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New York Governor Andrew Cuomo has created a new police unit to address what he calls “an epidemic” of rape on campuses. Rape has always been a danger for women at college—and almost everywhere else. For a long time, though, it was easy for many people to ignore, partly because the legal barriers to proving a rape case were immense.

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In a paper for Jurimetrics, Cassia C. Spohn looks at how feminist legal reformers helped change those laws in the 1970s and early 1980s.

Historically, the crime of rape was defined narrowly, applying only if the victim was female, the rape involved penile-vaginal penetration, and the perpetrator used force. It was also legally impossible for a man to rape his wife.

Meanwhile, state laws generally defined consent so that victims had to physically resist their attackers for the assault to be understood as rape. In some states, the legal standard was resisting “to the utmost.” In 1906, the Wisconsin Supreme Court reversed one rape conviction because the victim had only struggled and screamed, ruling that “there must be the most vehement exercise of every physical means or faculty within the woman’s power to resist the penetration of her person.”

The reformers noted that this demand was unlike any standard applied to other victims of violent crime, and that physically resisting an attack could be incredibly dangerous.

Another typical requirement of pre-1970s rape laws was that there must be evidence beyond the victim’s testimony to corroborate her story. Unlike with other kinds of crime, some jurisdictions required that judges tell the jury to evaluate rape victims’ testimony “with special care in view of the emotional investment of the witness and the difficulty of determining the truth with respect to alleged sexual activities carried out in private.”

Meanwhile, defense attorneys were permitted to use the victim’s sexual past against her. The argument was that sexually experienced women were both more likely to consent to sex and more likely to lie afterwards.

Legal reforms changed all this, often replacing the single crime of rape with different degrees of sexual assault and battery, depending on factors including the nature of the assault and the level of violence used. Most states also acknowledged that men and boys could be victimized by sexual assault, eliminated the spousal exemption and corroboration requirement, and changed the definition of consent to eliminate the requirement that the victim physically resist. The federal government and almost all states also passed “rape shield laws,” limiting evidence about victims’ sexual histories.

Ultimately, Spohn notes, these changes had less impact than reformers had hoped on rape convictions, which are still very hard to achieve. But she suggests their most important effect may have been a symbolic one, changing the way we talk about rape.

“The rape law reforms may have started a process of long-term attitude change that is difficult to measure… but may ultimately lead to instrumental change,” she concludes.


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Jurimetrics, Vol. 39, No. 2 (WINTER 1999), pp. 119-130
American Bar Association