This month, we saw the abolition of the provision that allows rapists to escape punishment if they marry their victims in Jordan and many countries are now planning to repeal the ‘marry your rapists’ laws, but sadly, many outdated rape laws still prevail.
I propose, we go back in history and see some rape laws, and how they evolved and have their place, or maybe not in the 21th century.
Legal history of rape
In some ancient societies, in the ‘bride capture’ system a man could kidnap a woman and force her to have sex, and then marry her, this was heroic, thus rape was socially acceptable. But under the Code of Hammurabi, a married woman who was raped was accused of adultery and the law required the woman and the rapist to be drowned in a river while under the Hebrew law; the married woman would be stoned to death.
The English Common system and the US
In the 13th century, the common law in England criminalized rape; defined as “sexual penetration of a woman forcibly and against her will”, (with the exception of marital rape because at, wives were considered as property of their husbands and could not legally refused sex)
The law was in favor of men, since there were legal procedures that made the prosecution of rape hard.
Under the utmost resistance doctrine, a man could be found guilty of rape only if the victim could prove that she had physically attempted to fight off, with bruises for e.g.
Under the fresh complain rule, a woman must file a case immediately else her case would not be heard as people believed that a delay means a false rape case.
Rules of evidence were also biased, placing more value in preventing false accusations than on protecting women from actual rapes, with theories that most women fabricate cases for revenge, or out of shame, or fantasized the rape.
Gender bias evidentiary rules governed what information was available to the jury during a trial
A woman who filed a rape case was questioned in court about her sex life to show that she had consented to sex with the accused on another occasion/she had consented to sexual intercourse with another man or men/she did not have a good reputation for chastity.
The US, to further protect men from false cases, passed a law saying that in the absence of physical evidence (semen or bruises), the victim’s testimony was insufficient as evidence.
Many states redefined rape, edited some of the common law doctrines and eliminated biases against victims as activists argued that existing laws did more harm to women rather than protecting them.
Allowed men to file rape cases
Introduction of rape shield laws; limit the ways in which lawyers can question a victim about her/his sex life and give rights to the victims
Elimination of fresh complain rule and corroboration rule due to the rape trauma syndrome, a form of post-traumatic stress disorder, is a psychological reaction to rape involving feelings of shock and shame making victims less reluctant to report cases of rape
Where are we today?
With the emancipation of women, we come a long way. Laws vary from country to country and despite the legal reforms, which are debatable, in some countries, victims are punished by social taboos while rapists are never punished by law. We still have a long way to do, and we need help.
A note to the Step Up Community and all the young people out there:
It is not necessary to be lawyers to step up for legal reforms. Changing legislation leads to social change and vice versa.
We are yet to fight for making marital rape a crime, for cutting off social taboos with legislation, for creating a more accessible judicial system where both men and women can feel safe and get justice, for gender neutrality in rape laws, for bringing up consent laws as well as provisions for male victims because men get raped too, for all the victim- blaming that is going on. If rape laws do not get updated, it’s the rape culture that wins.