Crime and Punishment in American History - Lawrence M. Friedman [276]
A dramatic change was the decline and fall of the rule that a husband could not be guilty of raping his own wife. Since a woman “promised to love, honor and obey,” she was “obligated to submit.” Also, it was said, men rarely raped their wives; and the state had no business meddling in the intimacies of marriage.63 But the reality was that some marriages were a coercive hell; many wives were raped by sadistic or drunken boors; other wives, by the thousands, found themselves forced or browbeaten into sexual acts they had never really said yes to. Nothing better illustrated male power than the zone of male immunity inside the family.
In 1977, Oregon dropped the husband’s immunity from its rape law; a year later, the first case under the statute appeared. It was a sordid and ambiguous affair, and John Rideout, the defendant, husband of Greta Rideout, was acquitted. By 1980, only three states—Oregon, Nebraska, and New Jersey—had entirely gotten rid of the husband’s license to rape; five other states had reformed their laws in part. But the tide was running fast: by 1989, only eight states still clung resolutely to the old rule. All the rest had either completely abolished it, or abolished it with some exemptions.64 Between 1978 and 1985, 210 husbands were arrested for rape; 118 went to trial, and in 104 of these cases (88 percent), there was a conviction. The high rate of conviction suggests, according to one authority, that only the most aggravated cases end up in court: the “thousands of women who are raped by their husbands in more ‘ordinary’ ways, without the employment of tire irons, dogs, strangulation, or death threats, are simply not reporting their experiences to the police.”65
The new women’s consciousness has focused attention also on “date rape.” It forced recognition of an uncomfortable fact: most men who push unwanted sex on women are not psychopathic or brutal strangers: they are not strangers at all. Date-rape prosecutions were not common; but the problem was widely discussed on college campuses; and what was arguably an instance of date rape burst into national prominence in 1991, when a woman accused William Kennedy Smith, a nephew of the late John F. Kennedy, of rape. The couple met at a bar in Palm Beach, Florida, and went from there to the Kennedy estate, where they had sex—willingly, in Smith’s account; violently, in hers. Millions saw the trial on television (the victim’s face was reduced to an electronic blur). The six-person jury (four members were women) acquitted Smith, on December 11, 1991.66
Did reform of rape laws make a difference? It is difficult to tell. Two scholars who recently studied rape-law reforms of various types found, to their surprise, little evidence of an impact on practice; and it mattered very little whether reform laws were strong or weak.67 This was so for a number of reasons, some of which seem to contradict each other. On the one hand, the criminal justice system tends to resist change; it is so gangly, so obstreperous, so riddled with discretionary detours. Then, too, the reforms did not come out of the blue; they were effects as much as causes. Courts had already felt the moral and political pressure generated by the women’s movement. When the reform laws finally came, they merely put a cap on a process that was already taking place. For example, there had been a rule that the woman’s testimony had to be “corroborated.” But even before the reform of the statutes, the courts had acted on their own; they reduced the need for “corroboration” down to the merest sliver of its former self.
Changes, both gross and subtle, had taken place, and will continue to do so. There is no returning to the dark ages. But law is a fairly crude instrument. It can hardly capture all the nuances and gradations in the tournament of sex, all the steps of the staircase that lead down from melting love to the crudest, darkest acts of violation. What is clear is that women have a voice in the system in a way that they never did