Post by Planet Asia on Jan 8, 2006 16:40:47 GMT -5
From a legal standpoint, rape laws have their origins in laws about property, since women were considered to be property under Anglo-Saxon law. Transplanted from England, the law traditionally defined rape as "intercourse between a man and a woman not his wife, against the woman's will and without her consent."
The history of rape and rape law in the United States is full of contradictions. "On paper," for hundreds of years, rape has been illegal and subject to severe penalties. Yet it has been effectively legal, because it has been almost impossible to prove in most circumstances. One type of rape charge historically has been easy to prove, namely that involving a Black man and a white woman. From slavery through the post-Civil War period and to some extent to the present, when a Black man/white woman rape has been claimed, the legal system and society generally have come down with full force on the alleged offender. The most common "justification" for lynching Black men was the claim that they had raped a white woman.
When a white woman claimed that a Black man raped her, the legal system treated her with much less suspicion than when a white woman claimed that a white man raped her. The courts historically provided Black men virtually no protection from false rape charges, yet they protected white men even if the charges were true.
Rape of Black women during slavery was legal for white men. Rape of slaves by slaves was legal. The KKK and white mobs used rape of Black women as a weapon of terror during Reconstruction. Following Reconstruction, and to some extent to the present, rape of Black women by white and Black men was ignored and/or minimized by the legal system. Several recent studies have found that historical patterns still continue. For example, a 1990 Texas study found that average prison sentences for men convicted of raping Black women were only one-fifth of average sentences for men convicted of raping white women. Some scholars conclude that of all racial combinations of rape charges, the legal system still treats accusations by Black women of rape by Black men the least seriously and accusations by white women of rape by Black men the most seriously.
Scholars have not conducted much historical or analytical work on rape of female Native Americans, Asian Americans, or Latinas and other groups. Rape of Amerindian women by colonizing Spanish soldiers in what is now California was frequent. Whites also raped Native American women but the incidence is impossible to estimate, as it is for rapes of white women by Indians.
Before the 1970s rape was widely seen as a sexual act of uncontrollable lust, not an act of violence. Critical to the concept of rape was the concept of women's "chastity." In traditional rape ideology, an "unchaste" (sexually experienced) woman lacked credibility and/or must have "wanted it" or consented. Only white women could be "chaste"; the law presumed that Black and probably other women of color were "unchaste." The historical treatment of rape charges often stemmed from men's extreme distrust of women (when the alleged perpetrator was white). Freudian theory posited that women fantasized rapes and fueled the legal system's suspicious attitude.
Police and prosecutors frequently have been hostile to women alleging rape. They threw out charges if the woman reported the rape too soon, or not soon enough after the event. Rape charges had to be supported by physical evidence, while other crimes did not.
Until recently it was impossible to gather meaningful estimates of the incidence of rape; incidence is still hard to gauge. The 1990 FBI statistics show a total of 102,560 reported forcible rapes (including attempted rapes). Rape is statistically underreported, but the extent to which it is underreported is unknown. By comparing the 1990 FBI rape statistics cited above with statistics from studies of victims by the Justice Department, it is estimated that in 1990, 54 percent of forcible rapes were reported. Susan Brownmiller, in Against Our Will: Men, Women and Rape (1975), estimated that between one in five and one in twenty rapes were reported. It appears that reporting rates for rape have increased over the past twenty years.
Rape became widely recognized as a public policy issue in the 1970s, sparked in part by Against Our Will. Feminists criticized society's treatment of rape, although they often did not challenge the racist aspects of the culture's attitude toward rape. Feminists reconceptualized rape as a crime of violence and as part of a range of violence against women. This approach gained wide acceptance, although some feminists believed that the specifically sexual aspect of rape should be emphasized more.
In the 1970s and 1980s rape reform efforts spread around the country. Activists sought to improve the treatment of victims, expand the definition of rape, and increase the conviction rate for offenders. Feminists set up rape crisis centers and rape hotlines that helped women deal with the legal system and supported rape victims. Almost every state passed rape reform laws. Many laws shielded victims from being forced to reveal their sexual histories during cross-examination, a change from traditional tactics. Activists also tried to change the definition of rape so that it would focus more on the defendant's behavior and less on the victim and whether she resisted sufficiently. Marital rape, previously legal, was outlawed in many states although it still remains legal in some circumstances. Police training programs to raise awareness were initiated. Increased numbers of women became prosecutors, defense attorneys, and judges.
In the late 1980s society increasingly recognized the act of forced sex in social situations, which came to be known as "date" or "acquaintance rape." Researchers at several college campuses found that one in five women reported being forced by a male companion to have intercourse. Activists made efforts to deal with the problem. Others attracted publicity in the early 1990s by claiming that feminists were exaggerating the problem.
It is not clear what difference the changes since the 1970s have made overall. Some argue that the legal system treats rape the same way that it did, although the written laws have changed. Indeed, several empirical studies have found that rape law reforms have made no difference in the arrest, prosecution, or conviction of rapists. The criminal justice system retains race-based, gender-based, and other inequities. Yet, the work that has been done brings society closer to the recognition that women have an absolute right to be free from forced sex.
college.hmco.com/history/readerscomp/women/html/wh_038006_rape2.htm
The history of rape and rape law in the United States is full of contradictions. "On paper," for hundreds of years, rape has been illegal and subject to severe penalties. Yet it has been effectively legal, because it has been almost impossible to prove in most circumstances. One type of rape charge historically has been easy to prove, namely that involving a Black man and a white woman. From slavery through the post-Civil War period and to some extent to the present, when a Black man/white woman rape has been claimed, the legal system and society generally have come down with full force on the alleged offender. The most common "justification" for lynching Black men was the claim that they had raped a white woman.
When a white woman claimed that a Black man raped her, the legal system treated her with much less suspicion than when a white woman claimed that a white man raped her. The courts historically provided Black men virtually no protection from false rape charges, yet they protected white men even if the charges were true.
Rape of Black women during slavery was legal for white men. Rape of slaves by slaves was legal. The KKK and white mobs used rape of Black women as a weapon of terror during Reconstruction. Following Reconstruction, and to some extent to the present, rape of Black women by white and Black men was ignored and/or minimized by the legal system. Several recent studies have found that historical patterns still continue. For example, a 1990 Texas study found that average prison sentences for men convicted of raping Black women were only one-fifth of average sentences for men convicted of raping white women. Some scholars conclude that of all racial combinations of rape charges, the legal system still treats accusations by Black women of rape by Black men the least seriously and accusations by white women of rape by Black men the most seriously.
Scholars have not conducted much historical or analytical work on rape of female Native Americans, Asian Americans, or Latinas and other groups. Rape of Amerindian women by colonizing Spanish soldiers in what is now California was frequent. Whites also raped Native American women but the incidence is impossible to estimate, as it is for rapes of white women by Indians.
Before the 1970s rape was widely seen as a sexual act of uncontrollable lust, not an act of violence. Critical to the concept of rape was the concept of women's "chastity." In traditional rape ideology, an "unchaste" (sexually experienced) woman lacked credibility and/or must have "wanted it" or consented. Only white women could be "chaste"; the law presumed that Black and probably other women of color were "unchaste." The historical treatment of rape charges often stemmed from men's extreme distrust of women (when the alleged perpetrator was white). Freudian theory posited that women fantasized rapes and fueled the legal system's suspicious attitude.
Police and prosecutors frequently have been hostile to women alleging rape. They threw out charges if the woman reported the rape too soon, or not soon enough after the event. Rape charges had to be supported by physical evidence, while other crimes did not.
Until recently it was impossible to gather meaningful estimates of the incidence of rape; incidence is still hard to gauge. The 1990 FBI statistics show a total of 102,560 reported forcible rapes (including attempted rapes). Rape is statistically underreported, but the extent to which it is underreported is unknown. By comparing the 1990 FBI rape statistics cited above with statistics from studies of victims by the Justice Department, it is estimated that in 1990, 54 percent of forcible rapes were reported. Susan Brownmiller, in Against Our Will: Men, Women and Rape (1975), estimated that between one in five and one in twenty rapes were reported. It appears that reporting rates for rape have increased over the past twenty years.
Rape became widely recognized as a public policy issue in the 1970s, sparked in part by Against Our Will. Feminists criticized society's treatment of rape, although they often did not challenge the racist aspects of the culture's attitude toward rape. Feminists reconceptualized rape as a crime of violence and as part of a range of violence against women. This approach gained wide acceptance, although some feminists believed that the specifically sexual aspect of rape should be emphasized more.
In the 1970s and 1980s rape reform efforts spread around the country. Activists sought to improve the treatment of victims, expand the definition of rape, and increase the conviction rate for offenders. Feminists set up rape crisis centers and rape hotlines that helped women deal with the legal system and supported rape victims. Almost every state passed rape reform laws. Many laws shielded victims from being forced to reveal their sexual histories during cross-examination, a change from traditional tactics. Activists also tried to change the definition of rape so that it would focus more on the defendant's behavior and less on the victim and whether she resisted sufficiently. Marital rape, previously legal, was outlawed in many states although it still remains legal in some circumstances. Police training programs to raise awareness were initiated. Increased numbers of women became prosecutors, defense attorneys, and judges.
In the late 1980s society increasingly recognized the act of forced sex in social situations, which came to be known as "date" or "acquaintance rape." Researchers at several college campuses found that one in five women reported being forced by a male companion to have intercourse. Activists made efforts to deal with the problem. Others attracted publicity in the early 1990s by claiming that feminists were exaggerating the problem.
It is not clear what difference the changes since the 1970s have made overall. Some argue that the legal system treats rape the same way that it did, although the written laws have changed. Indeed, several empirical studies have found that rape law reforms have made no difference in the arrest, prosecution, or conviction of rapists. The criminal justice system retains race-based, gender-based, and other inequities. Yet, the work that has been done brings society closer to the recognition that women have an absolute right to be free from forced sex.
college.hmco.com/history/readerscomp/women/html/wh_038006_rape2.htm