The Law of Rape

Posted: Thu, Sep 12, 2024

Background

Property theory of rape: a wrong against the father or husband as the property owner.

  • Property: the woman and her chastity.
  • Not a wrong against the woman herself: “crime of man against man” vs. “crime of man against woman” (Brownmiller 1975, 18).
  • Just like you can’t steal your own property, you can’t rape your own wife.
    • ~Coverture

William Blackstone, Commentaries on the Laws of England: “carnal knowledge of a woman forcibly and against her will.”

  • “carnal knowledge” by a man through penile penetration
  • “a woman,” not his wife
  • “forcibly” + “against his will”
    • The focus is to protect men from the perceived high risk of false accusations: the utmost resistance requirement.

A.R.S. § 13-611 (1961)

  • “accomplished with a female, not the wife of the perpetrator”

Two Reform Proposals

  • Lose consent: redefine rape in terms of force.
    • “Violence, not sex.”
  • Lose force: redefine rape in terms of nonconsent.
    • This has become the prevailing approach.