Rape and Sexual Regulation

1. The relationship between sexual regulation and rape law: the force requirement.

In Sex and Guilt, Professor Anne Coughlin argues that "we cannot understand rape law unless we study the doctrine, not in isolation, but in conjunction with the fornication and adultery prohibitions with which it formerly resided and, perhaps, continues to reside." (p.6) She notes that, historically, "rape was only one of two basic categories of heterosexual offenses. The other category of offenses consisted of consensual sexual intercourse outside marriage-fornication and adultery-in which the man and the woman were accomplices." Because "the underlying sexual activity in which a rape complainant engaged (albeit, by her own testimony, unwillingly) was criminal misconduct, her complaint logically could be construed as a plea to be relieved of responsibility for committing that crime." (P8) Therefore, "the elements of the rape offense (almost) are a mirror image of the defenses we would expect from women accused of fornication or adultery. Such traditional defensive strategies would include the claim that the woman had committed no actus reus, that she lacked the mens rea for fornication or adultery, or that she had submitted to the intercourse under duress." (P8). 

Coughlin ultimately concludes that, if we agree that sex outside of heterosexual marriage should not be criminalized, "then there appears to be no justification for adhering to a definition of rape that treats the rapist's victim as a lawbreaker who must plead for an excuse from criminal responsibility." (P9). 

2. The relationship between sexual regulation and rape law: exceptions for rape to anti-abortion law.

Coughlin concludes that changing norms about sex outside of heterosexual marriage should change the scope of rape law. But what if those norms are now changing back? How that might shape the development of rape law? For states that criminalize abortion except in cases of rape, for example, an allegation of rape would serve as a “defense” against criminal liability for an abortion. Might we see some interplay between the criminalization of abortion and the legal doctrine around rape?

Consider this excerpt from a recent news article.

"For starters, exceptions for rape and incest are uncommon. The Guttmacher Institute, a research organization that supports reproductive rights, anticipates 26 states certain or likely to ban abortion now that there are no federal protections. 

Among those 26 states, there are about 41 abortion bans total, with some states having more than one ban, it said. Just 10 of the 41 bans have exceptions for rape and incest.

In the states that do have rape and incest exceptions, requirements vary. Many, such as Utah, require victims of sexual assault to file a police report. 

Given that more than 2 out of 3 sexual assaults go unreported, according to the Rape, Abuse and Incest National Network, these laws are problematic, said Grace Howard, an assistant professor of justice studies at San Jose State University who studies the criminalization of pregnancy.

Howard, who is a sexual violence survivor, said reasons for not disclosing such assaults range from self-blame to worrying about not being believed — a fear that often becomes reality when people speak up. 

“It’s kind of this second round of being traumatized,” Howard said. “I fear that this will push people away from exercising that legal loophole that would allow a rape victim to receive this form of care.”"