A Revolution in Rape

Keeping a woman's past sex life out of court

When it was time for "Alice," 19, a beautician trainee, to leave her favorite neighborhood bar in Detroit, she would occasionally accept a ride home from men. One night last December a fellow with a familiar face offered her a lift, so she hopped into his car. He promptly pulled a gun and took her to his house. There he and three other men hit her a few times, then raped her.

Until a few years ago, Alice's habit of accepting rides from strangers would have been the rapists' strongest defense. Since rape trials often hinge on the victim's word against the defendant's, a standard defense tactic has long been to make the woman appear to have been seeking sex. Courts allowed this, generally following the admonitory dictum on rape laid down in the 17th century by the English jurist Sir Matthew Hale: "An accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent." Over the years, rape became encrusted with rules to protect men from vengeful women: almost anything about the victim's sex life was relevant, and the prosecution had to prove that she had tried to resist the attack. As a result, conviction rates had been much lower for rape than for other violent crimes.

But now the laws are changing. Since the mid-'70s Congress and half the states have adopted "rape shield laws" that protect rape victims from being unfairly grilled about their past sexual activity. Michigan's comprehensive 1974 rape reform law has been the model. At a preliminary hearing for the man who offered Alice a ride, the defendant's lawyer started asking her questions about her penchant for hitchhiking with men. Citing Michigan's shield law, the prosecutor successfully objected to that line of questioning. Unable to discredit Alice's testimony, the defense lawyer quickly made a deal: his client would plead guilty to criminal sexual conduct in the first degree if the prosecutor agreed to drop charges of possessing a firearm and robbery. Still to be sentenced, the man will probably get 15 to 20 years.

Without the reform rule, the crime against Alice might never have been prosecuted. And if it had come to trial, says Susan Rohr, an adviser at the three-year-old Detroit Rape Counseling Center, "the defense attorney would have done everything to keep the jury from thinking about the facts of the crime. Instead, he would have tried to make it seem that the victim was in the habit of making quick acquaintances with strange men in a bar late at night."

Changes in rape laws have been pressed by women's rights groups, who argue that rape victims have too often been "raped a second time" by the criminal justice system, and by law reformers, who want rape treated rationally, like any other violent crime. One step has been to drop the word rape. Many of the new statutes speak in terms of sexual assault, sexual battery or criminal sexual conduct and carefully define the act.

A bill now before the Texas legislature would go even further and eliminate any mention of sex; instead, it lists in clinically bland terms the various forms that forced intercourse can take and calls them all assault. Aggravated rape becomes aggravated assault, a first-degree felony punishable by five years to life. The Texas bill would also follow those in other states by being "sex neutral,"; or containing no assumption that rape is only something done by men to women.

Almost all states no longer require the victim to prove that she resisted the rape to the utmost because lawmakers now recognize that resistance can risk further harm. Another feature of the old rape statutes that is disappearing is draconian penalties, which have been counterproductive: too often, juries would acquit rather than send a rapist to jail for a term of 20 years or more. Under the new laws, sentences are more flexible: basically, the greater the violence, the stiffer the penalty. In Michigan, a man who already had a rape on his record was convicted of another, this one at gunpoint, and sentenced to eight to 15 years. But in another case, a man who slapped and raped an acquaintance he occasionally met in a bar, but who used no other force and had no criminal record, got off with probation plus payment of court costs. Under the old law the prosecutor might not have bothered to take the case to trial, since the jury would probably not have convicted the man.

Along with changing social attitudes that have made women more willing to report rapes, as well as more careful and sensitive police work, the Michigan law has helped dramatically increase the number of rape convictions. In that state, there were 90% more successful prosecutions in 1977 than in 1972, while rapes that have been reported climbed by 30% and arrests by 62%. But defendants still get a fair trial. In Michigan, the law specifically admits proof of prior sex with the defendant. In some other states, the shield laws call for a balancing test: the judge considers whether the evidence of a woman's past history might prove that she really did consent to intercourse or if it would simply prejudice the jury against the victim. Usually he hears the evidence privately in his chambers before deciding whether the jury should hear it.

One change in the rape statutes that is likely to come more slowly is the abolition of the old common law rule that a husband cannot be convicted for raping his wife. A few states--Oregon, New Jersey, Delaware and Nebraska--have done so, and others are still considering whether to take that leap into the marital bedroom. But the difficulty was illustrated last December by the celebrated Rideout case in Oregon. Mrs. Rideout accused Mr. Rideout of rape and left him, but the jury acquitted, and two weeks later the Rideouts were reconciled, lovingly gazing at each other at a cocktail lounge for the benefit of a photographer. When last heard from they were separated again.

This file is automatically generated by a robot program, so viewer discretion is required.