Crime and Punishment in American History - Lawrence M. Friedman [275]
Well into the 1980s, there is evidence that male jurors judged women harshly if they wore “provocative” clothing, or were “promiscuous,” and even if they happened to be divorced rather than married or single.56 In one Virginia case in 1980, a seventeen-year-old woman fell asleep in the back seat of a car, after riding around and drinking beer with some (male) friends. She accused one of the men (a nineteen-year-old) of rape. The jury acquitted, and the foreman told a reporter: “We reached a quick consensus that there was sexual intercourse and that there was not consent.” Then why did the jury acquit? Because, he explained, there was no evidence of resistance, screams, threats of death, or the like.57
A woman victim was thus still caught in a deadly trap. She was both victim and accused. Her case depended on chastity, or respectability—and extreme resistance. This may be one reason why so many victims of rape never reported the crime to police. Victim studies suggest that rape and other forms of sexual assault are alarmingly common crimes. But many women apparently prefer, or have preferred, to keep their mouths tightly shut.ee There were arrests for rape—and trials, and convictions—but the numbers were small, so small as to suggest that they must be the tip of the iceberg. There were only eighty-four rape cases in the Chicago criminal courts in 1926 (twenty-seven men went to prison); and, if we can believe the police report, only seventeen instances of rape in Honolulu in 1935, one of them “unfounded.”59 As late as 1969, there were 2,415 complaints of rape in New York, 1,085 arrests—and eighteen convictions.60
After 1970, however, there was a kind of revolution in the law of rape. The women’s movement was largely responsible. Women focused attention on men’s violence against them; they demanded changes in the law. They wanted to get rid of barriers to prosecution. They wanted women victims to be better treated. They wanted recognition that most rapists were not strangers, but friends, lovers, dates—even husbands. They wanted to abolish the flat rule of the law that no husband could be legally guilty of raping his wife.
What made women militant was nothing less than changes in the whole legal culture. It was a culture of rampant individualism, of a consciousness of self, and of rights to the self. The civil rights movement was a striking and successful model. What many women demanded, more or less openly, was equality of rights, of opportunity—and eventually, equality of power. This meant dismantling a social structure, and a family structure, that put men on top, a structure that almost all men, and probably most women, had once accepted without question as a natural, God-given plan.
The key word, perhaps, was choice. Coercion was the absence of choice, the opposite of choice; and rape was the epitome of coercion—the dark shadow that hung over women in the streets, in the workplace, even in their homes. Cracks in the legal structure began to appear in the sixties. Courts began to relax the doctrine that a woman had to offer extreme resistance. Many states passed what became known as “rape shield” laws, which barred evidence of prior sexual activity. Many of the reform laws were fairly comprehensive. Perhaps the most significant was the Michigan statute of 1974. It mentioned four types of “criminal sexual conduct” (the language was gender-neutral).61 Under this law, the victim did not have the duty to resist heroically; the victim’s testimony did not have to be corroborated; and the victims sex life was not to be paraded before judge and jury, except in rare circumstances. Not all states went as far as Michigan, but rape