Women's long battle to define rape

  • Article by: ESTELLE B. FREEDMAN , Special to the Washington Post
  • Updated: August 26, 2012 - 11:17 AM

Our legal definition of rape has evolved over centuries, and clearly, we're not done fighting over it.

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When U.S. Senate candidate Todd Akin of Missouri used the phrase "legitimate rape" to defend his opposition to abortion in cases of rape and incest, President Barack Obama fired back, saying that we should not "be parsing and qualifying and slicing" types of rape. Yet for most of our history, that is precisely what Americans have been doing. Our legal definition of rape has evolved over centuries, and clearly, we're not done fighting over it.

In the 19th century, state laws around the country defined rape as the carnal knowledge of a woman when achieved by force by a man other than her husband. According to a principle known as coverture, a husband had authority over his wife's person and property.

Therefore, women could not withhold sex from their husbands. Similarly, enslaved women could not refuse sex with their masters or testify against them in court. After emancipation, the presumption that African American women had no say over what happened to their bodies persisted. For generations afterward, many men had impunity in raping black women.

Even white women had difficulty making the case that they had been raped. Evidence of physical injuries to prove resistance and corroborative testimony that a woman had cried out would improve her believability in court.

But all-male juries and members of the judiciary often assumed that once a woman had consented to sex, any subsequent sexual activity was consensual. An unwanted sexual encounter could usually be classified as rape only if the woman was white and chaste, the perpetrator was black, and the act was violent.

Advocates for women's rights and racial justice started questioning these views in the mid-19th century, and their efforts helped reshape the meaning of rape in three important ways. First, legal remedies such as laws on criminal seduction and statutory rape made it easier to prosecute coercive but nonviolent sexual relations with acquaintances.

African American activists insisted that black women could be victims of rape and that white men should be held accountable for assault. And feminists renamed a range of non-consensual acts, particularly with acquaintances and husbands, as rape.

The earliest challenges emerged in the 1840s, just as the women's rights movement was coalescing. Reformers tried to make it easier to prosecute white men who had been neither strangers nor violent.

They sought criminal penalties to discourage what they called "the licentious man" from coercing, persuading or pressuring a young woman to have sex, especially through a false promise of marriage. By 1900, their lobbying campaigns had succeeded in most states, making seduction by an acquaintance, regardless of consent or force, a lesser crime than rape but still punishable by fines and imprisonment.

A subsequent national campaign, endorsed by temperance and suffrage advocates, called for increasing the age at which a young woman could legally consent to sex beyond the common-law standard of 10. At a time when women could not vote, they gathered tens of thousands of signatures on petitions and lobbied male officials. By 1900, they had convinced legislators in 32 states - primarily in the North and the Midwest - to increase the age of consent to between 14 and 18. These statutory rape laws did not require evidence of force or resistance for a conviction, but the penalties were less severe.

Still, critics protested the encroachment on men's prerogatives and claimed that young women should be responsible for protecting themselves.

"I regard the twelve-year-old girl as being as capable of resisting the wiles of the seducer as any older woman," one Kentucky legislator wrote in 1895. Statutory rape reform lagged in the South in part because legislators explicitly feared that it "would enable negro girls to sue white men" and thus put the "negro female on the same plane with the white female."

During the Jim Crow era, from the 1880s to the 1960s, African Americans waged a dual attack on the beliefs that black women could not be raped and that black men posed a sexual threat to white women. A mere rumor that a black man had sexually insulted a white woman could result in mob violence and brutal lynchings. Although only about a quarter of these murders involved allegations of sexual assault, vigilantes invoked the specter of interracial rape to justify their deeds.

Portraying African Americans as sexually uncontrolled threatened their political status as well as their physical safety. White Southerners claimed that former slaves and their descendants lacked the virtue to exercise the rights of citizens. They also justified segregation as a way to prevent interracial intimacies.

During the great Northern migration, African American activists condemned lynching and white men's sexual access to black women. Inspired by crusading journalist Ida B. Wells, members of Northern black women's clubs insisted that "virtue knows no color line" and implored white men to treat them respectfully. The African American press publicized white men's sexual impunity. "White Gentleman Commits Rape," the Chicago Defender headlined a 1911 article, with the subhead: "That's All Right - It Was on a Colored Girl - Permitted by the United States Government and the Confederacy."

White supremacists resisted these efforts and portrayed black men as the real rapists. In the 1930s, when the NAACP supported federal anti-lynching legislation, a Mississippi congressman referred to it as "a bill to encourage rape." After World War II, black women increasingly filed charges against white assailants, rallying support for the civil rights movement. But racial stereotypes about rape continue to disadvantage both women and men of color.

In the late 20th century, second-wave feminism generated an anti-rape movement that identified sexual assault as an abuse of power that has been central to women's oppression. Feminists rejected the notion that only a violent stranger could rape a woman. In addition to coining the term "date rape" to describe unwanted sex with an acquaintance, they targeted sexual abuse within the family.

Because of their efforts, in the 1980s states began to outlaw marital rape. Other reforms included revising rape statutes' requirements of corroboration and of the use of "utmost force" to prove resistance.

Feminists also exposed the extent of child sexual abuse within the home, schools and religious institutions. Rethinking rape as a form of power contributed to the recognition that boys and men could be victims and that rape is not solely a heterosexual crime. Only in 2011, however, did the FBI revise its definition of rape - for the first time since 1927. In Uniform Crime Reports, the FBI now includes any form of forced sexual penetration of a man or a woman as well as "non-forcible rape."

In recent years, as at every turn in our history, critics have chafed at the more expansive definitions of rape. As in the past, some may fear a loss of sexual privileges. Some skeptics have cast doubt on the extent and the damage of acquaintance rape. Others have tried to limit the meaning of rape to advance broader political agendas. Congressional Republicans recently tried, for instance, to change the rules for federal funds for abortions, allowing them only in cases of "forcible rape" as opposed to "rape." (They eventually dropped that language after critics countered that rape is always forcible.) Rep. Akin's comment, while unique for employing the outdated medical theory that women cannot become pregnant from rape, was just the latest attempt to restrict the meaning of sexual assault.

When Obama responded to Akin by questioning whether male politicians should be the ones "qualifying forcible rape versus non-forcible rape," he echoed generations of black and white women who have contested that distinction. They understood that their political and human rights were at stake in the way we define rape. They still are.

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Estelle Freedman, the Edgar E. Robinson professor in U.S. history at Stanford University, is the author of "No Turning Back: The History of Feminism and the Future of Women" and a co-author of "Intimate Matters: A History of Sexuality in America."

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