or “seize”. It wasn’t until the 11th and 12th centuries that rape began to be considered more as a violent, sexual crime against the victim. At the end of the 13th century, the Statutes of Westminster allowed the crown to prosecute rapists should the victim’s family choose not to do so, signifying a fundamental change in rape being viewed as a crime against the State.
Early American colonies defined rape at the common-law as “carnal knowledge of a woman 10 year or older, forcibly and against her will.” In the late 1800s, temperance and suffrage activists successfully advocated to raise the legal age of consent from 10 to between 14 and 18, depending on the state. Not everyone, however, was excited about this progress. In 1895, one Kentucky legislator wrote, “I regard the twelve-year-old girl as being capable of resisting the wiles of the seducer as any older woman.”
Women of color endured even more dire conditions. During the 1800s, most states excluded black women, both free and enslaved, from rape laws. Slave women frequently endured violent sexual abuse which often resulted in pregnancy. If a slave woman attempted to defend herself against such abuse, she would be beaten severely. It was not until 1861 that a black woman could even file rape charges against a white man.
Nearly 100 years later, the Anti-Rape movement emerged as violence against women became a central point in the second-wave feminist movement. The 1960s onward ushered in significant progress in American rape law. It was during this time that rape began to be viewed as a weapon, driven by the desire to exert control over women. Prior to the 1970s, marital rape, or the raping of one spouse by the other, was exempt from many rape laws. In 1976, however, Nebraska became the first state to make marital rape a crime. By 1993, marital rape was a crime in all 50 states.
Perhaps the most significant change came in 1975 when Congress adopted rules 412, 413, 414, and 415 into the Federal Rules of Evidence. These rules, more commonly known as “rape shield” laws, limit the Defendant’s ability to probe into the sexual behavior, history, or reputation of the alleged victim. Prior to 1975, Defendants could attack an alleged victim’s credibility by presenting evidence of the victim’s sexual activity. The public humiliation and embarrassment of having their sexual history dragged out in court became a strong incentive for victims not to report sex crimes. Subject to limited and strict exceptions, rules 412-415 of the Federal Rules of Evidence prevents evidence of a victim’s sexual history from being used to discredit him or her.
Laws treating sexual assault, harassment, and abuse continue to progress. Thirty-eight states, including Arkansas, have enacted revenge porn laws, criminalizing the distribution of sexually explicit images or videos without the individual’s consent. What is clear is that continued progress can only be achieved by keeping sexual assault and harassment relevant in the national dialogue. As stories continue to emerge, and as more and more men join this dialogue, lawmakers may enact legislation addressing these problems head-on.