Abstract
The author provides a mixed-methods assessment of U.S. rape statutes to assess progress in reform. Contemporary statutes offer restrictive frameworks for distinguishing criminal from noncriminal sexual violence, many of which are grounded in gendered and heterosexist assumptions. Fourteen states retain gender restrictions in rape statutes. Twenty maintain marital distinctions that limit accountability for spousal rape. Furthermore, whereas explicit resistance requirements have been eliminated nationwide, implicit resistance expectations manifest through emphasis on physical force and involuntary intoxication. Analyses conclude with recommendations for further legal reform and a discussion of the potential for legislation to affect broader social perceptions of rape.
The social problem of rape has received considerable attention in recent debates concerning abortion and reproductive policy. The 2012 election season featured nine candidates whose prolife politics included the denial of abortion services to rape survivors. These included Senate candidate Todd Akin, who suggested that pregnancy could not result from “legitimate rape,” and Vice Presidential candidate Paul Ryan, who insisted that “the method of conception” had no bearing on the morality of pregnancy termination (both quoted in Stan, 2012). Such comments provoked considerable outrage. The fact that many of these candidates were male suggested a connection between such radical antiabortion politics and (men’s) violence against women. After male rapists committed direct physical violence against women, male politicians attempted to force those women to maintain resultant pregnancies, quite literally to bear the consequences of the violence perpetrated against them. Notably, many such women would then have faced “a lifetime tethered to their rapists,” as numerous states permit offenders to claim parental rights when rape results in conception (Prewitt, 2010, p. 831). Many who considered themselves prolife proved unwilling to support such extreme positions (Manninen, 2012), to say nothing of those who considered themselves prochoice.
All nine candidates lost, although disputes over “rape exceptions” continue to feature prominently in state politics. It remains to be seen whether scholars and activists will seize this opportunity to raise awareness regarding societal responses to sexual violence. Indeed, outrageous as Akin’s comments were, his reference to “legitimate rape” was hardly novel. This notion lies at the core of many feminist efforts to address rape; the crucial difference here is that, whereas Akin and others strove to discredit women’s narratives of victimization by narrowing popular and institutional understandings of what constitutes rape, feminist activists have worked to expand those understandings. Such distinctions are particularly important to the work of rape law reform. The boundaries of legitimate sexual violence are often explicitly at stake in this arena. So too is the social legitimization of victims’ narratives of violence, and the support granted or denied assailants’ defenses of their conduct.
Building on the momentum of recent disputes regarding rape and social policy, including public outcry over Akin’s comments, I investigated conceptualizations of sexual violence in felony rape statutes in the United States. Analyses explored (a) the extent to which contemporary legislation reflects the aims of feminist law reformers and (b) scripted possibilities for consensual and nonconsensual sexual contact produced and (re)inscribed by legislation. Although rape law reformers have had a demonstrable impact nationwide, some feminist aims remain unrealized. Statutes continue to offer restrictive frameworks for identifying (criminally) legitimate sexual violence, many of which are grounded in gendered and heterosexist assumptions regarding who is capable of perpetration, who is capable of being victimized, and which incidents of violence should be taken the most seriously. These assumptions are detrimental to the feminist aim of reducing sexual violence, including that perpetrated by men against women.
Rape Law Reform in the United States
Legal reform has been a priority throughout the history of feminist organizing against rape in the United States. Rape law reform, in particular, emerged as “a key item on the feminist agenda” in the early 1970s (Estrich, 1987, p. 80; Spohn & Horney, 1992).
Initial critiques were substantial. Rather than view rape as a personal problem, and the sole concern of specific perpetrators and victims, feminist activists insisted that rape was a social problem driven by patriarchy; systemic male dominance and female subordination manifested through individual men’s acts of violence toward women (Brownmiller, 1975). Rather than approach rape as a property crime, or more specifically as a threat to the resources of rape victims’ husbands and fathers, activists further insisted that rape be reconceived as a threat to victims’ welfare and women’s safety and autonomy more broadly (Berger, Searles, & Neuman, 1988). Rejecting the patriarchal assumption that marriage implied consent, advocates also pushed for the abolition of marital exemptions or statutes that precluded prosecution of sexual violence between spouses (Berger et al., 1988; Gelles, 1977).
Activists levied additional challenges at evidentiary standards and definitions (Berger et al., 1988; Corrigan, 2013; Estrich, 1987; Spohn & Horney, 1992). More specifically, requirements that victims demonstrably resist their assailants, find third parties who might credibly corroborate their stories, and be prepared to share their sexual histories at trial were critiqued as unreasonable and harmful. Reformers advocated further for shifts in the names and definitions of sex offenses. Concerned that juries might be reluctant to convict some assailants of rape, but be more amenable to lesser charges, some pushed for discursive changes and an accompanying hierarchical array of offenses such as that achieved by replacing “rape” with several degrees of “criminal sexual conduct” (this approach also drew on the Model Penal Code of 1962, which promoted graded offenses). In addition, rather than limit the concept of rape to penile–vaginal assaults with male perpetrators and female victims, many pushed for the inclusion of oral and anal assaults, assaults with objects and body parts other than the penis, and for the recognition of men as potential victims.
Some of the greatest victories in this arena were swift. In the 1970s and 1980s, all 50 states enacted some measure of rape law reform. The nature and scope of such reforms varied considerably. Some states removed or lessened requirements for resistance and/or corroboration, and some changed official definitions of rape or supplemented rape statutes with other offenses to address different forms of violence. A variety of rape shield laws produced a complex spectrum of admissibility in regard to complainants’ sexual histories (e.g., in regard to whether complainants’ reputations, overall sexual histories, or prior sexual encounters specifically with defendants warrant admission).
Other reforms were slower to emerge. The Federal Bureau of Investigation (FBI) limited its definition of rape to penile–vaginal assault with male assailants and female victims until 2012; data collection was adjusted accordingly the following year (FBI, 2012). Marital exemptions were also slow to change. As of this moment, all 50 states have acknowledged the potential for criminal sexual violence within marriage. Yet, marital distinctions persist in the absence of exemptions; standards for consent and sentencing sometimes vary in accordance with marital status (Eskow, 1996; Whitman, 2012).
Evaluations of rape law reform have shown somewhat discouraging results (Bachman & Paternoster, 1993; Polk, 1985). Spohn and Horney (1992) conducted a comprehensive evaluation of reforms in six urban jurisdictions and found minimal changes in reporting, indictment, conviction, and incarceration rates. They further noted that rape shield laws varied considerably in their capacity to protect victims. Shield laws were notably limited, and even detrimental, where prior sexual encounters with defendants were deemed admissible; this made prosecution quite challenging in instances of spousal/partner rape. Estrich (1987) cast doubt on the capacity of reforms to reduce the influence of “real rape” stereotypes, which presume that the most legitimate incidents of rape are those in which a man attacks a woman he does not know in a public location (e.g., in an alley), that he uses tremendous force to subdue his victim, and that she resists to her utmost capacity (see also Ryan, 2011). Even reforms that eliminated resistance requirements seemed inadequate to the task of debunking such (mis)conceptions. Changes in evidentiary rules did not necessarily produce changes in jurors’ expectations, nor in defense attorneys’ capacity to exploit their expectations. Moreover, although many activists continue to demand the (re)conceptualization of rape as a crime against sexual autonomy, criminal statutes overwhelmingly emphasize offenders’ use of force over the violation of victims’ autonomy and bodily integrity (M. J. Anderson, 2016; Schulhofer, 1998, 2005).
More recent assessments of legal reforms have also demonstrated limited impacts. In a mock juror experimental study with 1,500 participants, Kahan (2010) found that individuals’ cultural values and beliefs shaped perceptions of an acquaintance rape case to a far greater extent than the specifics of legal statutes (see also Capers, 2011). In other words, participants’ preconceptions about the boundaries of legitimate rape affected their interpretations of evidence and recommendations for sentencing. Shen (2011) noted that decades of rape law reform had failed to substantially reduce violence or increase conviction rates. Critical of others’ “assumption[s] about the unalloyed success” of reforms, Corrigan (2013) argued that reforms unintentionally provided legal and medical institutions with new tools to undermine feminist arguments about gender inequality and sexual violence, and that their capacity to support victims remained largely unrealized.
Although numerous states have broadened statutes to incorporate multiple gendered patterns in sexual violence, following the recommendations of feminist activists and scholars, evaluation literature has lagged behind in this arena (Anders & Christopher, 2011; Martin & Powell, 1994; Schuller & Stewart, 2000; Spohn, Beichner, & Davis-Frenzel, 2001; Spohn & Holleran, 2001). In their assessment of police and prosecutor agreement regarding filing charges in rape cases, Holleran, Beichner, and Spohn (2010) restricted analyses to incidents with male defendants and female complainants in spite of a stated interest in assessing the role of victim characteristics. Frazier and Haney (1996) excluded cases with male victims from their analyses of attrition and victim experiences in processing rape cases, providing no rationale for this decision. The assumption that rape is committed by men against women remains so strongly ingrained that one study addressing “gender differences” in verdicts presumed that such differences pertained to jurors (e.g., men and women’s sentencing recommendations) rather than complainants and defendants (Schutte & Hosch, 1997).
More direct assessments of rape law reform have rarely addressed shifts in gendered discourse or the impact of reforms on state responses to sexual violence that is not perpetrated by men against women (see Capers, 2011, for an exception). Statistical assessments of reporting, investigation, prosecution, and sentencing often explicitly restrict analyses to cases with female defendants and male complainants, adopt gender nonspecific language such as “victim” and “offender” in study descriptions while limiting analyses to female defendants and male complainants, or group all cases together such that any shifts in the reporting or processing of cases with male complainants and/or female defendants are obscured (Bachman, 1993; Bachman & Paternoster, 1993; Baumer, Felson, & Messner, 2003; Spohn & Horney, 1992). In a recent study of rape reporting behaviors, for example, Clay-Warner and Burt (2005) utilized data from the National Violence Against Women survey—which included male and female participants—and noted that “the current study analyzes data only from the female participants” without providing further explanation (p. 161).
Qualitative assessments of rape law reform have also maintained an emphasis on more conventional gender dynamics. Spohn and Horney (1992) conducted in-depth interviews with more than 100 judges, prosecutors, and defense attorneys in six major cities. In addition to asking general questions about the nature and impact of reforms, they presented participants with a series of case vignettes and asked about the likelihood of conviction, as well as the admissibility of various aspects of complainants’ sexual histories. Every vignette featured a female complainant and male defendant. Although this provided immensely valuable insights, it did not reveal anything about professionals’ impressions of gender inclusive legislation, or the perceived likelihood of conviction in same-sex cases or cases involving male complainants and female defendants (see also Estrich, 1987). Corrigan (2013) discussed male victims twice in her book on rape law reform: once to justify her use of feminine pronouns to refer to all victims, given that “the vast majority of victims who report in the immediate aftermath of a sexual assault are female” (p. 53) and once to lament a resistance to feminist identity among contemporary rape crisis advocates, due to some participants’ concern that feminism was “incompatible with serving male victims [and] recognizing women as potential perpetrators of abuse” (p. 253). In both instances, any recognition of sexual violence perpetrated against men and/or by women was presumed at best unnecessary and, at worst, detrimental to feminist advocacy.
Finally, assessments of rape law reform have typically been limited to criminal justice outcomes, such as reporting and convictions. Such an approach ignores the potential for legislation to have broader influence. If, as Berger and colleagues (1988) suggested, “[l]aw reforms are aimed at achieving both the instrumental and symbolic goals of social movements” (p. 329), the discursive dimensions of reforms bear scrutiny in their own right (see also Loh, 1981). Furthermore, given the potential for legal institutions to influence perceptions of sexuality and consent in other institutions such as news and fictional media, as well as the general public (Edwards, Turchik, Dardis, Reynolds, & Gidycz, 2011; Loh, 1981; Simon & Gagnon, 1986), legal conceptualizations of sexual violence may have influence that extends well beyond this domain.
Sexual Script Theory: Criminal Statutes as Cultural Scenarios
In the early 1970s, as antirape activism was beginning to take root in the United States, Simon and Gagnon (1973/2005) challenged scholarly portrayals of sexuality as spontaneous or devoid of social meaning. They suggested that our sexual desires and (inter)actions rely on the scripts to which we have access. Even when the “elements” of erotic action abound—people who find one another attractive, sufficient free time, privacy—“the probability of something sexual happening will, under normal circumstances, remain exceedingly small until either one or both actors organizes these behaviors into an appropriate script” (p. 13). When “something sexual” does occur, scripts continue to wield influence. Actors may expect a particular order of events that initiates with flirtation, leads to kissing and over-the-clothes touching, gives way to increasing nudity and physical contact, and culminates in orgasm. Deviations from activated scripts may alter or even cease the sexual components of an encounter.
Sexual script theory began as a twofold approach to sexuality that incorporated interpersonal scripts, through which we negotiate sexual interactions with others, and intrapsychic scripts, which comprise individual conceptions regarding what sexual encounters can and should be like. Simon and Gagnon (1986) later expanded their model to include cultural scenarios, the broader social frameworks through which actors learn what is desirable and how (not) to engage sexually and romantically.
It should be noted that many antirape activists and scholars have argued that rape should be approached as an inherently violent and nonsexual offense, which would make sexual script theory somewhat irrelevant or distracting (Brownmiller, 1975; Estrich, 1987). However, others have suggested that sexual violence need not be framed as an exclusively power-driven or sexuality-driven phenomenon (e.g., Sheffield, 1987). In this sense, engaging sexual script theory while also approaching rape as an inherently violent act is promising for theoretical analysis. Moreover, given that many rape (non)convictions hinge upon notions of consent, and the distinguishing of consensual from nonconsensual encounters, this framework is particularly appropriate for an assessment of rape law. Indeed, numerous scholars have incorporated Simon and Gagnon’s (1986) insights into analyses of sexual violence, particularly in regard to rape myth acceptance. Such misconceptions as “most women lie about being raped” and “women who say ‘no’ are just playing hard to get” function as cultural scenarios that influence intrapsychic scripts and social behavior (Ryan, 2011). A nontransgender, straight man might internalize these scenarios and draw upon them when interacting with prospective partners. Verbal refusal might activate seduction scripts, rather than rape scripts. He might expect to play the role of “charming, persistent man” alongside a woman who “tempts and teases” him. Should he go so far as to sexually assault women, he might excuse his actions and deny their status as victims/survivors by invoking rape-supportive cultural scenarios. Empirical data reinforce these connections. Acceptance of rape myths, at least among nontransgender men, is positively associated with rape proclivity (Bohner, Jarvis, Eyssel, & Siebler, 2005; Lonsway & Fitzgerald, 1994). Further complicating matters is the fact that, for many adults, intrapsychic understandings of “typical seduction” and “typical rape” have some elements in common (Littleton & Axsom, 2003).
Most efforts to apply sexual script theory to sexual violence have focused on intrapsychic perceptions. Far less attention has been paid to the institutions that produce and (re)inscribe cultural scenarios. The present study addresses this gap in literature through an assessment of criminal statutes. Designing legislation requires state officials to commit to specific conceptualizations of sexual violence. This may include determining which forms of assault are the most serious, delineating standards for force and resistance, and identifying pathways for the communication of consent and refusal. Legislators may appeal to popular assumptions regarding which actors are most at risk of victimization and perpetration, or take a general approach that renders anyone capable of enacting either role (Woolgar & Lezaun, 2013). Indeed, criminal statutes may contribute to widespread disagreements over the distinction(s) between rape and seduction through the use of vague and/or erotic language (e.g., references to fondling, fellatio, and cunnilingus) to define criminally violent acts.
It is unsurprising that cultural scenarios embedded within criminal statutes may influence criminal justice processes. Police, attorneys, judges, and jurors are required to approach statutes as guidelines for distinguishing among criminally violent, noncriminally violent, and consensual scenarios. Yet, actors in other arenas may also look to legislation in shaping their conceptualizations of sexual violence. State institutions may influence popular understandings, news and fictional media depictions, and scientific research. In this sense, state legislators may be perceived as coproducing knowledge about sexual violence along with scientists and other institutional actors (Jasanoff, 2004). For example, Koss, Gidycz, and Wisniewski’s (1987) study of sexual violence among college students, which found that one in four college women had experienced attempted or completed rape in her lifetime, drew on federal and Ohio state legislation for their definition of rape. Their research attracted considerable state and media attention, and continues to influence antirape activism and policy in the United States.
One limitation of sexual script theory is its treatment of gender categories as binary, fixed, and existent prior to sexuality (Richardson, 2007). In Simon and Gagnon’s (1973/2005) original analysis, actors were thought to acquire gender identifications early in life. Female-assigned children were presumed to develop into girls and women who would learn from feminine scripts and engage in feminine behaviors throughout their sexual careers. Male-assigned children were presumed to do the “opposite.” The possibility that sexuality might produce or otherwise contribute to gendered identities and behaviors went unacknowledged (Butler, 1990/2006). The potential for cross-identification with gendered scripts (see Muñoz, 1999) for men to enact feminine sexualities and women to enact masculine sexualities, as well as the possibility that anyone might enact transgender identities and/or sexualities, likewise went unacknowledged. In the context of sexual violence, a comparable approach would presume that men could only enact the role of assailant and that women could only enact the role of victim. Although this framework ensures that sexual script theory may be helpful for noting sexist dimensions in (hetero)sexual encounters, as men and women receive (and internalize and/or challenge) different messages, it can be limiting for analyses of queer encounters.
Dominant institutional and popular conceptions of rape draw on distinctly gendered assumptions about (masculine) aggression and (feminine) vulnerability. Prior to rape law reform, all 50 states explicitly reinscribed such assumptions by limiting the crime of rape to penile–vaginal assaults with male perpetrators and female victims. Reformers then encouraged legislators to expand their definitions to incorporate more forms of unwanted sexual contact and, by extension, recognize the possibilities of male victimization and female perpetration. Although it is generally acknowledged that all states enacted reforms, and took guidance from feminist activists in doing so (Spohn & Horney, 1992), the extent to which gendered assumptions persist in sex offense statutes remains an empirical question.
Gendered Assumptions and the Reduction of Violence Against Women
It may seem peculiar or unnecessary to draw attention to gendered assumptions in sexual violence law. Indeed, as described above, rape law reform developed through feminist organizing. Brownmiller (1975) pioneered a feminist model of rape that connected individual men’s sexual violence against individual women with societal gender inequality and patriarchy. Others drawing from this model have found that sexual violence—at least that perpetrated by men against women—reduces as gender inequality reduces (Whaley, 2001; Yodanis, 2004). Such work has demonstrated the significance of patriarchy as a cultural force. Rather than merely seek out characteristics of “typical” rapists or promising avoidance strategies, Brownmiller and others have demanded that researchers, providers, and state officials target the social conditions that contribute to a rape-supportive culture. Efforts to incorporate other dimensions of social inequality, such as race and class (Clemans, 2005; Eschholz & Vieraitis, 2004; White, Strube, & Fisher, 1998), have made the feminist model of rape even more valuable to antiviolence scholarship and activism. For these reasons, many feminist activists have approached rape as a civil rights issue, arguing that men’s sexual violence toward women represents a particularly pervasive and harmful dimension of sexist violence. Rape law reformers frequently looked to existing civil rights laws as a model. Feminist organizing around civil rights, including (successful) advocacy for Title IV and Title IX and (unsuccessful) efforts to pass the Equal Rights Amendment, may thus be seen as connected with feminist organizing around rape law reform and the reduction of violence against women more broadly.
Yet, there are limitations to the feminist model of rape. Even when expanded to address intersecting dimensions of inequality, this model tends to operate with a narrow conception of women: Only those who are female-assigned and woman-identified seem to qualify. Transgender women experience sexual violence at rates equal to or greater than nontransgender women (see Clements-Nolle, Marx, & Katz, 2006; Kenagy, 2005; Stotzer, 2009, for data on transwomen; see Black et al., 2011; Tjaden & Thoennes, 2000, for nontransgender women). Transgender women are women, and violence against them is violence against women. Unfortunately, the attribution of violence against women to male domination offers little to those women who happen to be male-assigned. This is of particular concern in legal contexts, as transgender women may be classified as male or female depending upon their transition pathways, as well as their access to and pursuit of legal status changes.
Further limitations concern the feminist model’s inability to account for sexual violence perpetrated by women and/or against men, as well as any sexual violence involving persons with nonbinary gender identities. Even as feminist scholars and activists criticize the depictions of men as the sole or primary initiators and women as the sole or primary recipients of consensual sexual activity (Scott & Jackson, 1996; Tomsen, 2009), many embrace this sort of framework when it comes to rape. To revisit scholarship on rape myth acceptance, many analyses critique such misconceptions as “women want to be raped” and “men can’t control themselves” while sparing such notions as “only men can rape” and “only women can be raped” from scrutiny (Edwards et al., 2011; Ryan, 2011). Lonsway and Fitzgerald (1994) went so far as to limit rape myths to “attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women” (p. 134). Exceptions tend to include works that differentiate between male and female rape myths (Chapleau, Oswald, & Russell, 2008; Davies, Gilston, & Rogers, 2012).
Although men’s violence against women accounts for a substantial proportion of sexual violence more broadly, exclusive attention to patriarchy—or rather, to violence that may be accounted for entirely by patriarchy—obscures the reality of other gendered patterns in sexual violence (Capers, 2011; Levine, 2015; Rothman, Exner, & Baughman, 2011) and the role of other social forces such as racism and ableism (Clemans, 2005; Eschholz & Vieraitis, 2004). Furthermore, the conflation of sexual violence with men’s violence against women is detrimental to the cause of reducing violence against women for at least two reasons: First, this encourages problematic associations of womanliness with safety, thereby obscuring violence perpetrated by women against people of all genders, including other women (Girshick, 2002); second, this reinforces portrayals of women as passive, disempowered, and vulnerable, ever the prospective targets of (masculine) power (Stemple, 2009). This is by no means to diminish the role of patriarchy as a causal force but rather to argue for an expansion of the patriarchy-based model to address all gendered patterns in violence.
Sex offense statutes may challenge or reinforce associations of masculinity with aggression and femininity with vulnerability. Compounding insults with the threat of injury, statutes may further punish (feminine) actors for vulnerability through expectations regarding force and resistance. The aims of reducing violence against women, and of reducing sexual violence in general, may be furthered by exposing and challenging gendered and heterosexist assumptions in criminal law.
Method
I conducted content analyses of the felony sex offense statutes in all 50 states and Washington, D.C. (henceforth: states). Felonies were selected as indicative of the violence considered most serious. Analyses took three forms: (a) quantitative assessment of statutes, with a predetermined coding family based on the aims of rape law reform; (b) assessment of state approaches to felony sex offenses, using the same codes; and (c) qualitative assessments of statutes and state approaches, utilizing open coding to identify and explore additional conceptual themes (Emerson, Fretz, & Shaw, 2011).
Quantitative Analysis of Offenses
Statutes were selected for inclusion if they addressed any felony sex offenses that met the following criteria: (a) completed physical contact between one victim and one offender; (b) victims and offenders who were legally capable of consensual sexual contact, even if victims’ capacity to consent might become temporarily impaired; (c) illegality was not tied to offenders’ criminal history; and (d) sexual contact was nonconsensual (though bans on consensual sodomy were ruled unconstitutional in Lawrence v. Texas, 539 U.S. 558 [2003]; they remain on the books in some states). Noncontact offenses and attempted assaults, statutory offenses, assaults among actors whose relationship prohibited legal sexual contact (e.g., siblings, wardens, and inmates), and assaults in which offenders secured compliance through deception (e.g., posing as a medical doctor) were excluded. Assaults against persons whose chronic illness or disability status rendered them legally unable to consent were also excluded from analysis. Cultural scenarios regarding consensual and nonconsensual sexual contact differ considerably based on the presumed capacities of the actors involved. Although assumptions regarding disability in sex offense law are very much worthy of investigation, these were beyond the scope of this inquiry. Statutes were accessed through a compilation by AEquitas, current as of July 2012 (Whitman, 2012), supplemented by state websites.
As some statutes contained multiple offenses, each was treated as comprising one or more items for analysis. New Mexico’s Criminal Sexual Penetration (§ 30-9-11) includes details for first, second, and third degree felonies, and was thus treated as comprising three items. Hawaii’s Sexual Assault in the Third Degree (§ 707-732) addresses unwanted sexual penetration via nonphysical force and unwanted sexual contact without penetration via mental incapacitation or physical helplessness. This statute was treated as comprising two items that addressed two distinct forms of assault. Statutes containing state definitions for force, sexual contact, mental incapacity, and other relevant terms were consulted repeatedly. Items were coded along the following dimensions:
Gender
Items that provided explicit restrictions regarding actors’ genders were classified as “overtly gendered.” Items with implicit restrictions, such as those that addressed “sexual intercourse” where this concept was limited to penile–vaginal intercourse, but made no direct references to males or females, were classified as “covertly gendered.” All others were coded as gender inclusive. Items were further coded in regard to any gender restrictions for offenders and victims, and the relative sexes of both parties (i.e., different-sex only, same-sex only, or both).
Marital distinctions
Any item that distinguished between married and unmarried persons was coded as including a marital distinction. This included cases in which marital and nonmarital assaults were addressed in separate statutes, or in which standards for force and/or sentencing guidelines varied in accordance with marital status. Items that did not address marital status, or that included marital exceptions that were negated elsewhere, were coded as lacking marital distinctions.
Force and injury
Force requirements were assessed via the following categories: use of a weapon (cross-coded with physical force), physical force (e.g., threatened or actual physical violence, restraining, or kidnapping), nonphysical force (e.g., nonphysical coercion, such as threatening to expose a secret, threatening to cause property damage, threatening to harm a third party in the future), no force (e.g., sexual contact without consent, where “without consent” was not elsewhere restricted to incidents involving force or coercion). Items were further coded in regard to any specified injury requirements via the following categories: physical injury (cross-coded with physical force) and nonphysical injury (e.g., mental anguish). Categories of force and injury were not mutually exclusive.
Barriers to consent
Actors who are legally capable of consent may be rendered temporarily unable to do so. Offenders may be judged guilty of criminal sexual violence if they intentionally produce, or seek to exploit, such circumstances. Items were coded in regard to whether mental incapacitation due to intoxication and physical helplessness (i.e., sleep or unconsciousness) were specified as barriers to consent. References to intoxication were further categorized as voluntary and/or involuntary insomuch as was possible. Clear restrictions to involuntary intoxication, such as statutes that specify substances administered without a victim’s consent, were classified accordingly. Where intoxication was mentioned as a barrier, but without such clear restrictions, statutes were coded as (potentially) addressing both voluntary and involuntary consent. References to physical incapability of resistance were coded as addressing physical helplessness, as per the definitions of multiple states. Unless explicitly tied to substance use, references to mental incapability of understanding or communicating (un)willingness to engage in sexual conduct were not classified as addressing incapacitation, as such matters were typically associated with ongoing mental/developmental disabilities.
Initially, I attempted to code statutes’ requirements for victims’ resistance. A lack of explicit information in this regard—no doubt due in large part to the efforts of antirape activists—led me to abandon the effort. Where concepts of adequate resistance are addressed, they are inferred through criteria regarding force, injury, and barriers to consent. This approach is consistent with the logic of criminal statutes. Iowa’s Resistance to Sexual Abuse (§ 709.5), for example, establishes that prosecutors need not establish evidence of physical resistance by a victim. Immediately thereafter, this statute clarifies that “circumstances surrounding the commission of the act may be considered in determining whether or not the act was done by force or against the will of the other.”
Specific acts
Items were coded in regard to the specific acts they involved. Those concerning sexual contact with penetration were classified as such; all others were coded as referring to sexual contact without penetration. Those concerning nonconsensual penetration were classified along two dimensions: penetration of (vaginal, anal, oral) and penetration by (penis, tongue, other body part, object). When items addressed (or seemed to potentially address) instances of being forced to penetrate an assailant (as opposed to solely addressing being forcibly penetrated), I coded them as including “being forced to penetrate.” 1 Items that included nonconsensual oral–vaginal contact were coded as addressing vaginal penetration by another person’s tongue (see Commonwealth v. Gary Guy, 1987). Items that included nonconsensual oral–penile contact were classified as addressing oral penetration by a penis. Items concerning nonconsensual oral–anal contact were classified as addressing anal penetration by a tongue.
State Approaches to Sex Offense Statutes
On completing initial statutory analyses, I assessed state-level approaches to criminalizing sexual violence. All states were classified in accordance with the codes and criteria detailed above. For example, if a state utilized explicitly gender-specific criteria for all analyzed statutes, that state was coded as taking an overtly gendered approach. Alternatively, if a state featured one statute with explicit gender restrictions and another without such restrictions, I classified that state as engaging both explicitly gendered and inclusive approaches. This produced a dataset of overall state approaches in regard to conceptualizing felony sexual violence.
Qualitative Analysis
Quantitative assessments were supplemented with in-depth, qualitative assessments of statutes and overall state approaches. These analyses were in part driven by the coding schema described above; rather than simply categorize a statute as providing a gender-restricted or inclusive conceptualization of sexual violence, I conducted closer readings to explore discursive strategies for conveying these conceptualizations. I utilized open coding (Emerson et al., 2011) to identify additional themes. Qualitative analyses were particularly productive for considering the capacity of criminal legislation to produce cultural scenarios regarding the boundaries of sexual violence, seduction, and consent.
Results
Details for quantitative analyses are included in Table 1. Coding resulted in the identification of 210 unique items across all states. Twenty-seven (13%) featured gender restrictions; these were overt or explicit in 11 items (5% of the complete sample, or 41% of all gender restricted statutes). Four items (2%) required male offenders, one (0.5%) required male victims, and two (1%) were restricted to female victims. One item (0.5%) required same-sex actors (both male), and 24 (11%) required one male and one female actor. Such items were frequently accompanied by what might be referred to as inclusive “counterparts.” These included sex offenses within the same state that lacked gender restrictions but carried the same penalties and classifications. For example, Oregon restricts Rape in the First Degree (§ 163.375; Class A felony) to forcible penile–vaginal penetration, and consequently to assaults involving one female and one male actor. Forcible Sodomy in the First Degree (§ 163.405; Class A felony) provides an inclusive counterpart, encompassing forcible oral–penile, oral–anal, oral–vaginal, and penile–anal penetration between actors of any sex. Thirty-one (15%) items were classified as counterparts based on these criteria. This indicates that a total of 58 items (28%) were implicated in gendered conceptualizations of felony sexual violence.
Statutory and State-Level Analysis of Felony Sex Offenses.
Forty-one items (20%) included marital distinctions, and these often concerned potential penalties and/or the nature of force required to violate legal consent. Some distinctions were written into the statutes, themselves (e.g., specifying sexual contact between persons not married to each other), whereas others were delineated in separate statutes.
A substantial majority of items specified the use or threat of physical force (n = 177, 84); one out of six specified nonphysical force (n = 35, 17%) and approximately one fifth addressed sexual violence without force (n = 46, 22%). Fifty-nine items (28%) mentioned physical injury, and 17 (8%) mentioned nonphysical injury. A majority specified physical helplessness (i.e., sleep or unconsciousness) and/or involuntary intoxication (i.e., intoxication due to substances administered against a person’s will or without their knowledge) as legal barriers to consent (n = 122, 58% and n = 125, 60%, respectively); only 41 (20%) specified voluntary intoxication as a barrier.
Approximately three quarters of items specified some form of penetration (n = 155, 74%), and most of these (n = 134, 90%) indicated that being forcibly penetrated and being forced to penetrate might qualify as equivalent forms of assault. Vaginal penetration was addressed the most frequently (n = 151, 72% of the sample and 97% of penetrative items), followed by anal and then oral penetration (n = 130, 62% and 112, 53%, respectively). Penetration by a penis was addressed most frequently (n = 130, 62% of the sample and 84% of penetrative items), followed by penetration by foreign objects and mouth/tongue (n = 114, 54% and 111, 53%, respectively). Penetration by body parts other than the penis or mouth/tongue were only clearly addressed in 70 statutes (33% of the whole sample or 45% of penetrative offenses).
State/District Approaches
Fourteen states (27%) featured some sort of gender restrictions; half of them incorporated such restrictions explicitly, and 13 of them supplemented these gendered statutes with gender-inclusive counterparts that carried the same potential penalties and felony classifications. All states incorporated male perpetration, male victimization, female perpetration, female victimization, assault with same-sex actors, and assault with different-sex actors into their felony sex offense statutes.
Twenty states (39%) incorporated marital distinctions into at least one felony sex offense included in this analysis. All but one (Mississippi) specified the use of physical force in at least one item, 20 (39%) specified nonphysical force, and 27 (53%) addressed sexual violence in the absence of force (a total of 29, 57%, incorporated nonphysical force and/or nonforced assaults into sex offense statutes). A substantial majority identified physical helplessness and involuntary intoxication as legal barriers to consent (n = 42, 82% and n = 47, 92%, respectively). One third of states (n = 17, 33%) incorporated voluntary intoxication as a barrier.
All states incorporated forced vaginal penetration, forced anal penetration, and penetration by a penis into their felony sex offenses. Fifty incorporated being forced to penetrate (all except Idaho), 50 addressed oral penetration (all except Oklahoma), 50 addressed penetration by objects (all except Louisiana), and 49 addressed penetration by mouth/tongue (all except Idaho and Oklahoma). Thirty-six states incorporated penetration by body parts other than the penis or mouth/tongue into the items included for analysis. Thirty-eight states included assaults without penetration among felony sex offenses (often referred to as sexual contact and often requiring the use of physical force).
Qualitative Themes
Three themes emerged from qualitative analyses. States that incorporated gender restrictions into felony sex offenses often produced discursive hierarchies, whereby men’s violence toward women was depicted as the most severe form of sexual violence even as other forms of assault were given identical classifications and potential penalties. Statutes and states that utilized marital distinctions produced spousal allowances, rendering it more difficult for sexual violence between spouses to achieve felony status. Victim accountability was more of an overarching theme. Even in the absence of explicit resistance requirements, repeated references to physical force and limited references to voluntary intoxication placed implicit burdens on victims to monitor their own behavior and to ward off potential assailants who used little or no physical force against them.
Gender restrictions and discursive hierarchies
Thirteen of the 14 states with gender restrictions in their felony sex offense statutes supplemented these with inclusive “counterpart” statutes that carried identical classifications and potential penalties. However, discursive approaches to naming and describing offenses ensured that conventional understandings of sexual violence appeared more serious than other forms of violence. This frequently took the form of restricting the term rape to penile–vaginal assaults, while using such terms as criminal sexual act or sodomy—terms that might not carry a clear message of nonconsent—for offenses that might involve either same-sex or different-sex individuals. Moreover, among assaults involving penetration, being forcibly penetrated by an assailant was often depicted as more serious than being forced to penetrate an assailant.
Among gendered statutes, the concept of “rape” was consistently limited to acts of penile–vaginal penetration and, in some instances, to incidents with male perpetrators and female victims. For example, Virginia Code § 18.2-61 (Rape) indicates that rape occurs when “any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person” under any of the following circumstances: use or threat of force against the complainant or a third party, use of the complainant’s physical helplessness, and/or use of the complainant’s mental incapacity due to intoxication (voluntary included). Sexual intercourse is limited to penile–vaginal penetration. Virginia Codes § 18.2-67.1 (Forcible Sodomy) and § 18.2-67.2 (Object Sexual Penetration) serve as counterparts. Forcible sodomy occurs when a defendant engages in or causes a complainant to engage in oral–vaginal, oral–penile, oral–anal, or penile–anal contact through the use or threat of force against the complainant or a third party, use of the complainant’s physical helplessness, and/or use of the complainant’s mental incapacity due to intoxication. Object sexual penetration occurs when a defendant engages in, or causes a complainant to engage in, the penetration of the vulva or anus of another person with a foreign object under any of these circumstances (excluding penetration for medical purposes). The penalties for all three offenses are identical. New York limits “rape” to forcible penile–vaginal intercourse, classifies forcible oral and anal intercourse as “criminal sexual acts,” and classifies forcible penetration of the vulva or anus with an object as “aggravated sexual abuse.” Indiana limits “rape” to forcible penile–vaginal intercourse and refers to forcible oral and anal intercourse, as well as forcible penetration by an object, as “criminal deviate conduct.”
These discursive approaches reveal much regarding the presumed gravity of different forms of sexual violence. Few would question the significance of rape, even if they might argue over the truth of specific narratives. Activists and scholars work tirelessly to challenge rape culture. Rape crisis centers provide services to survivors and their significant others throughout the United States, often with some government funding. Yet, it is rare that one encounters a campaign or organization devoted to ending object sexual penetration or criminal deviate conduct. Such terms are neither as slogan worthy nor as clearly traumatic as rape. This becomes clearer when one attempts to rename offenses for discursive consistency. Consider the following prospective modifications to Virginia statutes:
An effort to bring Virginia’s rape statute discursively in line with its counterparts might face considerable resistance. It may seem trivializing to classify rape as “forcible sexual intercourse,” yet this is deemed sufficient for oral and anal sexual assaults. It would undoubtedly be controversial to reclassify rape as “penile-vaginal penetration” without reference to force or nonconsent, and yet that is precisely what comes through in Virginia Code § 18.2-67.2.
States might further reinforce conventional notions of sexual violence through portraying being forcefully penetrated as more serious than being forced to penetrate an assailant. This can be achieved through associating penetration with perpetration. In Georgia, “a person commits the offense of rape when he has carnal knowledge of: (1) a female forcibly and against her will (§ 16-6-1).” Carnal knowledge is restricted to penile–vaginal penetration. This statute provides gender restrictions along all dimensions included in this analysis: different-sex persons only, male defendants only, female complainants only. Idaho defines “rape” as “the penetration, however slight, of the oral, anal, or vaginal opening with the perpetrator’s penis accomplished with a female” (§ 18-6101), and defines “male rape” as “the penetration, however slight, of the oral or anal opening of another male, with the perpetrator’s penis” (§ 18-6108).
Statutes that do not limit perpetration to penetration might still reinforce such assumptions through the selective use of passive and active language. In Washington, D.C., First Degree Sexual Abuse occurs when an offender “engages in or causes another person to engage in or submit to a sexual act” without consent (§ 22-3002). As “sexual acts” are elsewhere explicitly linked with penetration, this indicates that victims who are forced to penetrate assailants “engage” in their own victimization whereas victims of penetration “submit” to others’ assaults. North Dakota describes “gross sexual imposition” as occurring when an offender “engages in a sexual act with another” or “causes another to engage in a sexual act.” The implication here is that being nonconsensually penetrated requires active engagement by offenders, whereas being made to penetrate requires active engagement by victims.
Spousal allowances
The legality of (un)wanted sexual contact depends in considerable part upon the relationships among adult actors. Although I excluded these from my quantitative analyses, I nonetheless noted description after description of the appropriate boundaries for relationships between prison staff and inmates, medical professionals and patients, psychologists and clients, educators and students, employers and workers, clergy and congregation members, and blood relatives. In each of these instances, legislators intensified restrictions on behavior such that otherwise sanctioned sexual encounters might qualify as criminal, or that already criminal offenses might carry steeper penalties.
At this point, all states have criminalized rape within marriage. However, 20 states maintain distinctions between sexual violence within and outside of marriage. In every instance, such distinctions constitute allowances rather than restrictions. The majority expand married persons’ legal access to their spouses’ bodies, even in the absence of consent. Others provide an avenue for reduced penalties.
In Mississippi, the crime of Sexual Battery (§ 97-3-95) encompasses nonconsensual oral-penile contact, oral-vaginal contact, penile–vaginal penetration, penile–anal penetration, penetration of the vagina or anus by any other body part, and penetration of the vagina or anus by an object. In most instances, this statute applies in cases of physical and nonphysical force (it suffices for penetration to occur “without his or her consent”), when a victim is physically helpless, and when a victim is mentally incapacitated due to involuntary intoxication. Another statute clarifies that sexual battery may only occur within marriage “if the legal spouse engaged in forcible sexual penetration without the consent of the alleged victim” (§ 97-3-99). In Maryland, individuals may be convicted of raping their spouses only “if the person in committing the crime uses force or threat of force and the act is without the consent of the spouse” (§ 3-318) or if the spouses in question are separated or living apart. In all other instances, physical helplessness and intoxication constitute legal barriers to consent. In these and several other states, marriage provides allowances for assailants whose behavior might otherwise constitute felony sexual violence.
Virginia provides an apt example of differential penalties. Rape, forcible sodomy, and object sexual penetration are typically punishable by 5 years to life in state prison. However, if a case is tried without a jury, the defendant and complainant are married, the defendant has not previously had charges dismissed via this option, and the complainant and Commonwealth attorney are amenable, the court may “place the defendant on probation pending completion of counseling or therapy” (§ 18.2-61, § 18.2-67.1, § 18.2-67.2; Commonwealth v. Gary Guy, 1987). Charges will be dismissed on completion, provided that “the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness” (§ 18.2-61, § 18.2-67.1, § 18.2-67.2; Commonwealth v. Gary Guy, 1987). This singular option reveals numerous assumptions about spousal and nonspousal relationships. Therapy is presented here as a potential cure for married rapists—or, more specifically, for married rapists who target their spouses—but not for those who rape dating partners, acquaintances, or strangers. The Commonwealth presumes that incarceration and any resulting disruption in family life are potentially more problematic than permitting a married rapist to remain at home; none such courtesy is extended to persons who rape their unmarried cohabiting partners. Furthermore, whereas the incarceration of any rapist may disrupt that person’s family to the potential detriment of partners, children, other relatives, roommates, or neighbors, such disruption only merits judicial intervention in the case of spousal rape.
The marital distinction in Virginia reveals additional assumptions regarding victim safety, as well as judges’ capacity to assess “the best interest” of victims and other family members. Sexual violence within marriage may indicate an ongoing pattern of abuse. The presence of a judge and district attorney, however compassionate, may be inadequate to the tasks of ensuring victims’ safety or preventing abusers from exerting pressure. Ongoing abuse victims may fear retaliation should they decline to pursue the therapy option. It seems uncertain, at best, that any judge may fully assess what is best for a victim and family within the confines of a few courtroom encounters.
Victim accountability
Eliminating resistance requirements was among the central aims of rape law reform. In a sense, this aim has long since been reached. Not only have all states removed explicit requirements for (evidence of) victim resistance, but quite a few have incorporated language rejecting resistance requirements directly into legislation. Yet, sex offense statutes continue to place burdens on victims. Implicit expectations of resistance, coupled with limited recognition of voluntary intoxication as a barrier to consent, produce an ethic of victim accountability.
The centrality of physical force implies that potential victims should be capable of warding off assailants who refrain from doing or credibly threatening physical violence (bearing in mind that unwanted sexual contact does not, in and of itself, constitute physical violence in legal contexts). Many states associate force with measures to subdue a protesting victim. Nebraska specifies “the use of physical force which overcomes the victim’s resistance” or a threat of physical violence “that places the victim in fear of death or in fear of serious personal injury . . . where the victim reasonably believes that the actor has the present or future ability to execute the threat” (§ 28-318). In West Virginia, forcible compulsion constitutes a threat which places a potential victim “in fear of immediate death or bodily injury” or kidnapping, or otherwise comprises “physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances” (§ 61-8B-1).
These statutes appeal to the notion of an abstract actor whose “reasonable” behavior may be accurately predicted by jurors. They further guide predictions through an emphasis on physical force. To qualify as earnest and reasonable, resistance must be sufficient to escape any assailants who are unwilling or unable to engage in forcible compulsion. Individuals who offer only verbal resistance, or physical resistance that falls short of criminal justice professionals’ understandings of “earnestness,” or who experience tonic immobility in response to sexual threats and are thus rendered incapable of fighting or fleeing (Fusé, Forsyth, Marx, Gallup, & Weaver, 2007; TeBockhorst, O’Halloran, & Nyline, 2015) are less likely to qualify as credible victims of felony sexual violence.
The second aspect of victim accountability concerns notions of mental incapacitation. Consider the following excerpt from Delaware’s Definitions Generally Applicable to Sexual Offenses: Without consent means, . . . (5) The defendant had substantially impaired the victim’s power to appraise or control the victim’s own conduct by administering or employing without the other person’s knowledge or against the other person’s will, drugs, intoxicants, or other means for the purpose of preventing resistance. (11, § 761)
Kentucky takes a similar approach, limiting mental incapacitation to cases in which a person is rendered temporarily incapable of appraising or controlling his conduct as a result of the influence of an intoxicating substance administered to him without his consent or as a result of any other act committed upon him without his consent. (Definitions, § 510.010)
These and numerous other states restrict mental incapacitation to intoxication caused by the assailant or a third party. Victims who willingly consume to the point of intoxication, and thereby render themselves incapable of consenting to sexual acts or engaging in “earnest resistance,” may be denied legal recognition. Assailants may avoid prosecution if they restrict themselves to already-intoxicated targets.
In contrast, several states have embraced a nuanced approach to intoxication that incorporates defendants’ knowledge and behavior. In South Carolina, for example, “‘[m]entally incapacitated’ means that a person is rendered temporarily incapable of appraising or controlling his or her conduct whether this condition is produced by illness, defect, the influence of a substance or from some other cause” (§ 16-3-651). Charges will vary based on whether an offender “causes the victim, without the victim’s consent, to become mentally incapacitated” (§ 16-3-352) or “knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless” (§ 16-3-354). An offender who knowingly exploits another person’s voluntary intoxication will face charges that carry lighter penalties than someone who administers an intoxicant without another person’s consent as a means of subduing them. This approach recognizes any intoxication as a barrier to consent. Moreover, rather than imposing implicit resistance and/or sobriety demands on victims, this approach emphasizes offender accountability.
Finally, it should be noted that while numerous states have enacted sex offense statutes that do not require force or coercion, these are frequently coupled with requirements that victims be incapable of consent due to physical helplessness or intoxication. For example, Idaho’s Rape statute (§ 18-6101) requires that offenders commit or threaten physical force, engage in nonphysical coercion such as threatening to expose a secret, or target a victim who is “unconscious of the nature of the act,” and is therefore “incapable of resisting.” This perpetuates notions of victim accountability, in that offenders are only held accountable for violating the consent of persons who are presumed incapable of resistance.
Discussion
Literature on rape myth acceptance often emphasizes individual strategies for distinguishing rape from seduction (V. N. Anderson, Simpson-Taylor, & Herrmann, 2004; Littleton & Axsom, 2003; Ryan, 2011). Consistent focus on individual factors, and corresponding inattention to social and institutional factors, makes it difficult to identify broader forces that influence intrapsychic conceptualizations of sexual seduction and rape scripts. Yet, as Edwards and colleagues (2011) pointed out, attitudes that justify sexual violence—including men’s sexual violence against women—“permeate legal, media, and religious institutions” (p. 762). If we are to take these and other institutions seriously as sources of popular values and (mis)conceptions, we must consider the extent to which they produce and (re)inscribe cultural scenarios about consensual and nonconsensual sexual encounters.
Fourteen states incorporate gender restrictions into felony sex offenses. Most of these states reserve the term “rape” for vaginal penetration, and apply such terms as “sodomy” and “criminal sexual act” to same-sex offenses and cases of oral and anal assault. Investigations of “male rape myth acceptance,” or the influence of victim/offender gender and sexuality on research participants’ perceptions of rape, often draw on similar distinctions (Chapleau et al., 2008; Davies et al., 2012). Although such discursive hierarchies might seem trivial, or perhaps utterly symbolic, legal terminology has the potential to influence juror perceptions and may thereby affect conviction and sentencing processes. As Spohn and Horney (1992) noted in their review of rape law reform, Changing the name of the crime from rape to sexual assault, criminal sexual conduct, or sexual battery also may have had unintended consequences. Reformers reasoned that the change would emphasize that rape is an assault and a crime of violence. Criminal justice officials in the three jurisdictions that changed the name of the crime disagreed. They pointed out that the term “rape” has a strong connotation and “conjures up a much more inflammatory image in the mind of the jury.” A judge in Houston stated that changing the name of the offense from rape to sexual assault “sugarcoated” the offense. A prosecutor in Chicago charged that the new terminology was confusing to jurors, “who often wondered why we didn’t just charge the guy with rape.” (p. 161)
In Houston and Chicago, such “sugarcoating” affects all cases of felony sexual violence due to gender inclusive approaches to legislation. In states with gender restrictions, “sugarcoating” and associated risks of juror confusion apply exclusively to less traditional cases, such as those involving same-sex actors. In pursuing such cases, prosecutors are not merely obliged to defend the legitimacy of less normative variations of sexual violence but must also convince jurors that “sodomy” or “object sexual penetration” or “criminal deviate conduct” is morally and criminally equivalent to “rape.”
Twenty states retain marital distinctions in their felony sex offenses. These often expand married persons’ access to their spouses’ bodies, even in the absence of consent. In other circumstances, they mitigate spousal offenders’ accountability. Numerous states and individual statutes allow for the possibility that married individuals might assault willfully intoxicated spouses, coercively drug their spouses for the purpose of securing sexual submission, or sexually touch their sleeping or unconscious spouses without fear of prosecution. These states (re)inscribe cultural scenarios whereby such behaviors might constitute seduction, or perhaps noncriminal sexual aggression, provided that the actors are spouses. These same states (re)inscribe cultural scenarios whereby such behaviors constitute violence, provided that the actors are not married to each other. Perhaps popular acceptance of the rape myth that “husbands cannot rape their wives” informs and is informed by this approach (Edwards et al., 2011). Marital distinctions may further operate in conjunction with popular and institutional associations of aggression with masculinity and vulnerability with femininity to maintain the rape myth that “wives cannot rape their husbands.” Given recent expansions in marriage policy, these distinctions have also become increasingly relevant for queer relationships. State legislatures do not merely have the capacity to determine whether and under what circumstances husbands may rape their wives but also whether husbands can rape husbands and wives can rape wives.
Only 29 states incorporate nonphysical force and/or sexual violence in the absence of force into felony sex offense statutes. Elsewhere, individuals whose sexual aggression persists after someone says “no” but whose pursuit never amounts to physical force—or, more specifically, such force as would be required to “overcome” a victim engaging in “earnest resistance”—perpetrate misdemeanor or entirely noncriminal acts of sexual violence. Such statutes demand that nonconsenting persons do more than say “no.” To be recognized as victims, they must engage in resistance that requires overcoming. Should they hope to file charges, they must prevent their bodies from going into tonic immobility in response to the threat of rape or perhaps hope that perpetrators elect to brandish weapons or make threats or otherwise utilize physical force even in the absence of evident physical protest. In addition, only 17 states recognize voluntary intoxication as a barrier to consent. Elsewhere, individuals who target already-intoxicated people, or who provide alcohol or other substances to willing parties with the ultimate intent of raping them, perpetrate misdemeanor or entirely noncriminal acts of sexual violence. Like states and statutes that emphasize physical force but decline to consider nonphysical force, this approach holds actual and potential victims accountable for others’ aggressive actions. To merit legal protection, victims must not contribute to their own incapacitation.
As an alternative (or perhaps a supplement) to improving definitions of force and resistance, reformers might embrace a recent trend toward eliminating force as a mandatory component of criminal sexual violence (e.g., Colorado § 18-3-404, Unlawful Sexual Contact, addresses incidents in which an offender “knows that the victim does not consent”). Moving toward a model that prioritizes sexual autonomy and bodily integrity (M. J. Anderson, 2016; Schulhofer, 1998, 2005) might serve to address many of the concerns regarding force, resistance, and consent addressed in this analysis.
As with marital distinctions, cultural scenarios embedded in criminal statutes may contradict the messages in feminist prevention programming and scholarly literature. Community and campus-based prevention educators rightly insist that “no means no” and “yes means yes,” and encourage students to consider expressed consent a prerequisite to sexual engagement (Morrison, Hardison, Matthew, & O’Neil, 2004). Many curricula feature content regarding alcohol use whereby individuals are trained to consider intoxicated persons as off-limits for sexual contact. Investigations of attitudes toward sexual violence frequently address consumption by victims and perpetrators. Such studies often further suggest that research participants are misguided if they attribute blame to rape victims who willfully consumed alcohol (Qi, Starfelt, & White, 2016; Ryan, 2011; Untied, Orchowski, Mastroleo, & Gidycz, 2012). Yet, state criminal statutes may suggest otherwise.
Like many investigations of rape law reform, this study revealed a complex range of successes and persistent challenges. All states have legally established that people of any gender may qualify as perpetrators or victims of felony sexual violence. In this sense, they allow for the possibility of cross-identification in rape scripts such that women may take on the (masculine) role of aggressor and that men may take on the (feminized) role of victim. All states have eliminated marital exemptions and (explicit) resistance requirements. Yet, contemporary statutes fall short of numerous ideological and practical aims of rape law reformers. The persistence of hierarchical gender restrictions, marital distinctions, and expectations of victim accountability may restrict the capacity of feminist organizing to affect criminal justice processes, as well as broader institutional and popular perceptions of rape. More positively, findings also indicate that model legislation already exists. Legislators who wish to eliminate marital distinctions may do so. Those who seek to challenge an ethic of victim accountability may turn to statutes that acknowledge voluntary intoxication (e.g., South Carolina, as described above) and that incorporate nonphysical force and/or emphasize nonconsent. Minnesota offers a model definition of consent for reformers, encompassing words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current relationship between the actor and the complainant or that the complainant failed to resist a particular act. (§ 609.341)
This approach recognizes consent as “freely given” and restricted to particular sexual acts with particular individuals at particular times. Those who wish to challenge hierarchical gender restrictions may look to more inclusive legislation from other states. Michigan’s Criminal Sexual Conduct in the First and Third Degrees provide examples. These offenses refer to nonconsensual sexual penetration (§ 750-520B, § 750-520D), elsewhere defined as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body” (§ 750-520A). This ensures that assaults involving different-sex and same-sex actors, and also that incidents of being forcefully penetrated and being forced to penetrate an assailant may be awarded equal gravity.
Limitations and Future Research
This study had limitations that might be addressed in future research. Perhaps the most significant is that a content analysis of criminal statutes reveals little about their enforcement and interpretation, including the influence of common law requirements and court-made reforms on these processes. Subsequent studies might also explore the production of and engagement with cultural scenarios regarding rape and seduction in court-made reforms, as these are often granted greater weight than statutory reforms in legal proceedings. Furthermore, all analyses were conducted by a single reviewer (the author). Although I attempted to read all statutes closely and thoroughly, it is nonetheless possible that other analysts’ assessments would have differed to an extent. If possible, further statutory analyses should be conducted with teams of two or more researchers to facilitate interrater reliability calculations.
Although sexual script theory provided a productive avenue through which to assess the cultural scenarios within felony sex offenses, it could not reveal the mechanisms whereby such scenarios influence criminal justice proceedings, popular perceptions, and institutions beyond the sphere of criminal justice. Subsequent empirical studies might build on this analysis through investigating police and prosecutor enforcement, juror interpretation, and other institutional actors’ engagement with criminal statutes in regard to the themes identified here (including criminal justice professionals and former/prospective jurors’ understandings of consent, the relevance of marital status and other relationships, and the relevance of victims’ and offenders’ genders). In addition, owing to its emphasis on actors presumed legally capable of consent, this study revealed nothing regarding assumptions about permanent disability and related cultural scenarios in sex offense statutes. Subsequent studies should explore this issue. Finally, given recent interest in campus sexual assault, it would be productive to investigate the influence of criminal statutes on campus adjudication proceedings, as well as the engagement with sexual scripts that occurs within campus-based sexual assault prevention and response more broadly. Colleges and universities are obliged to address sexual violence as a civil rights issue requiring prompt action (specifically in regard to sexist violence via legislation such as Title IX, given that schools are not authorized to prosecute crimes), and many have embraced an “affirmative consent” standard that promotes greater offender accountability than many of the statutes reviewed for this study. However, conservative notions of force and resistance, including those embedded in criminal statutes, may still affect campus-based proceedings (M. J. Anderson, 2016).
In spite of its limitations, I believe that drawing attention to the sexual scripts produced and (re)inscribed by criminal statutes may contribute to the ongoing work of rape law reform, as well as broader cultural efforts to raise awareness and reduce incidents of sexual violence. Feminist scholars and activists have long challenged discourses that distinguished between “legitimate” and “illegitimate” victims. Voters’ recent rejection of Todd Akin gives testament to the continued success of these efforts, at least when the victims under consideration are women who have been assaulted by men. Such principles might also be put to use in challenging (hetero)sexist discursive hierarchies, spousal allowances, and implicit standards of victim accountability in legislation. It is possible and productive to recognize sexual violence as a major component of violence against women without presuming that all sexual violence is perpetrated by men against women. It is in the interests of those who oppose violence against women to pursue greater legal and social legitimacy for all survivors.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.