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.
- “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.