Erasing What’s Set in Stone: A History of Rape Between 1970 – 2014

by

Emily Hill

2

Introduction:

Rape: a word many people avoid uttering, an offense few willingly choose to talk about, an experience many treat with silence. Conversations about rape in the United States often involve multiple related topics. Indeed, there is no such thing as “just” rape. It is either non- consensual sex, date rape, stranger rape, drunk rape – something must always be attached to the term. Although the offense shouldn’t need validation from the attached qualifications, such is not the case in how rape is discussed.

As a disclaimer, it is important to note this research is not being used to portray rape as an insignificant topic. The word “rape” is used many times to describe the events of trials, activism, federal, and state legislation. The repetition of this word does not diminish its meaning and importance, but stands to point out the injustices victims have faced. While the focus remains on male on female rape, this is not the only situation to exist. Men are raped, different racial groups are disproportionally affected by rape, and varying sexual orientations and gender identities face high rates of rape than others. There is no intended discredit to the victims concerning these groups, as they are all relevant and deserve to be addressed appropriately.

However, for this content, male on female rape is focused on to discuss relevant laws and court cases that have helped shape the definition and legal management of rape.

The treatment of sexual assault and rape in the United States fluctuates within the last 50 years. Typically, the general public is unaware of the struggles victims face regarding rape; they don’t know the laws, the trials, and the stigma victims must face to speak about their injustice.

To fully understand the legal and social issues of rape in the United States, it is important to divide the offense into separate sections: the definition of rape, marital rape, statutory marital rape, media prevalence, rape activism, and campus rape. Identifying the inequities in rape 3 definitions and treatments will help victims gain equal protection under the law, and it will create a precedent valuing and respecting the rights of rape survivors.

Definition of Rape:

For rape to be discussed properly as a valid issue concerning the country, it is important to understand the development of the definition as well as how each state handle sexual assault and rape within its own jurisdiction. Rape is a subsection of sexual assault, but is not the only action under this umbrella term. Sexual assault covers sexual violence like rape, unwanted sexual touching, forcing a victim to perform sexual acts involving oral or anal sex, and attempted rape.1

While facets of sexual assault will be discussed, the main focus is how rape – both definition and legislation – is defined and grows throughout the past several decades. This includes court cases favoring both the victim and the perpetrator, showing the growth made and still needed from these state and federal decisions.

Rape has remained a controversial subject throughout history in both discussion and criminal prosecution. The United States developed a more tangible definition in 1955, later implemented into common law in 1962 – the Model Penal Code.2 The Model Penal Code was meant to establish standards for laws and create an equal precedent for each state. More specifically, there was a section on the act of sexual assault and how each act was defined. The two most serious sexual assault crimes found in the Model Penal Code are “Rape and Related

Offenses” and “Deviate Sexual Intercourse by Force or Imposition”.3 Rape, defined in the first section, is between a man and a woman – specifically a woman who is not his wife. The man has

1 “Sexual Assault.” RAINN. Accessed March 28, 2020. https://www.rainn.org/articles/sexual-assault. 2 Furbish, Lawrence K., Christopher Reinhart, George Coppolo, Sandra Norman-Eady, and Kevin McCarthy. “Model Penal Code Sexual Assault Provision.” OLR Research Report. Last modified December 18, 1998. Accessed March 12, 2020. https://cga.ct.gov/PS98/rpt\olr\htm/98-R-1535.htm. 3 Furbish, “Model Penal Code Sexual Assault Provision”

4 to either threaten her, drug her, complete the act while she is unconscious, or if the victim is less than 10 years of age.4

The second section is a copy of the first, but removes any gender identification from the charges, which implies forms of homosexual rape as defined as ‘deviate sexual intercourse’.

Both categories are divided by sexual imposition; these cover the prevention of resistance by the victim and mental incapability of the victim.5 These aspects indicate a victim of ordinary resolution would not let themselves be raped, implying they are not mentally sound. When speaking of a women’s mental incapacity or disease, the law states the women must be

“incapable of appraising the nature of her conduct” or she “mistakenly supposes that [the perpetrator] is her husband”.6 The gross sexual imposition section of the Model Penal Code does not place blame on the perpetrator, but on the victim for not being able to protect themselves or think in an ordinary resolution. As of 1962, this is the foundation of all sexual assault laws in the

United States. Some states copied the exact wording and placed it into law, which guaranteed a harsh reality for victims of rape.

Since the institution of the Model Penal Code, different states have gone to different measures to update their sexual assault and rape laws – some of them strong and progressive, some of them weak and conservative. Fifty-four years after the institution of the Model Penal

Code, there were 25 states and Washington D.C. that did not have statutes firmly defining charges for rape, only for sexual assault or worded in other terms: sexual imposition, sexual battery, and aggravated sexual penetration.7 For the other 25 states, statutes range between 1st degree rape, 2nd degree rape, 3rd degree rape, 4th degree rape, and rape. In 1st degree rape, at least

4 Furbish, “Model Penal Code Sexual Assault Provision” 5 Furbish, “Model Penal Code Sexual Assault Provision” 6 Furbish, “Model Penal Code Sexual Assault Provision” 7 Sexual Assault Statutes in the United States Chart. National District Attorneys Association, n.d. Accessed March 12, 2020. https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&cad=rja&uact=8&ved=2ahUK Ewi6_qW5rpPoAhWJtZ4KHTL7AmsQFjAHegQIBxAB&url=https://ndaa.org/wp-content/uploads/sexual- assault-chart.pdf&usg=AOvVaw0o0OFcvAq_oOXAycJoNxfQ. 5 two of these terms must be met for most states: forceable compulsion, incapacity of the victim, lack of consent, cause of serious physical injury, threatened retaliation, under or over a certain age. However, in South Dakota, 1st degree rape was only charged when the victim is under 13 years of age.8

There are similarities between 1st and 2nd degree rape in some states, often times the difference between them relying on the use of force. Charges are often brought on because of these terms: statutory rape within defined age limits (which demotes it from 1st degree rape), mental defectiveness, the victim is in the care of the defender, or the victim doesn’t fight back because they “believe[s] resistance wouldn’t prevent rape”.9 For 3rd degree rape, almost all mentions of it throughout 25 states are for smaller age gaps constituting statutory rape, or if the rape happened in a Department of Corrections facility by an employee.10 Only South Dakota and

Delaware had statutes on 4th degree rape; however, Delaware’s statute stated a person could be convicted for penetration without consent, penetration or intercourse with a person under 16, or intercourse between a victim under 18 and actor over 30, unless married at the time.11Other states used the same classification as Delaware, but for higher charges such as 1st and 2nd degree rape. In a majority of the statutes, regardless of if they are defined by rape or sexual assault, most verbiage insinuates a man attacked a woman, and often times rape is an unclassified crime

– it doesn’t have a listed felony attached as a minimum punishment for someone accused of rape or sexual assault.12

Michigan was a very progressive state when it came to strong reform on rape laws. In

1975, Michigan redefined rape and sexual assault into four degrees of gender-neutral categories based on criminal sexual conduct, amount of force or coercion used, degree of injury, age, and

8 Sexual Assault Statutes in the United States Chart. 9 Sexual Assault Statutes in the United States Chart. 10 Sexual Assault Statutes in the United States Chart. 11 Sexual Assault Statutes in the United States Chart. 12 Sexual Assault Statutes in the United States Chart. 6 incapacitation of the victim.13. Gender-neutral laws also allowed its reach to be extended to men, married persons who are legally separated, and sexual penetration by an object – all of which were not covered in former laws.14 The law was especially reformative for the time because it did not require force to be shown on a victim for the crime to be fallible. In 1982, the Michigan

Court of Appeals also modified rules surrounding evidence needed for the victim’s testimony to exclude “most types of evidence of the victim’s past sexual conduct”.15

In regards to weak reform on rape laws, Texas and the District of Columbia did little in comparison. Texas passed weak rape shield laws in 1975, not updating them again until 1983, when the rape charges became more defined. The four categories defined for rape and sexual abuse were removed from the “Sexual Offenses” section of the state penal code and were replaced with sexual assault and aggravated sexual assault.16 For the District of Columbia, even less was done. The definition of rape for this territory hadn’t changed since 1901, and changed one law to restrict to introduction of evidence about a victim’s prior sexual conduct. Both Texas and the District of Columbia remained to define rape as the use of force and raping a woman against her will.17

With deviations in rape definitions and charges across the country, it is important to acknowledge the role of consent in defining rape. Consent definitions in prosecution are often treated in an unjust manner; the prosecution has to prove there was a lack of consent. Because of this, it places stress on the victim and creates the ideology of the victim being at fault for the perpetrator’s actions. 19 “In legal operations, consent to sex is routinely found in situations of despairing acquiescence, frozen fright, terror, absence of realistic options, socially situated 13 Spohn, Cassia, and Julie Horney. Rape Law Reform: A Grassroots Revolution and Its Impact. New York: Plenum Press, 1992. 14 Spohn, “Rape Law Reform” pg.36 15 Spohn, “Rape Law Reform” pg.37 16 Spohn, “Rape Law Reform” pg.37 17 Spohn, “Rape Law Reform” pg.40 18 Spohn, “Rape Law Reform” pg.41 19 MacKinnon, Catharine A. Butterfly Politics. Cumberland: Harvard University Press, 2017. 7 vulnerability, and even death”.20 In this light, the legal classification of consent denies a woman from feeling anything related to the trauma because if they do, legally they implied consent to the situation. With the force often used in these rape charges, it also creates a “misogynistic assumption that women want to be forced into sex”.21 This assumption continues to not only diminish the act of the accused, but denies the reality of the offense. Consent does not apply to assumptions or the clothing the victim is wearing, it is valuing the standard each person has to consent to equal sex. 22. As rape continues to be a largely underreported crime and legal consequences remain unequal across the country, consent must be redefined with the changes in rape legislation. To work towards equal rights for rape victims, it is imperative to create an equal definition of consent: one denying the requirement for the victim to defend their behavior against the perpetrator’s action, and to eliminate the feminization greatly affecting the language and proceedings of rape trials.

As the country continued to make reforms to rape laws in each state – weak or strong – there were certain court cases that lead to acts related to rape being marked as unconstitutional.

Those issues were the death penalty and sodomy laws. The case that brought the death penalty for rapists into question was Coker v. Georgia in 1977. A convicted felon escaped prison, committed an armed robbery, and raped an adult woman. It was a more complicated case because he was a convicted felon who had committed another felony and raped someone. The four judges who presided over the case decided the death penalty was too severe for the crime committed, which would make it unconstitutional by the Eighth Amendment in the United States

Constitution.23 Justice Powell concluded the death penalty would be a disproportionate punishment as “the victim did not sustain serious or lasting injury”.24 The main point made in

20 Mackinnon, Butterfly Politics, pg.286 21 Mackinnon, Butterfly Politics, pg.286 22 Mackinnon, Butterfly Politics, pg.289 23“Coker v. Georgia.” Last modified 1977. Accessed March 12, 2020. https://www.law.cornell.edu/supremecourt/text/433/584. 24 Coker v. Georgia, 1977 8 this case about the death penalty and how it applied to rape was this: while the offense against the adult woman deserves serious punishment, it does not deserve a severe enough punishment as to someone who unjustifiably takes a life.25

Sodomy laws were also deemed unconstitutional by the Supreme Court in 2003. This happened when the police came into the residence of two men engaging in homosexual acts, which was Texas in illegal, and were subsequently arrested. The couple challenged the statute as a violation of their 14th Amendment rights, which were rejected by the state.26 The court case that allowed these laws to be constitutional was Bowers v. Hardwick in 1986, which stated

“[T]he Constitution does not confer a fundamental right upon homosexuals to engage in sodomy”.27 The case reached the Supreme Court, and a decision was made – Bowers v.

Hardwick should be overturned because “[W]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”28 While this ruling helped homosexual couples become unburdened by discriminatory state legislative, it also revealed how many states had discriminatory language in their laws, which is still present today in states like

Kansas and several others still using the terminology “deviate sexual intercourse”.29

One of the most influential acts surrounding rape in the United States was the Violence

Against Women Act (VAWA) in 1994. This law was enacted in both the federal and state governments to decrease domestic violence and sexual assault, although it wasn’t meant to cover sexual assault initially. Lobbying done by the National Coalition Against Sexual Assault, the

National Organization for Women, and other women’s groups fought to add rape services and

25 Coker v. Georgia, 1977 26 “LAWRENCE V. TEXAS.” Legal Information Institute. Cornell Law School, June 26, 2003. Last modified June 26, 2003. Accessed March 12, 2020. https://www.law.cornell.edu/supct/html/02-102.ZO.html. 27 LAWRENCE V. TEXAS, 2003 28 LAWRENCE V. TEXAS, 2003 29 “Bowers v. Hardwick.” Legal Information Institute. Legal Information Institute, 1986. Last modified 1986. Accessed March 26, 2020. https://www.law.cornell.edu/supremecourt/text/478/186. 9 prevention to VAWA.30 This law was meant to support women who were abused in their lives through grant money, national hotlines for domestic violence, and increased penalties for repeat offenders. The Office of Violence Against Women was created within the Department of Justice by President Bill Clinton, which supported women through a clause in VAWA that granted them the right to file civil rights suits against their attackers; this was overturned by the Supreme Court in 2000 in United States v. Morrison.31

Throughout the years, VAWA gained many new provisions, two very influential ones are

Aimee’s Law and Megan’s Law. Megan’s Law was added in VAWA in 1996, following the rape and murder of 7 year old Meghan Kanka by a sex offender in 1994. Her parents didn’t know that within their neighborhood, three sex offenders lived in the same house together.32 The law was originally enacted in New Jersey in 1994, President Bill Clinton signed Megan’s Law into

VAWA, calling for mandatory community notification and a national registry of sex offenders.

By 1998, all 50 states had a version of this law.33 In 2000, Aimee’s Law was also signed into

VAWA. She was a college senior who was kidnapped, raped, and murdered by a convicted murderer who was released early. This law “withholds federal funds from states that hand down light sentences for criminals who then commit gender-related violence in other states”.34

Aimee’s Law was a large step forward in creating an equal level of conviction among all the states, but it remains far from identical in all states and the federal government.

Looking back in state and federal history, some states haven’t changed their definitions of rape since the early 20th century or prior, and a majority of the law surrounding sexual assault and rape marital rape and insisted on the use of force to justify the act. In 2012, the FBI changed its definition of rape, only after the change being advocated by the Department of Violence

30 Smith, Merril D. Encyclopedia of Rape. Westport, CT: Greenwood Press, 2004. 31 Smith, “Encyclopedia of Rape” pg.264 32 Smith, “Encyclopedia of Rape” pg.126 33 Smith, “Encyclopedia of Rape” pg.126 34 Smith, “Encyclopedia of Rape” pg.264 10 against Women and other activist movements. The change in definition, as stated by the Attorney

General, was meant to help more accurately report rape on a nationwide basis. The definition the federal government followed had not been changed since 1927, but now has a much more fluid and open meaning that doesn’t deny the act by lack of force: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim”.35 This definition only encompasses how the federal government views rape, not how the states define, charge, or protect victims. To have different definitions and charges or rape across the country, it creates vast inconsistencies that can lead to biased trials and weaker convictions.

Rape cannot be classified as a black and white issue. There are many facets as to what the issue is, how it occurs, and how a trial can proceed depending on the state the offense occurred in. While there may be a definitive definition from the federal government on how rape is defined, it is not the same for all states and territories in the country. The degrees in which rape can be charged – or in some states, just sexual assault – can be limiting to victims who want to report the crime against them. Some states are more progressive than others, while other states still require force to be a prerequisite for a sexual assault to be classified as rape. The lack of change and enormous amounts of flexibility between states makes defining and recording cases of rape difficult, and it continues to limit the amount of reports victims could make to law enforcement.

Marital Rape:

Martial rape wasn’t often included in rape laws because they didn’t benefit the people who made them; those being the father and husband.36 The Anglo-Saxon common law rule traces

35 Sullivan, Katharine T., and Laura L. Rogers. “An Updated Definition of Rape.” The United States Department of Justice. Last modified April 7, 2017. Accessed March 12, 2020. https://www.justice.gov/archives/opa/blog/updated-definition-rape. 36 Glasglow, Jan M. “The Marital Rape Exemption: Legal Sanction of Spouse Abuse.” Journal of Family Law 18, no. 3 (1979): 565–586. 11 back to the seventeenth century, the principle stating “[But] the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wide hath given up herself in this kind unto her husband which she cannot retract”.37 Women were also seen as virtual chattel, so the rape laws developed were not for protecting women, but for “protecting men’s interests in their property”.38 Being the property of the husband under these laws not only diminished a women’s authority over her own body, but created forced sex as “a method of ‘making use of [the husband’s] own property’”.39 The terms of contract law and implied consent have been the precedent for many issues surrounding lack of consent in marital rape. The contract law is viewed as a voluntary contract which one element is the inability to deny consent to sexual intercourse.40 Other concept denying a woman any right to consent in her marriage was the significance of the “unity of marriage” or “unity of person”.41

Within this doctrine, “the wife’s legal identity was merged with her husband’s at marriage”.42

Since this created a unity of two people into one, marital rape became a legal impossibility because “the husband could not rape himself”.43 These ideologies of unretractable consent and the “unity of marriage” continued to interfere with unbiased trials and removed any legal opportunity for a woman to accuse her husband of rape.

As discussed about, these laws remained predominant even in the Model Penal Code adopted into the American Legal system in 1962, stating the definition of rape excludes women raped by their husbands.44 The thought of changing these laws and definitions caused many people to fear what women would do in this situation. Many thought women would use this new power to be vindictive and manipulative towards their spouses, giving them more ground to ask

37 Glasglow, “The Marital Rape Exemption” pg.566 38 Glasglow, “The Marital Rape Exemption” pg.569 39 Glasglow, “The Marital Rape Exemption” pg.569 40 Glasglow, “The Marital Rape Exemption” pg.567 41 Glasglow, “The Marital Rape Exemption” pg.569 42 Glasglow, “The Marital Rape Exemption” pg.569 43 Glasglow, “The Marital Rape Exemption” pg.570 44 Furbish, “Model Penal Code Sexual Assault Provision” 12 for better divorce settlements.45 Another argument used was that abolishing the marital rape exemption would interrupt the sanctity of marriage and diminish the chances of reconciliation.46

The idea of reconciliation and hurting the marriage shows the deep seeded history in the exemption, especially in a view-point that remains religious in context. Religious foundations of issues like marital rape make changing the statutes much more difficult, and even more challenging for juries at trials to make an informed and unbiased decision.

As stated before, the implications of religion in these cases, and even in public writings about these trials, instills the idea that while rape against a woman is a terrible crime, rape within the sanctity of marriage is not. Oregon was more progressive in the 1970s, working to make changes surrounding rape and sexual assault in the state. In 1977, the state passed a law that removed martial privilege from its rape laws, allowing married women the ability to file rape charges against their spouses. In 1978, Greta Rideout accused her husband, John Rideout, of battery and rape, which made local and national news. In local news, Greta Rideout’s case was not only downplayed, but the coverage labeled her as well as other rape victims as “never fully innocent”.47 Different local newspapers had different stances, but The Silverton Appeal-Tribune editor expressed a religious viewpoint: “’What goes on in a bedroom between a husband and wife is only between them and their Creator.’.”48. While details about Greta were often sparse in newspapers, information about the jury was largely reported, and done so frequently. The jury had 8 women and 4 men, which worried and interested the public at the same time; if Greta were to win her case, it becomes a monumental case condemning marital rape; however, since she lost the case, it puts a negative spin on the side of rape victims. Because the press so adamantly spoke of the gender differences in the jury, it implies if Greta was truthful, her husband wouldn’t have

45 Bazhaw, Melissa Anne. "For Better or for Worse? Media Coverage of Marital Rape in the 1978 Rideout Trial." Thesis, Georgia State University, 2008. Accessed March 12, 2020. https://scholarworks.gsu.edu/communication_theses/35 46 Bazhaw, “For Better or for Worse?” pg.6 47 Bazhaw, “For Better or for Worse?” pg.26 48 Bazhaw, “For Better or for Worse?” pg.28 13 been aquitted.49 The media wanted to imply Greta was using false charges to manipulate her husband because the women of the jury didn’t side with her case.

With the idea of truthfulness in mind, Oregon v. Rideout questions why rape victims need a reason for them to be raped. Often, people won’t search for a reason why a person was robbed, but it becomes imperative to know why a woman was raped.50 As the case continued, the defense used Greta’s sexual history as a way to undermine her honesty, arguing her having abortions, homosexual fantasies, and other rape allegations criticized her honesty; those assertions were admitted to the court without question or clarification.51 In national news, a lot of the information to support Greta was also left out. Her sexual history was reported, but not the fact the charges placed against John Rideout had been changed by the Defense Attorney – he was no longer being charged for battery and rape, but rape alone.52 This omission of battery undermined half of the trial because there was definitive evidence of the physical trauma Greta had gone through: she had be beat, grabbed, struck, and threatened.53 John Rideout, after two and a half hours of discussion, was acquitted of his charges, and this ending continued to paint Greta not as a victim of rape, but as a vindictive woman who was only seeking revenge and fame.54

While previous cases did not favor victims of rape due to marital exemption, cases started to appear that influenced state legislature. People v. Liberta is a case from 1984 addressing the marital exemption of rape and what defined marriage in the context of rape. Mario Liberta was accused of rape and sodomy in the first degree of his wife Denise Liberta, which normally would not reach prosecuted because the state of New York’s Penal Law included martial exemptions.

However, Mario had been placed under a Family Court order, forcing him to live away from his wife and his child, which deemed him as an unmarried man. This allowed the prosecution to be 49 Bazhaw, “For Better or for Worse?” pg.33 50 Bazhaw, “For Better or for Worse?” pg.35 51 Bazhaw, “For Better or for Worse?” pg.39 52 Bazhaw, “For Better or for Worse?” pg.55 53 Bazhaw, “For Better or for Worse?” pg.60 54 Bazhaw, “For Better or for Worse?” pg.62 14 validated by New York law.55 When the indictment first arose in state court, the defendant dismissed the charges because of the marital exemption and that the Family Court order did not invalidate their marriage, it only meant Mario had to stay away from Denise,.56 On appeal by the

People, the case was taken to Appellate Court where the indictment was reinstated. The People stated the Family Court order was within the means of the state Penal Code, and Mario and

Denise were “not married” within legal statutes during the time of the incident.57 Mario not only disagreed with the Appellate ruling, but said both statutes for rape and sodomy violated the 14th

Amendment Equal Protection clause because the statutes mainly burdens men, and not women.58

The constitutional arguments were rejected, and Mario Liberta was charged for 1st degree rape and sodomy.

While this was a landmark case in criminalizing marital exemption of raping a spouse, there are still 40 states that retain a form of marital exemption for rape in state law.59 There are 9 states that have complete exemption of marital rape as long is the marriage is valid; 26 states allow marital exemption with exceptions, a common rule being if the couple is living apart in pursuit of a separation agreement; 3 other states and the District of Columbia still have exemptions as a common-law doctrine; the remaining 4 states have marital exemption for some, but not all degrees of forcible rape.60 Marital exemptions are still in place because states still believe in marital reconciliation, the Colorado Supreme Court stating the marital exemption

“may remove a substantial obstacle to the resumption of normal marital relations”.61 States allowing marital exemptions and backing them with religious ideologies of marriage provide

55 Suk, Jeannie. “People v. Liberta.” H20. Harvard University, March 10, 2015. Last modified March 10, 2015. Accessed March 12, 2020. https://h2o.law.harvard.edu/collages/33260. 56 Suk, “People v. Liberta” 57 Suk, “People v. Liberta” 58 Suk, “People v. Liberta” 59 Suk, “People v. Liberta” 60 Suk, “People v. Liberta” 61 Suk, “People v. Liberta” 15 stigma and difficulties for pressing charges, and remain a strong reason why rape is an extremely under-reported crime.62

This case also brought forward the argument against gender-neutral laws for forcible rape on the basis that women cannot rape men, or that a man cannot engage in intercourse unless sexually aroused, which would mean his is consenting.63 While rape laws disproportionally affect women when it comes to male against female sexual violence, it doesn’t negate the fact that violence of this nature can still happen to men. Rape can happen to any person, regardless of physical sexual arousal. To imply a man cannot be sexually assaulted by a woman undermines the movement towards equal treatment for victims under the law. They may be a small portion of the reports, but male sexual assault is still relevant in modern society, and it’s crucial to represent them when fighting for better legislation.

As a subsection of rape cases, marital rape is often overlooked. It is believed to be an act of the past – something that hasn’t been legal, or assumed to be, for a long time. These cases are ignored, and when victims do raise their voice, those in the 40 states still allowing marital exemption are more likely to have a fate similar to Greta Rideout than Denise Liberta. These exemptions continue to perpetuate rape culture within United States society; wives are the property of their husbands, marriage means unretractable consent to sex, and that rape inside of marriage is not rape at all. Martial exemptions continue to limit victims in need of help. This is not a law or concept of the past; this is a relevant law that still affects people in a majority of the states and continue to contribute to national rate of sexual assault.

Statutory Marital Rape:

62 Suk, “People v. Liberta” 63 Suk, “People v. Liberta” 16

While most marital exemption cases involve couples of legal ages, it doesn’t deny that many states in the country have discrepancies between the age of consent and the marriageable age. In the United States, 20 states allow parental consent for marriage beneath the state’s age of consent.64 So, for example, it would be entirely legal from a parent to marry off their child at 16, the legal age, and have any form of rape within that marriage be legal under marital exemption, even though the child would still be below the age of consent. Fifteen of these states also have an additional exemption on parental consent for marriage; if the younger party is pregnant or have given birth, they may obtain a marriage license earlier than the legal age.65 Only 3 of those states already allowed parental consent before the age of consent. The remaining 12 states that include this exemption would therefore allow the parental consent for marriage to be lower than the age of consent, making it legal in 32 states.66

Current state laws for statutory rape are just as variable as marriage laws. There are only

12 states that have a single age of consent, meaning any individual below that age cannot legally consent to sexual intercourse; the remaining 39 states factor in age differentials, minimum age of the victim, and minimum age of the defendant to define the legality of the action.67 Minimum age requirement states that if the age of consent is 17 in Texas, individuals who are at least 14 can legally engage in sexual activities as long as the defendant is no more than 3 years older than the victim.68 Age differentials are based on the difference in age between both parties, which means in Minnesota, it is illegal to engage in sexual intercourse with someone younger than 16 if the defendant is 3 years older than a victim younger than 13 or 2 years older than a victim under

16.69 With a minimum age of defendant in order to prosecute, this means in Florida it is illegal to 64“Marriage Laws.” Legal Information Institute. Cornell Law School, n.d. Accessed March 12, 2020. https://www.law.cornell.edu/wex/table_marriage. 65 Legal Information Institute, “Marriage Laws” 66 Legal Information Institute, “Marriage Laws” 67 Glosser, Asaph, Karen Gardiner, and Mike Fishman. “Statutory Rape: A Guide to State Laws and Reporting Requirements.” ASPE. Last modified September 8, 2016. Accessed March 13, 2020. https://aspe.hhs.gov/report/statutory-rape-guide-state-laws-and-reporting-requirements. 68 Glosser, “Statutory Rape” pg.6 69 Glosser, “Statutory Rape” pg.6 17 have intercourse with someone under the age of 18 only if the defendant is at least 24 years old and the defendant is 16 or older.70 While all of this information is quite jarring in terms of the age of consent and how statutory rape is handled, one point is very clear when discussing state age requirements: “some states have marital exemptions. [The laws] assumes the two parties are not married to each other”.71 This shows that, legally, marriage overrides cases of rape happening to individuals under the age of consent. Since they would be married off by their parents, this limits the ability of these victims to not only have a voice on who they chose to marry, but on how the victim’s sexual assault is treated.

Statutory rape, while being a terrible crime with no single definition across the country, is faced with a law name romanticizing the actions of the defendant. Often times, age differentials in states regarding statutory rape are called Romeo and Juliet laws. Romeo and Juliet laws were made to address the issue surrounding consensual sex between teenagers and young adults, allowing for reduced charges for the defendant because they were within a certain age limit defined by the state.72 While this is meant for individuals who are consenting individuals, it undermines the issue of people under the age of consent legally giving consent to sexual intercourse. It questions why age matters if the law states a specific age gap can diminish any charges placed against them. The romanticism of this law is not beneficial for any party; it implies a love between two individuals based on fiction. It blurs the lines of statutory rape by allowing a specific age gap between victim and defendant, and it provides more space in which a defendant could use to manipulate the state’s marital exemption in their favor. Almost 900,000 teenagers, mainly girls, are married in the United States each year, and 29.2% of babies born to girls between the age of 15 and 16 are fathered by men over 21.73 These laws show that with 70 Glosser, “Statutory Rape” pg.6 71 Glosser, “Statutory Rape” pg.7 72“Romeo and Juliet Laws - Definition, Examples, Cases, Ages, by States.” Legal Dictionary. Last modified November 5, 2018. Accessed March 26, 2020. https://legaldictionary.net/romeo-and-juliet-laws/. 73 Jackson, Erin K. “ADDRESSING THE INCONSISTENCY BETWEEN STATUTORY RAPE LAWS AND UNDERAGE MARRIAGE: ABOLISHING EARLY MARRIAGE AND REMOVING THE SPOUSAL EXEMPTION TO STATUTORY RAPE.” UMKC Law Review 85, no. 2 (2017): 343–392. 18 parental consent, a teenager can consent to marriage before they can even consent to sex, which undermines the idea behind statutory rape laws in the first place.74

Statutory marital, while relatively unseen, it a problem deserving of attention from the general public. With almost a million teenagers getting married each year – with almost of a third of those girls becoming pregnant under the age of consent – poses a concern with how ingrained marital exemptions are in common law and how easily it can overrule the age of consent. By allowing marriage under the age of consent, it continues to perpetuate a precedent of statutory rape being allowed within the confines of marriage, and it continues to remove any authority the victim’s have over their bodies and circumstances.

Media Prevalence:

The media plays a heavy role on how issues pertaining to rape are handled. With more recent cases surrounding accused rape with celebrities like Harvey Weinstein and Bill Cosby, it displays the divisions in how the public understands and treats rape. There are people who side with the victims, believing these women were unable to come forward with their stories due to hostile work environments, an unforgiving social view of rape, or fear of retaliation. The other believes these women are only coming forward for the fame, using the publicity to improve their personal lives and try to destroy the person’s career. Both sides are covered heavily in media, only further dividing the public on what should be done. It maintains the idea that false reporting of rape is an issue in the country when it only consists of between 2%-8% of all sexual assault reports.75 The influence of the media in relation to rape has brought around vital changes in the protection of victims, but it also continues to perpetuate stereotypes surrounding victims of sexual assault and rape. These laws and court cases show the extent and limits in which rape

74 Jackson, “ADDRESSING THE INCONSISTENCY BETWEEN STATUTORY RAPE” pg.345 75 Lonsway, Kimberly, Joanne Archambault, and David Lisak. “False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault.” National Sexual Violence Resource Center. Last modified 2009. Accessed April 20, 2020. https://www.nsvrc.org/publications/articles/false- reports-moving-beyond-issue-successfully-investigate-and-prosecute-non-s. 19 shield laws and self-defense cases can improve or hinder the growth of legislation meant to help victims of rape.

The 1970s fostered a lot of change with rape law change and regulation. Rape Shield

Laws came as a much needed protection for rape victims in court. The goal of these laws was to prohibit media from using information about the rape victim and prevent the victim’s previous sexual history from being used in court to defend the rapist.76 While these laws are intended to help the victims, they have come under fire as possibly being unconstitutional under the 6th

Amendment, as the accused has certain rights in a trial.77 There are four broad categories used to describe rape shield statutes: special scrutiny, pure exceptions, scrutinized exceptions, and mixed by issue.78 Special scrutiny subjects evidence to closer scrutiny by the trail judge than what is normally used through the use of special standards; pure exceptions states prior sexual history of the complainant is inadmissible; scrutinized exceptions makes evidence fit within a statutory exception and is then closely scrutinized; mixed by issue is dependent on the case, so it can use any other the other categories if the court choses to. 79 Historically, the sexual history of the complainant was always admissible because of three main elements – fear, chastity, and religious immorality.80 While the fear of vindictive women often fueled many statutes that would benefit the defendant, the lack of rape shield laws made it easier for the defendant to put fault on the woman based on assumptions. A woman’s sexual history would be admissible in court to show her chastity, even going to the point of having “a witness testify to his opinion of the woman’s chastity”.81 It was assumed a promiscuous woman is a dishonest woman, but the same ideology was never used to describe a man. The same goes for religion being instilled in court cases; a

76 Smith, “Encyclopedia of Rape” pg.199 77 Smith, “Encyclopedia of Rape” pg.199 78 Haxton, David. “‘Rape Shield Status: Constitutional Despite Unconstitutional Exclusions of Evidence.” Wisconsin Law Review, no. 5 (1985): 1219–1272. 79 Haxton, “Rape Shield Status” pg.1223-1227 80 Tanford, J. Alexander, and Anthony J. Bocchino. “Rape Victim Shield Laws and the Sixth Amendment.” University of Pennsylvania Law Review 128, no. 3 (1980): 544. 81 Tanford, “Rape Victim Shield Laws” pg.548 20 woman with previous sexual experience outside of marriage means she is immoral, and therefore dishonest.

With the argument around rape shield laws and their constitutionality, Cox Broadcasting

Corp v. Cohn was one of the first court cases to test the law’s efficacy. In 1975, Cox

Broadcasting Corp had a suit filed against them in a Georgia court by the father of a deceased rape victim, claiming the inclusion of his daughter’s name in a report was an unlawful invasion of privacy.82 The Georgia Court upheld the misdemeanor charge to publicly identify rape victims, so the company appealed to the US Supreme Court.83 The issue being questioned in court was not only the liability of the reporter, but if the state could act on an invasion of privacy based on the publication of a deceased rape victim’s name in connection to the prosecution of the crime.84 The Supreme Court decided the news reporter was protected by the First Amendment – through the 14th Amendment – from criminal and civil liability because of three reasons: the reporter received the information from a public domain, the disclosure of the rape victim’s name was not used recklessly or in falsity, and the Court was hesitant to sanction the press for distributing information from public records.85

Because of cases like Cox Broadcasting Corp v. Cohn and Oregon v. Rideout, it puts the public and the federal legal system in predicament. On one side, the right to speak on public record about rape victims allows the public to know personally traumatizing events; on the other, the public knowing the name of the victim provided the defendant to mount claims unrelated to the current case, and this caused the trial to be instilled with assumptions rather than facts. The controversy over the constitutionality of these laws makes moving forward on rape law reform

82 Ramesh, Sandeep C. “Cox Broadcasting Corp. v. Cohn.” The First Amendment Encyclopedia. Accessed March 12, 2020. https://www.mtsu.edu/first-amendment/article/576/cox-broadcasting-corp-v-cohn. 83 Smith, “Encyclopedia of Rape” pg.52 84 Ramesh, “Cox Broadcasting Corp v. Cohn” 85 Ramesh, “Cox Broadcasting Corp v. Cohn” 21 very difficult. There is a desire to protect these victims, but the state, country, and the defendant have rights to adequate information and details pertaining to the trial.

To add to the argument of the unconstitutionality of rape shield laws, the case of People v. Jovanovic incorrectly applied rape shield laws to the trail, withholding information crucial for a fair and unbiased case. The rape shield law being used in this case stated a victim’s sexual conduct shall not be admissible in a prosecution for a sex offense unless such evidence: proves prior sexual relationship with accused, the victim had been convicted of prostitution in the past 3 years, rebuts evidence of victim’s failure to engage in sexual intercourse, rebuts evidence which proves the accused is the cause of a pregnancy, or is determined by the court after an offer of proof outside the hearing of the jury by the accused.86 In 1996, Oliver Jovanovic was accused of kidnapping, sexual abuse, and assault against the complainant. A majority of the People’s case against Jovanovic was based on the testimony of the complainant, and the use of four redacted emails to sway the defense in the People’s favor.87 With only four of the many emails shared between Jovanovic and the complainant – those being heavily redacted – it was nearly impossible for Jovanovic to defend himself as the jury was given a distorted, one sided view. The emails were originally ruled inadmissible because they constituted evidence of the complainant’s sexual history, and Jovanovic was not allowed to ask the complainant’s intimate partner, Luke, if he and the complainant engaged in consensual sadomasochism or any other conduct that could have caused bruises on the complainant.88 The issues behind the state rape shield laws were that the emails redacted and removed by the statute would have fallen under the exceptions of the rule – that being “prior sexual conduct with the accused” – because of the extremely intimate

86 Suk, Jeannie. “People v. Jovanovic.” H2O. Harvard University, March 22, 2016. Last modified March 22, 2016. Accessed March 12, 2020. https://h2o.law.harvard.edu/collages/40623. 87 Suk, “People v. Jovanovic” 88 Suk, “People v. Jovanovic”

22 messages sent to each other, and the assumptions of a possible relationship with Jovanovic made in the statements.89

Even if the emails between the two were to not fall under any of the law’s exceptions, the emails were not only crucial to Jovanovic’s side of the story, but were not being sought as a way to use the complainant’s sexual history against them.90 While it still questions if the complainant retracted consent as the night progressed and Jovanovic did act after the withdrawal of consent, the indication the complainant had an interest in participating in sadomasochism with him was relevant to the case.91 The rape shield law completely prohibited Jovanovic from providing any kind of defense to the jury, so the trial was decided on the account of the complainant, which convicted him of all charges and sentence of 15 years to life in prison.92 In December 1999, the

Appellate Division of the New York Supreme Court reversed the conviction and ordered a new trial, stating “as the case stood, Jovanovic was precluded not only bringing out the degree to which the (victim) seemed to be inviting sadomasochism,” but from examining whether she was

“a less-reliable narrator of events than she appeared to be at trial”. 93 On November 1, 2001, the prosecution dismissed the case, and Jovanovic was released. 94

The Joan Little trial was not only able to bring public attention to the injustices of self- defense in relation to sexual assault, but it brought into the picture the issues surrounding interracial sexual assault, both in civilian life and in the prison systems. On August 27, 1974, 21 year old Joan Little escaped from Beaufort County Jail after killing Clarence Alligood, a white officer.95 Alligood was found in Little’s cell, naked from the waist down with ejaculate on his

89 Suk, “People v. Jovanovic” 90 Suk, “People v. Jovanovic” 91 Suk, “People v. Jovanovic” 92 “Oliver Jovanovic.” National Registry of Exonerations. Last modified May 28, 2013. Accessed March 28, 2020. https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4182. 93 National Registry of Exonerations, “Oliver Jovanovic” 94 National Registry of Exonerations, “Oliver Jovanovic” 95 Jacquet, Catherine. The Injustices of Rape: How Activists Responded to Sexual Violence, 1950-1980. Chapel Hill: University of North Carolina Press, 2019. 23 thigh, and when Little turned herself into the State Bureau of Investigations a week after the event, she claimed she acted self-defense, stabbing Alligood with an icepick 11 times he brought into the cell.96 The state of North Carolina charged her with first degree murder, but this charge put Little in a place to become a political figure to address problems regarding white against black violence, racism in prison systems and judicial system, as well as the criminalization of women who use self-defense.97 Because of this, there are varying opinions from both sides on who Joan Little is. Those who sided with her politicized the case as helping women to defend themselves from rape, defending the rights of incarcerated black women, and helping black women who are sexually assaulted by white men. On the other side, a lot of white people and the prosecution believed Little lured Alligood into her cell with plans to murder him and escape from jail.98

As the case gained a national following, the publicity forced the trial to be moved to a different location. May 1, 1975 marked the first victory of the Joan Little case as well as the first time in the history of North Carolina to move a trial to a different location.99 It was originally going to be held in Beaufort County, but due to the levels of racism in the area, the Court decided it would be best to move to a less discriminatory area to have a fair trial. On August 15,

1975, a jury of 6 black people and 6 white people acquitted Joan Little of murder, which only took 78 minutes of discussion and surprised the public with its swiftness.100 A positive outcome for the victim in a case of interracial rape was rare, and the national publicity this case gained helped provide footing for future rape and racial activism.

Media coverage of rape trials can often be one sided, undermining the victims as people seeking revenge or money. It resulted in creating a skewed view of the victim and impacted the

96 Jacquet, “The Injustice of Rape” pg.109 97 Jacquet, “The Injustice of Rape” pg.111 98 Jacquet, “The Injustice of Rape” pg.116 99 Jacquet, “The Injustice of Rape” pg.119 100 Jacquet, “The Injustice of Rape” pg.131 24 proceedings of the trials. Coverage has also done it’s part in identifying unfair laws and treatment of people in different racial groups, bringing about social change and changes in legislation. Depending on the case itself, the media can present the information in a positive or negative light, but withholding information about rape trials would prevent the public from acknowledging the social and legal issues impacting sexual assault survivors.

Rape Activism:

As Joan Little served as a figure head for racial and rape activism, the issues surrounding the rape of black women were exposed. Interracial rape was a heavily criminalized issue in the late 1800s and early 1900s, and “[A]fter World War II, the black press was increasingly willing to openly criticize white women’s allegations of black male sexual violence”.101 As the crime was increasingly politicized, “black women also had difficult terrain to traverse in response to their allegations of black male sexual violence”.102 Case of interracial rape were being taken more seriously, but instances of intraracial rape were still ignored. The reason for lack of attention was deeply rooted in racial stereotypes: people didn’t want to provide evidence to enforce white stereotypes of black male violence.103 The black freedom movement had no issue bringing up sexual violence as a form of oppression, but didn’t relate it to crimes happening between a black man and a black woman.104 In 1964, Gwendolyn Simmons was sexually assaulted by a fellow member of the Student Nonviolent Coordinating Committee (SNCC). The

SNCC leader met her report with indifference, leading her to be the only project Leader during

Freedom Summer to “establish an explicit policy that barred sexual abuse of any kind among the volunteers”.105 The volunteers had to sign an agreement, and this policy caused a lot of dispute from male volunteers.106 The intraracial crimes committed during the 1960s largely ignored by 101 Jacquet, “The Injustice of Rape” pg.56 102 Jacquet, “The Injustice of Rape” pg.67 103 Jacquet, “The Injustice of Rape” pg.69 104 Jacquet, “The Injustice of Rape” pg.69 105 Jacquet, “The Injustice of Rape” pg.72 106 Jacquet, “The Injustice of Rape” pg.72 25 the black freedom movement led to these assumptions: interracial rape was more important than intraracial rape, intraracial rape doesn’t matter, and stereotypes held by white people were more important than the safety of black women. The focus on the rights of black defendants became the forefront of national organizations, creating the foundation for discordant opinions between racial justice and gender activists in the 1970s.107

Publicity in the media for these trials is important – it helps show that show the judicial side to these issues, whether or not the court supports the victim’s case or not. Trials are only moments in history – activism is constant. Women are trying to better improve their rights as humans, and this continues in modern society through the Take Back the Night movement. This movement doesn’t have a clear history, and there are many theories in which the first march happened. Most resources show the first event was in 1977; this all-woman event took place in

England to oppose violence against women, mainly rape.108 The original name was “Women

Reclaim the Night”, but was later broadened to encompass other issues like domestic violence, discrimination, and sexual harassment.109 Other sources report the marches started in Germany, either in 1973 “after a series of murders, rapes, and sexual assaults,” or in 1977 when women flooded the streets to protest systematic and pervasive violence against them.110 In the United

States, the first Take Back the Night march was not directly about rape, but about pornography.

In San Francisco, 1978, women from 30 states went to a conference held by Women Against

Violence in Pornography and Media to condemn and eliminate pornography as a whole; over

5,000 women marched through San Francisco’s pornography district that year.111

Over time, the march began to evolve in the United States, taking on similar issues

European countries were marching about. In 1978, Andrea Dawkins spoke about the purpose of 107 Jacquet, “The Injustice of Rape” pg.74 108 Wooden, Julie Marie. “Sexual Assault in Our Society: Women (and Men) Take Back the Night.” Retrospective Theses and Dissertations, no. 7101 (2000). 109 Wooden, “Sexual Assault in Our Society” pg.9 110 Wooden, “Sexual Assault in Our Society” pg.9 111 Wooden, “Sexual Assault in Our Society” pg.10 26 the movement: “Take Back the Night was a profound symbolic statement of [the] commitment to stopping the tide of violence against women in all arenas, and our demand that the perpetrators of such violence… be held responsible for their actions and made to change”.112 It was a call to women to walk together, and by doing so they can proclaim to their rapists their days are numbered, as together they are taking back a space stolen from them.113 More recent marches are being held on college campuses or by women’s organization, often during April, which is Sexual

Assault Awareness Month.114 The march layouts are often dependent on what the location choses, not by a set design. Often victims of sexual assault and rape will talk of their experiences, and the marches can range from being only women to male participation. Those who choose to have events be women only argue it’s for women to stand in solidarity and be able to walk the night without having men by their sides as a sign of “protection”, and others argue that denying men from the events means denying men’s support for women.115 Regardless, these are events of women’s activism have continued throughout the decades, continue the fight for equal rights and equal treatment of victims of rape and sexual assault.

It continues to be difficult to defend rape victims in a court of law and in the eyes of the media. While rape shield laws may protect a victim in court, the media can damage the viewpoint in which the trial is seen. The same can happen to the defendant, like Jovanovic, where the rape shield laws prevent him from fully defending himself and his actions. In an age where technology makes it easier to access information, information about the victim can be easily found and possibly used against them in court. Defending rape victims in the public eye has become a game of trying to protect their personal information and rights while also still abiding by the U.S. constitution. There are consequences to what the media publishes; they can either help further women’s right to self-defense during rape, or they can completely sway the

112 Wooden, “Sexual Assault in Our Society” pg.13 113 Wooden, “Sexual Assault in Our Society” pg.12 114 Smith, “Encyclopedia of Rape” pg.248 115 Smith, “Encyclopedia of Rape” pg.248 27 public view of a trial, similar to the Oregon v. Rideout case. The media prevalence of rape trials and legislation sways between beneficial and destructive, but to have no coverage at all would limit the growth many activists fight for.

Campus Rape:

To fully understand the impact of previous legislation regarding rape, it is crucial to see how they affect modern society. College campuses are frequent sites of sexual assault; one in almost every four female undergraduate students will be sexually assaulted or raped during their time at college.116 It is important to look at a smaller population that proportionally hold the most sexually assaulted age group to understand the treatment and social reactions of rape. Women in college between 18-24 are three times more likely to be sexually assaulted than any other age group.117. All colleges and universities in the United States are statistically the same for sexual assault; therefore, providing information about these issues allows the public to understand the legislative guidelines a college must follow and the consequences of inadequate support for victims of rape.

Sexual assault is prevalent on campuses across the country, averaging 1 in every 4 college women being sexually assaulted or raped during their undergraduate.118 Campus rape is divided into: stranger rape, where the victim doesn’t know the perpetrator, and acquaintance rape, where the perpetrator and victim know each other in some way.119 Within acquaintance rape, it can be further divided into date rape and party rape. They are often connotated with the consumption of alcohol; eight out of ten campus rapes are acquaintance rapes, and 57% of those cases involve a date.120 Even with the high rates of rape on campus, the victims rarely report to

116 “Campus Sexual Violence: Statistics.” RAINN. Accessed March 28, 2020. https://www.rainn.org/statistics/campus-sexual-violence. 117 RAINN, “Campus Sexual Violence: Statistics.” 118 Smith, “Encyclopedia of Rape” pg.32 119 Smith, “Encyclopedia of Rape” pg.32 120 Smith, “Encyclopedia of Rape” pg.32 28 the police. Only about 5% will involve law enforcement, 58% speak of the incident to someone else, and little is done to seek out help or counseling. 121 Students also face a higher risk of being sexually assaulted or raped within the first few months of their first and second semesters; more than 50% of college sexual assaults happening between August and November.122 Rape is often unreported because of the stigmas surrounding sexual assault. Victims believe that they are at fault for the assault, could be further humiliated for reporting, may not be taken seriously, or believe the encounter couldn’t be considered rape.123

While education on sexual assault is handled differently at each college, campuses are federally regulated by Title IX. “Title IX of the Education Amendments of 1972… is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities,” meaning all public and private education systems receiving federal financial assistance must comply with this law.124 The main goal of this law is to ensure no students are denied or limited from participating in educational programs or activities on the basis of sex. Schools violate a student’s right if the alleged conduct creates a hostile environment for the student and the school fails to take effective steps to eliminate the hostile environment.125

In regards to sexual violence, schools are also held to certain regulations under this law. Along with eliminating a hostile environment, the school must also take effective steps to end the sexual violence, prevent its reoccurrence, and remedy its effects.126 If the school is delayed in responding to any allegations connected to sexual violence or responds inappropriately, the school’s inaction adds to the hostile environment of the student, causing the situation to become more severe and cause the student to suffer.127 For reports received from students, protocol must

121 Smith, “Encyclopedia of Rape” pg.32 122 RAINN, “Campus Sexual Violence: Statistics.” 123 Smith, “Encyclopedia of Rape” pg.33 124 Office for Civil Rights, and Catherine E Lhamon. Questions and Answers on Title IX and Sexual Violence. Department of Education, 2014. 125 Office for Civil Rights, Questions and Answers on Title IX 126 Office for Civil Rights, Questions and Answers on Title IX 127 Office for Civil Rights, Questions and Answers on Title IX 29 be maintained to properly handle the complaints. The school is required to follow six steps when complying with Title IX regulations concerning sexual violence: they must notify students, provide an application of the grievances procedures to complainants, provide adequate and impartial investigations, designated a reasonable time frame, inform the complainant through writing of the outcome of the complaint, and assure that the school takes steps to prevent this from recurring.128 Schools must also have clear definitions of what sexual violence is, the potential consequences of such conduct, and how the school will process those complaints.129

Within Title IX requirements, there are two acts that further describe the rights of the complainant, as well as the alleged student. The Family Educational Rights and Privacy Act

(FERPA) gives rights to students over the age of 18 to have access to their educational records, control over personally identifiable information in records, and the right to file a complaint with the department.130 This disclosure is meant to help students maintain privacy and control over their information, but it differs for those who have been subjected to sexual violence. Exceptions to this rule include releasing the final results of a disciplinary hearing to the victim of an alleged perpetrator and to any third party, if the perpetrator is in violation of any school rules and policies.131 An addition within Title IX is the Clery Act, also known as the Campus Security Act.

This legislation was named in memory of Jeanne Clery who was raped and murdered at Lehigh

University, and this law requires all federally funded colleges and universities to publicly report any information regarding campus crime.132 There are four mandatory requirements schools must follow: maintenance of a daily log of all reported and alleged crimes, timely notifications of crimes threatening campus safety, publication of security report, and notification to all students that the consolidated security report exists.133 The law covers a variety of offenses, all being 128 Office for Civil Rights, Questions and Answers on Title IX 129 Office for Civil Rights, Questions and Answers on Title IX 130“FERPA for Students.” US Department of Education. Last modified June 26, 2015. Accessed March 28, 2020. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html. 131 US Department of Education, “FERPA for Students.” 132 Smith, “Encyclopedia of Rape” pg.34 133 Smith, “Encyclopedia of Rape” pg.34 30 categorized and defined to provide a clear explanation of each crime. The section for sex offenses includes rape, fondling, incest, and statutory rape. Under the Clery Act, rape is defined as “the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim”.134 These acts under Title IX are specifically in place to not only provide protection of one’s information from third party’s unless necessary, but to provide protection and vital information to victims of sexual violence in the hopes of reducing the rate of campus rape.

Regardless of the laws put in place to decrease campus rape, it doesn’t deny the fact it still happens. While rape statistics and cases are reported to the public, they rarely get the attention needed to bring light to the issue. Even if people are trying to raise awareness, like activists, it’s hard for them to speak out if mainstream media only spends a small portion of time on the issue. It takes a new way of reporting to get the attention of the public. During the 2014-

2015 school year, Emma Sulkowicz – a visual arts major at Columbia University – took her experience of campus rape and used art to showcase how traumatic and damaging it is.135 She was a sophomore when she was raped, and the university’s adjudicating committee found her assailant not guilty; her injustice fueled the idea behind the performance.136 She spent eight months carrying around a mattress around campus, even to her graduation, to bring light to the issues surrounding campus rape and the struggles that women face.137 She didn’t protest off campus – she only carried it on campus to further the implications of the offenses happening at the institution.138 Mattress Performance: Carry That Weight was Sulkowicz way of not only condemning her school, but provided a physical image to describe how heavy the burden of rape is. She carried the same mattress found in the on-campus dorms – heavy and utilitarian – to 134 “Clery Crimes and Definitions.” Department of Public Safety. University of Southern California, n.d. Accessed March 12, 2020. https://dps.usc.edu/alerts/clery/crime-definitions/. 135 Fryd, Vivien Green. Against Our Will. Sexual Trauma in American Art since 1970. University Park: Pennsylvania State University, 2019. 136 Fryd, Against Our Will, pg.281 137 Fryd, Against Our Will, pg.281 138 Fryd, Against Our Will, pg.282 31 signify “the burden that Sulkowicz felt forced to carry in protest against Columbia’s refusal to find her perpetrator guilty”.139 This performance was not just a one woman show; another group on the Columbia campus created a group called Carry the Weight Together to help support

Sulkowicz in her endeavors to bring light to campus rape at her university.140 On September 16,

2014, students rallied by carrying mattresses, chanting ‘carry that weight’, or covered their mouths with red tape, bringing life to their mantra “red tape won’t cover up rape”.141

Campus rape connects directly into the broad idea of rape culture. Rape culture is a term the originated in the 1970s, defining it as “a complex set of beliefs that encourages male sexual aggression and supports violence against women”.142 It’s the same idea encouraging women to do whatever they can to be raped because men who raped women didn’t have any control or “he simply couldn’t help himself”.143 This viewpoint forces women into thinking it’s their responsibility to take precautions avoid being attacked – don’t walk alone, carry pepper spray, don’t drink on a date, don’t go to a date’s apartment. This is further implied in the media, and not just from films and tv shows from the latter 20th century; it happened in response to Sulkowicz mattress performance. Kyle Smith from the National Review heavily critiqued Sulkowicz on her performances, saying her rape accusation at Columbia University was “’almost certainly false’” and how she is “indeed a sad, pathetic victim, but what has led her to per present state of unfortunate desperation is a female-empowerment culture that invites young women not only to be complicit in their own degradation, but to confuse it with liberation”.144 It is the same reason

Sulkowicz’s case was handled so poorly by Columbia – their speech was not only used to imply the accusation wasn’t important, but that she had consented to the acts as well. The adjudicators asked her about what position she was in during the rape, and even said it was impossible for the

139 Fryd, Against Our Will, pg.281 140 Fryd, Against Our Will, pg.282 141 Fryd, Against Our Will, pg.282 142 Smith, “Encyclopedia of Rape” pg.174 143 Smith, “Encyclopedia of Rape” pg.175 144 Fryd, Against Our Will, pg.283 32 perpetrator to have “anal sex without lubrication first”.145 The continuation of this type of speech surrounding rape still damages any movement towards improvements in sexual assault statistics on college campuses and modern society.

Rape culture has taken on the idea that rape is sex and attraction, so rape is the women’s fault – to put it simply, rape doesn’t exist because of those preconceived ideas.146 The continuation of the concept that rape doesn’t exist is further perpetuated by rape myths and the language of rape. Rape myths take “work to deny that instances of forced or coerced sex are actually rape”.147 The myths take different forms to falsify that act itself: women want to be raped, it’s only rape when a weapon is used, sexual violence arouses women.148 Media continues to spread this ideology through advertisements, shows, and music videos. Companies have created advertisements based off of fantasies; a shoes company showed a woman in a dark coat, stockings, and spike-heeled boots looking over her shoulder while she runs at dusk.149 The model was looking back at the camera with concern, and the layout of the shot places the consumer as the person the model is concerned about. While the advertisement is played off as desiring beauty and youth rather than sexual violence, the implications of the model’s look and the setting of the image create an unsafe environment many women fear to be in.150

While imaging remains an important aspect of vocalizing rape culture and rape romanticism, the language used in popular media continues to be an impactful force continuing to cultivate rape culture and the attitudes surrounding it. This type of language is often used unconsciously, but it is used carelessly, further reflecting the perspective of the rapists rather

145 Kim, Sandy. “The Revolution Against Campus Sexual Assault.” The Cut. Last modified September 22, 2014. Accessed March 28, 2020. https://www.thecut.com/2014/09/emma-sulkowicz-campus-sexual-assault- activism.html. 146“The Language of Rape.” Essay. In Transforming a Rape Culture, 125. Minneapolis, MN: Milkweed Editions, 2005. 147 Smith, “Encyclopedia of Rape” pg.191 148 Smith, “Encyclopedia of Rape” pg.5 149 Smith, “Encyclopedia of Rape” pg.5 150 Smith, “Encyclopedia of Rape” pg.5 33 than the victim. Descriptions of rape and sexual assault are diminished to “caressed” and “had sex with”, leaving out the force and lack of consent from the crime.151 Language discrepancies continue when rape is brought to trial or reporters are writing for a newspaper: women are called pretty, hysterical, flirtatious, vivacious, girl. These women become infantilized, which reduces their experience to something she placed upon herself, not something traumatizing she couldn’t control.145 This bias can be easily seen as well by changing the subject’s gender. Men in a trial wouldn’t be described as flirtatious, bubbly, or hysterical.152 “Some might argue that changes in our language can only follow changes in legislation and the social balance of genders, but I believe changes in language can also lead the way”, and there must be a push to make this change.153 To remove rape culture from society, not only must legislation be improved, but removing imagery and demeaning language from popular media must be taken equally or more seriously to incite the changes people desire.

Rape culture is a broad idea of how rape is treated. It is dependent how people are raised, their culture, and the role the government plays in rape legislation. A survey was conducted in

South Africa in 2009 to survey the extent of the rape crisis. Current statistics stated that every 26 seconds, a woman is raped in South Africa.154 From the survey, 25% of men admitted to raping someone, and 60% of boys over the age 11 believed “’sex is a male’s natural entitlement and forcing a girl to have sex does not constitute rape or an act of violence.’”155 There is a global conversation from the #MeToo movement, showcasing the vast amount of people who have face sexual harassment and assault.156 How these conversations and statistics are brought into light are important, and even more so in how people discuss them. People’s perspectives regarding the

151 “The Language of Rape” pg.126 152“The Language of Rape” pg.126 153“The Language of Rape” pg.126 154 John, Elton. Love Is the Cure: on Life, Loss, and the End of Aids. Rearsby, Leicester: WF Howes Ltd, 2013. 155 John, Love Is the Cure, pg.104 156 John, Love Is the Cure, pg.104 157 Abdulali, Sohaila. What We Talk About When We Talk About Rape. MYRIAD EDITIONS, 2019. 34 issue range drastically, advocating for a women’s right to speak or not at all. Rape culture isn’t impossible to track either; it is present on campuses and in how these campuses deal with rape accusations. Even under federal laws like Title IX, FERPA, and the Clery Act, legislation cannot control the way in which people think and comprehend an issue.

Campus rape statistics provide important insight when correlating national data to a smaller, more controlled community. One in almost every 4 women are raped or sexually assaulted on a college campus compared to one in every five women in the United States.158

Only 20% of female students will report their sexual assault to police, and only 47% of sexual assault cases are reported by victims in the United States.159 Even with regulations from Title IX, colleges still face the same variations as states when dealing with cases of sexual assault and rape, and the statistics prove it. Campus rape is not an issue only affecting those who enrolled in a college and living on campus. Just because a college campus contains a smaller population of people does not mean it doesn’t reflect national statistics in rape, sexual assault, and reporting issues. Even as time progresses and rape laws continue to provide more rights for victims, issues surrounding campus rape should still gain attention and consideration about what is going on in these small communities, not ridicule and passive attention from media and legislature.

Conclusion:

The silence surrounding the social and legal aspects of rape continues to threaten equal rights and protection for victims of rape. Even though the institution of the Model Penal Code was 58 years ago, its effects are still present in the laws of each state. There are still states with marital exemptions for rape, only a few of those excluding the possibility of marriage under the age of consent. Government regulations for colleges have done little to separate campus rape

35 statistics from their national counterpart. Although activism has helped victims of rape, public media representation of social stigma and laws have spread misinformation.

Rape is more common than most people care to admit, and coming to terms with the reality of the offense is difficult to comprehend, so the subject is often avoided entirely. What remains absent from conversations about rape is an understanding of the social and legal impacts of rape. Rape culture is constantly present in the United States through advertisements, tv shows, and comedy. This re-establishes the stigma victims must work through to get equal protection under the law, both on college campuses and in trials. Legally, discontinuities create an unjust system where the offense of rape varies from state to state; it alters the definition of rape, the definition of consent, marital exemptions, and statutory rape. All of these create instability preventing equal rights and protection for victims.

To speak about the injustices of rape can bring fear and retaliation, but it must be done in order to educate the public and change current legislation. There is no one right answer; it is an extensive and complex process to change laws people are unaware of and alter behaviors passed down through cultures and media. However, just because it is difficult does not mean it can’t be done. Rape: a word to be discussed, an offense to be prosecuted, an experience that should not be stigmatized. It is the process of rape education and undoing stigmatization that will lead not only to a society valuing the rights of rape victims, but providing a future less tolerant of the offense itself.

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