Against Our Will: Men, Women, and Rape (86 page)

WOMEN FIGHT BACK
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The law must rid itself of other, outdated masculine concepts as well.

Since man first equated rape with the ruination of his wholly owned property, the thef t of his private treasure, he reflected his concern most thunderously in the punishments that his law could impose. Today in many states of the Union, a conviction for first degree felonious rape still draws a life sentence, and before the i972 Supreme Court ruling that abolished capital punishment, a number of Southern states set the penalty at death. A modern perception of sexual assault that views the crime strictly as an injury to the victim's bodily integrity, and not as an injury to the purity or chastity of man's estate, must normalize the penalties for such an offense and bring them in line more realistically with the penalties for aggravated assault, the crime to which a sexual assault is most closely related.

Here the law must move from its view that "carnal knowl edge" is the crux of the crime to an appreciation that the severity of the offense, and the corresponding severity of the penalty that may be imposed, might better be gauged by the severity of the objective physical injury sustained by the victim during the course of the attack. Another criterion that the law can reflect beyond objective physical injury in the imposition of penalties is the man ner in which the assault was accomplished. As the current law distinguishes between the severity of an armed robbery versus an unarmed robbery, so must the law distinguish between the com mission of a sexual assault with a deadly weapon-in which the threat against the victim's life is manifest and self-evident-and a sexual assault committed without a weapon. The participation of two or more offenders is another useful indicator of the severity of a sexual assault, since a number of assailants by their overwhelming presence constitutes a realistic threat of bodily harm.

Parenthetically I want to note at this point that I am one of those people who view a prison sentence as a just and lawful societal solution to the problem of criminal activity, the best solu tion we have at this time, as civilized retribution and as a deterrent against the commission of future crimes. Whether or not a term in jail is truly "rehabilitative" matters less, I think, than whether or not a guilty offender is given the penalty his crime deserves.
It
is important to be concerned with the treatment offenders receive in

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prison, but a greater priority, it would seem, is to
.
ensure that offenders actually go to prison.*

Current feminist thinking on sexual assault legislation favors a system of sentencing that ranges from six months to twenty years, depending on the severity of the crime. This approach strikes me as sound, even generous, for with good behavior, a prisoner may be paroled af ter one-third of his sentence is served. ( As it stands now, a convicted rapist who goes to jail serves an average of forty-four months; the problem, however, is that few rapists actually reach jail. ) A sexual assault case in which the victim has suffered perma nent physical damage or disfigurement, or lasting psychological damage, should subject the offender to additional charges and penal ties for aggravated assault as well.

Rape, as the current law defines it, is the forcible perpetration of an act of sexual intercourse on the body of a woman
not
one's
wife.
The exemption from rape prosecutions granted to husbands who force their wives into acts of sexual union by physical means is as ancient
.
as the original definition of criminal rape, which was synonymous with that quaint phrase of Biblical origin, "unlawful carnal knowledge." To our Biblical forefathers, any carnal knowl edge outside the marriage contract was "unlawful." And any carnal knowledge within the marriage contract was, by definition, "law ful." Thus, as the law evolved, the idea that a husband could be prosecuted for raping his wife was unthinkable, for the law was conceived to protect
his
interests, not those of his wife. Sir Mat thew Hale explained to his peers in the seventeenth century, "A husband cannot be guilty of rape upon his wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband, which she cannot retract."
In
other words, marriage implies consent to sexual intercourse at all times, and a husband has a lawful right to copulate with his wife against her will and by force according to the terms of their contract.

*
Since "Castrate Rapists" has become a slogan in certain circles, I guess I should say on the record that I am not "for" castration any more than I am "for" cutting off the ear of an informer or cutting off the hand of a thief. As for retaliatory killing, of which there have been a few recent cases, I would go along with the law and say that the concept of justifiable homicide in self defense is sound, but premeditated murder some time af ter the act can never be condoned.

The most famous marital rape in literature, occurring onstage in the popular television serial but offstage in the novel, is that of Irene by Soames in The Forsyte Saga. As Galsworthy presents the Soamesian logic, the logic of Everyhusband, although perhaps not of Galsworthy himself, the denied husband has "at last asserted his rights and acted like a man." In his orning-af ter solitude while he hears Irene still crying in the bedroom, Soames muses, "The inci dent was really of no great moment; women made a fuss about it in books; but in the cool judgment of right-thinking men, of men of the world, such as he recollected of ten received praise in the Di vorce Court, he had but done his best to sustain the sanctity of marriage, to prevent her from abandoning her duty. . . . No, he did not regret it."

In the cool judgment of right-thinking women, compulsory sexual intercouse is not a husband's right in marriage, for such a "right" gives the lie to any concept of equality and human dignity. Consent is better arrived at by husband and wife afresh each time, for if women are to be what we believe we are-equal partners then intercourse must be construed as an act of mutual desire and not as a wifely "duty," enforced by the permissible threat of bodily harm or of economic sanctions.

In cases of rape within a marriage, the law must take a philo sophic leap of the greatest magnitude, for while the ancient con cept of conjugal rights (female rights as well as male ) might continue to have some validity in annulments and contested divorces-civil procedures conducted in courts of law-it must not be used as a shield to cover acts of force perpetrated by husbands on the bodies of their wives. There are those who believe that the current laws governing assault and battery are sufficient to deal with the cases of forcible rape in marriage, and those who take the more liberal stand that a sexual assault law might be applicable only to those men legally separated from their wives who return to "claim" their marital "right," but either of these solutions fails to come to grips with the basic violation.

Since the beginning of written history, criminal rape has been bound up with the common law of consent in marriage, and it is time, once and for all, to make a clean break. A sexual assault is an invasion of bodily integrity and a violation of freedom and self determination wherever it happens to take place, in or out of the marriage bed. I recognize that it is easier to write these words than

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to draw up a workable legal provision, and I recognize the diffi culties that juries will have in their deliberations when faced with a wife who accuses her husband of forcing her into copulation against her will, but the principle of bodily self-determination must be established without qualification, I think, if it is to become an inviolable principle on any level. And revolutionary as this prin ciple may appear to the traditions of Anglo-American jurispru dence, it is accepted as a matter of course and human dignity in the criminal codes of Sweden and Denmark and in the codes of the

U.S.S.R. and other countries in the Communist bloc as well, al though how it works out in practice I cannot say. (Certain of these European countries, including Switzerland and Yugoslavia, also equate economic threats, such as the threatened loss of a job, with threats of physical force in cases of rape. )

The concept of consent rears its formidable head in the much debated laws of statutory rape, but here consent is construed in the opposite sense-not as something that cannot be retracted, as in marriage, but as something that cannot be given. Since the thir teenth-century Statutes of Westminster, the law has sought to fix an arbitrary age below which an act of sexual intercourse with a female, with or without the use of force, is deemed a criminal offense that deserves severe punishment because the female is too young to know her own mind. Coexistent with these statutory rape laws, and somewhat contradictory to them, have been the laws governing criminal incest, sexual victimization of a child by a blood relation, where the imposition of legal penalties has been chari tably lenient, to say the least-yet another indication of the theo retical concept that the child "belongs" to the father's estate. Under current legislation, which is by no means uniform, a convic tion for statutory rape may draw a life sentence in many jurisdic tions, yet a conviction for incest rarely carries more than a ten-year sentence, approximately the same maximum penalty that is fixed by law for sodomy offenses.

If
protection of the bodily integrity of all children is to be genuinely reflected in the law, and not simply the protection of patriarchal interests, then the current division of offenses (statu tory rape for outsiders; incest for members of the victim's family ) must be erased. Retaining a fixed age of consent seems a necessary and humane measure for the protection of young girls and young boys alike, although it must be understood that any arbitrary age

limit is at best a judicious compromise since sexual maturity and wisdom are not automatically conferred with the passage of time. Feminists who have applied themselves to this difficult question are in agreement that all children below the age of twelve deserve unqualified protection by a statutory age provision in sexual assault legislation, since that age is reasonably linked with the onset of puberty and awareness of sex, its biologic functions and repercus sions. In line with the tradition of current statutory rape legisla tion, offenses committed against children below the age of twelve should carry the maximum penalty, normalized to twenty years. Recognizing that young persons above twelve and below sixteen remain particularly vulnerable to sexual coercion by adults who use a position of authority, rather than physical force, to achieve their aim (within the household or within an institution or a medical facility, to give three all-too-common examples) , the law ought to be flexible enough to allow prosecutorial discretion in the handling of these cases under a more limited concept of "statutory sexual assault," with corresponding lesser penalties as the outer age limits are reached.