Historical commentary on shifting rape law perspectives

4.2.12 WC: 191694 Even as recently as the early 20" Century, the influential legal commentator, John Wigmore, proposed that women who accuse men of rape should be subjected to a psychiatric examination because: “Modern psychiatrists have amply studied the behavior of errant young girls and women coming before the court in all sorts of cases. Their psychic complexes are multifarious, distorted partly by inherent defects, partly by diseased derangements, partly by bad social environment, partly by temporary psychological or emotional conditions. One form taken by these complexes is that of contriving false charges of sexual offenses by men. The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex incidents of which the narrator is the heroine or the victim. On the surface the narration is straightforward and convincing. The real victims, however, too often in such cases is the innocent man...” Even as late as the 1960s, the Supreme Court of Georgia, in rejecting Justice Goldberg’s view that the death penalty might be unconstitutional for rape, provided the following male-centered justification for why rapists must be executed: “We reject this [attempt to reduce the protection of] mothers of mankind, the cornerstone of civilized society, and the zenith of God’s creation, against a crime more horrible than death, which is the forcible sexual invasion of her body, the temple of her soul, thereby soiling for life her purity, the most precious attribute of all mankind [sic!].” During the last quarter of the 20" Century, political and academic feminism began to focus attention on the gender inequalities implicit, and often explicit, in rape laws. Within a short period of time, thousands of years of anachronistic rules governing the prosecution of rape cases were changed. The testimony of rape victims no longer had to be corroborated. Rape shield laws prohibited defense attorneys from questioning alleged rape victims about their prior sexual history. Husbands could be prosecuted for forcing their wives to have sex. The force and resistance elements of rape were amended in most jurisdictions to require only a lack of consent. Date rape was punished as seriously as stranger rape. Most importantly, attitudes changed, at least among some groups which no longer treated predatory males as macho heroes and women who dressed provocatively as automatically consenting sex partners. Nearly all of the rules that had made it difficult to prosecute rapists were amended within the course of little more than a decade, as the pendulum swung quite dramatically from a male- centered view of rape to a female-centered view. As with many wide swings of a pendulum, there was little effort to strike a carefully calibrated balance that represented our general approach to all crimes: namely that there must be a heavy burden of proof on the prosecution and that it is better for 10 guilty rapists to go free than for even one innocent accused rapist to be wrongly convicted. Indeed even that salutary rule was challenged by some feminists in the context of rape.” One influential scholar went so far as to suggest that all sexual intercourse is essentially rape” and that 7 [get sources] 8 [Andrew Dworkin] 231 HOUSE_OVERSIGHT_017318