Punishment for Rape Essay

Custom Student Mr. Teacher ENG 1001-04 16 February 2017

Punishment for Rape

Introduction

            Crimes related to sexual assault subsume a wide array of physical acts, which is either carried out or attempted by a person or persons, and aimed at achieving sexual gratification of whatever sort, but without the lawful consent of the other party. Of these crimes, especially with regard to the age, mental and physical development and kinship or acquaintances of the parties involved, rape and child abuse are most gravely frowned at, internationally1. However, despite the intolerant attitudes and severe punishments often melted out to culprits, rape and other forms of sexual assault are still on the increase globally2. It is said that rape is the fastest growing violent crime in several parts of the world, and despite the increasing legal punishment, rape still constitutes a grave problem for many societies.

            Differences in cultural and social attitudes and perceptions about human sexual relations have also often influenced the criminalization, or otherwise of rape. Different cultures hold varying, and at times, opposing views or concept about rape; what constitutes rape in a culture might just be acceptable or even encouraged in other cultures3.  Even where certain sexual acts are regarded as contrary to the societal mores, it is not automatically criminalized or punishable.

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  1. Nadesan, K 2001. Rape: An Asian Perspective. Journal of Clinical Medicine, 8, 93-98.
  2. Temkin, Jennifer 2002. Rape and the Legal Process. Great Britain: Oxford University Press.
  3. Posner, A Richard 1992. Sex and Reason. Harvard:Harvard University Press.

Posner cited the example of ancient Greek culture where incest and lesbianism, for example, were considered disgusting and horrific, but were not criminalized or punishable. The author further insinuated that the reason for punishing crimes, or the gravity of the punishment melted out to crimes might not be influenced by the gravity of the offense, as much as it is influenced by the efforts required and the probability of catching the criminal. The different punishments enforceable for rape and factors that influence the choice of punishments will be the concern of this paper.

            Definition and Types of Rape

            The diversity in sexual customs and perceptions is often mirrored in the varying definition of the term. Over the course of history, and as the legal system evolves, the definition of rape, especially as it concerns the law, has greatly changed in recent history. According to Herman4, rape can be simply defined as sexual intercourse against a person’s will, unfortunately,  this definition does not sufficiently describes what the varying forms of rape entails. Moreover, such definitions of rape, as is evident in the English common Law of the eighteenth century, requires the rape victim to prove that the sexual intercourse was actually against her will, by presenting with bruises or physical injury to confirm that she actually did attempt to avoid the intercourse.

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  1. Campbell, Rebecca 1998. The Community Response to Rape: Victims’ Experiences with the Legal, Medical, and Mental Health Systems. American Journal of Community Psychology, 26,3:355-379.

Campbell5  and Cowan6  provided a modern and more elaborate definition of rape. Cowan defined rape as “nonconsensual sexual penetration of an adolescent or adult obtained by physical force, by threat of bodily harm, or when the victim is incapable of giving consent by virtue of mental illness, mental retardation, or intoxication7”. Further, as perceptions and attitudes about sexual relations and gender inequality changes, different forms of rape evolved. This is borne out of the continual efforts of legal reformers and lawmakers to define and delineate what actions and behaviors constitute rape.

The requirement for ‘consent’ and the meaning of sexual intercourse have been continually stretched, as a result. For example, the English common law initially defines rape as unlawful sexual intercourse with a woman, who at the time of the intercourse did not consent to it, and the man knows that she does not consent, or he is reckless and does not care if she cares of not. Amendment of this provision replaced sexual intercourse with ‘vagina or anal penetration’ and replaced ‘woman’ with ‘person’, indicating the changing perception of rape.

            One of the results of these continually changing attitudes towards rape is that different types of rapes have been delineated and the punishment for these set out with respect t the perceived gravity of the offence. Herman8 identified four types of

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  1. Campbell, Rebecca 1998. The Community Response to Rape: Victims’ Experiences with the Legal, Medical, and Mental Health Systems. American Journal of Community Psychology, 26,3:355-379.
  2. Cowan, Gloria 2000. Beliefs About the Causes of Four Types of Rape. Sex Roles, 42, 9/10:807-823.
  3. Ibid 807
  4. Herman, 2007

rapes; forcible rape, acquaintance rape, marital rape and statutory rape. Cowan9 in contrast, differentiated between acquaintance rape and date rape, referred to forcible rape as ‘stranger rape’ and marital rate as ‘partner rape’, though the underlying meanings of these types of rapes remained the same. These types of rapes are apparently self explanatory.

            Stranger or forcible rape involves sexual act carried out against an unknown person through the use of or threat of force. This is, obviously, the oldest perception of rape, thus, most punishments for rapes apply to this type of rape. Acquaintance and date rapes involve sexual acts carried out against a familiar person, with the degree of familiarity the major difference between the two types of rape. Although, acquaintances and dates may also carry out forcible rape (i.e. rape with the use or threat of force), these types of rape are related to nonconsensual sexual activity. Partner or marital rape involves sexual intercourse with a spouse without a valid consent.

This type of rape is the most controversial. Posner10  reports that as late as 1994 the American Legal Institute recommended that spousal rape cases should not be heard in courts, based on the understanding that it involves violation of marital privacy. Obviously, this type of rape carries the most lenient punishment and is often filtered out. Statutory rape, which involves sexual acts or behavior with under age or people who can not give valid consent, due to mental retardation, influence of drug and/or alcohol. This type of rape also invokes serious societal reactions and as such is often severely punished.

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  1. Cowan, 2000
  2. Posner, 1992

            Of these types of rapes, acquaintance and/or date rape are always ignored. Cowan posit that until recently, acquaintance rape was not even considered rape at all. However, this type of rape is the most prevalent. In a study of over 3000 colleague students reported by Koss and others11, acquaintance rape involving varying degree of relationship accounted for a whooping 90 and 80 percent of all sexual assault cases, while 57 percent were assaulted by their dates.

It is also argued that, though women acknowledge that acquaintance rape is more common than stranger or forcible rapes, they still fear stranger rapes more. The essence of this explanation is to show that the severity of punishment for rapes is not necessarily determined by the gravity of the offence, but by societal and/or cultural attitudes towards sexual relations, as this is what influences laws and policies in the first place.

            Rape Punishments

            Explaining the reasons and goals of punishment, Orth12 assert that the society demands punishment of offenders for varying reasons, which ranges from, to give the offender his just deserts, to educate the offender, to protect the society, or to deter future potential offenders. The author further states that the goals of such punishments find their foundation in several penal theories such as the ‘just deserts’ derived from the retributive penal theories of Kant and Hegel; deterrence of offender, derived from the utilitarian penal theories which seek to incapacitate or rehabilitate the offender. The

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  1. Koss, M. P., Gidycz, C., and Wisniewski, N. 1987. The scope of rape: Incidence and prevalence of sexual aggression and victimization in a national sample of higher education students. Journal of Consulting and Clinical Psychology, 55, 162–170.
  2. Orth, Uli 2003. Punishment Goals of Crime Victims. Law and Human Behavior, 27, 2: 173-186.

newest addition to these penal theories is the theory of general positive prevention where punishment is intended to foster awareness of the law, to stabilize moral norms and behaviors and to preserve the general population’s trust in the criminal justice system13.

            Vidmar and Miller14 in a detailed sociopsychological analysis grouped the motives for punishment into two broad categories; retributive and behavioral control. The retributive motive of punishment is based on moral reflections and its goal is to strengthen the societal values violated by the crime. The behavioral control motive, in contrast, seeks to control the behavior of the offender through incapacitation, rehabilitation or any other means necessary15.

            However, punishment only becomes necessary where societal decides that a violation worthy of criminalization has been committed. In this regard, Posner16 argues that, especially in the case of sexual offences, violation of culturally acceptable norms does not always amount to a punishable offence. In defending this position, the author pointed out that the ancient Greeks regarded incest with horror and lesbianism with disgust; however, both crimes were not considered punishable. Again, the early English Law which recommended severe punishments for sodomites, did not see lesbianism as

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  1. Orth, 2003; McFatter, R. M. 1982. Purposes of punishment: Effects of utilities of criminal sanctions on perceived appropriateness. Journal of Applied Psychology, 67, 255–267.
  2. Vidmar, N., and Miller, D. T. 1980. Socialpsychological processes underlying attitudes toward legal punishment. .Law and Society Review, 14, 565–602.
  3. Montada, L. 1994. Injustice in harm and loss. Social Justice Research, 7, 5–28.
  4. Posner, 1992

worthy of punishment, neither did Nazi Germany criminalized it. The idea in this argument is that punishment for rapes and other sexual crimes do not always conform with the severity of the crime, but to the [in]tolerance of the society.

            This fact is further strengthened by the different punishment for rape that different cultures and nations have adopted in history. Some examples will suffice to explore punishments for rape. Herman17 presented a short historical overview of rape punishments in ancient cultures.  It is said that in some ancient cultures, both the rapist and the raped were punished.

Under the Babylonian Code of Hammurabi, for instance, a married woman that was raped was considered to have committed adultery was bound with the rapist and thrown inside the river. In some other cultures, the woman was considered a property of the man, thus rape was considered a violation of someone’s property and the punishment involves payment of fines to the property owner, the father or husband of the rape victim.

            However, modern perception of rape began with the development of the English Common Law. It was very difficult to obtain a conviction for rape, then, as the law was more concerned with protecting men from false accusations than protecting women from rape. Strict requirements, like the utmost resistance and fresh complaint rule were put in place. The utmost resistance rules stipulates that a woman can only reasonably accuse someone of rape if she presents with physical signs that she had actually attempted to

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  1. Herman, 2007

refuse or stop the rape. Under the fresh complaint rule, a rape case was invalid except it was reported immediately. Under these regulations, women could be extensively cross examined by the alleged rapist attorney to show that “(1) she had consented to sexual intercourse with the defendant (accused rapist) on that or another occasion, (2) she had consented to sexual intercourse with another man or men, or (3) she did not have a good reputation for chastity18” in order to discredit the rape allegation. Although it was very difficult to get a conviction for rape, under those early laws, the punishment for rape was very severe. It was often treated as capital offense, punishable by death in most cases.

            The English common Law is significant because the criminal laws of the United States, Canada and several European countries were modeled in line with the English Common Law, as such, the requirements for a rape conviction and the punishment for rape was similar in several countries, though cultural values and societal attitudes towards sexual relations influenced the changes to these laws with time. Analyzing the punishment for rape in the United States, Posner19 showed that the United States tend to have stricter punishments for rape compared to several other countries, with the exception of the UK which tend to fall in the same category with America.

            The author argued that the punishment for rape, as said earlier, is influenced by attitudes towards sexual relations and materials. In this regard, it is pointed out that in

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  1. Ibid
  2. Posner, 1992

Sweden prostitution is not a crime, nor is the sale of pornography, nor consensual homosexual relations between two adults. Fornication is not considered a crime, neither are children born out of wedlock considered illegitimate. As a result of this culturally lenient attitude towards sexual relations, punishment for rape is expectedly light and lenient. The maximum prison sentence for rape in the country is  only six years, except the rapist inflicts severe bodily harm on the victim, in which case the maximum prison sentence increases to ten. The maximum prison sentence for statutory rape – sexual intercourse with a minor, set at 15years, is only four years, for father – daughter incest, two years, and for sibling incest, one year. This is also the set of punishments prescribed for rape in Denmark19.

            France, which is notable for her severe criminal codes, also has lenient punishments for the various types of rape. Sodomy is not considered a crime here, homosexual acts are only criminal if committed upon a person younger than 21years of age, yet the maximum prison sentence is three years. The maximum punishment for rape is ten years sentence, while for statutory rape – where the minor is under 15years, the punishment is ten years, but twenty for father – daughter incest, which is the maximum punishment for any rape case.

England has what could be considered as the most sever rape punishment arrangement. For sodomy committed upon a woman, a boy under the age of 16 or an animal, the maximum punishment is life imprisonment, albeit sodomy between two consenting men of at least 21years is not considered a crime, but if one of the parties is younger than 21, it becomes a crime with a maximum punishment of five

  1. Ibid p.72

years sentence. Statutory rape of a minor under 13 attracts life imprisonment but f the minor is above 13 but not 16 yet, it attracts a two year sentence. The maximum punishment for any form of incest is seven years.

            In contrast with the countries mentioned above, the legal processes and punishment for rape in the United States is far more diverse. This is obviously due to the fact that the criminal code, for the greatest part, is not the product of federal, but the different state legal apparatus. As a result, the processing of rape cases, the attitudes towards rape and thus the punishment meted out to convicted rapist vary widely. Presenting a graphical detail of the situation in the United States, Campbell stated thus:

            Prosecuting a rape is a complicated process, which starts with reporting the         assault to the police. This initial report may be given to a detective for a more    detailed investigation. In some jurisdictions, this report/investigation is            automatically forwarded to the prosecutor, but in others, the police decide             whether to forward the report. The prosecutor then chooses whether to authorize an arrest and press charges—either for the original charge of sexual assault or a          lesser offense (e.g., simple assault, reckless endangerment).

These charges may be         dropped later, but if not, the accused rapist has the choice of pleading guilty to the charged offense, or, if a bargain has been struck, to a lesser offense, or going to   trial. If he is convicted at the trial, the judge may choose either probation or jail as          punishment. With a system this complex, it is to be expected that some cases will         slip through the cracks, and indeed over half of reported rapes are filtered out of       the criminal justice system20

  1. Campbell, 1998 p.358

            Posner however presented a brief illustration of the rape punishments in eleven states in the US. For New York, the maximum punishment for rape is twenty five years, statutory rape attracts seven years and incest attracts four years. In California, maximum rape punishment is eight years, statutory rape, one year and incest thirty years. Illinois punishes rape with fifteen years sentence, statutory rape with seven years and incest with fifteen years. In Massachusetts, rapes attract twenty years sentence, statutory rape, thirty years and incest twenty years. Texas sentences rapist to twenty years imprisonment, statutory rapist to twenty years and ten years for incest.

In Florida, rape, statutory rape and incest attracts thirty, fifteen and five years respectively. For Georgia, it is thirty, thirty and twenty; for Minnesota, it is twenty five, twenty five and ten years; for Pennsylvania, it is twenty, ten and ten years; Nevada, thirty, thirty and ten years and for Ohio, it is ten years for all cases21.  It should be stated that rape attracted capital punishment in some states in recent history, until the Supreme Court ruled that capital punishment was unconstitutional22.

            In conclusion, it is only reasonable to follow the argument of Posner who places the punishment for within the context of the society’s tolerance and attitude towards sexual relations and sexual behaviors. It is contended that the difference in rape punishment between sexually permissive and sexually restrictive societies lies not in the severity with which rape and other sexual crimes are punished, but in the decision as to what sexual conduct to criminalize. Although, it is also possible to infer from this

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  1. Posner, 1992 p.76
  2. Temkin, 2002

argument that the more narrowly a society defines sexual misconduct, the more severely it will tend to punish such conducts, as the decision to narrow the range of forbidden sexual conducts might mean that only the most serious forms of sexual misconducts are penalized. This could be the case with the American society, where personal liberty has come to mean that almost any form of (mis)conduct is condoned.

Bibliography

Campbell, Rebecca (1998). “The Community Response to Rape: Victims’ Experiences   with the Legal, Medical, and Mental Health Systems”. American Journal of          Community Psychology, 26, 3:355-379.

Cowan, Gloria (2000). “Beliefs About the Causes of Four Types of Rape”. Sex Roles, 42,          9/10:807-823.

Herman, N Susan (2007). “Rape (law)”. Microsoft® Encarta® Online Encyclopedia       2007. http://encarta.msn.com/encyclopedia_761564013/Rape_(law).html

Koss, M. P., Gidycz, C., and Wisniewski, N. (1987). “The scope of rape: Incidence and prevalence of sexual aggression and victimization in a national sample of higher            education students”. Journal of Consulting and Clinical Psychology, 55, 162–170.

McFatter, R. M. (1982). “Purposes of punishment: Effects of utilities of criminal            sanctions on perceived appropriateness”. Journal of Applied Psychology, 67, 255–       267.

Montada, L. (1994). Injustice in harm and loss. Social Justice Research, 7, 5–28.

Nadesan, K (2001). “Rape: An Asian Perspective”. Journal of Clinical Medicine, 8, 93- 98.

Orth, Uli (2003). “Punishment Goals of Crime Victims”. Law and Human Behavior, 27,            2: 173-186.

Posner, A. Richard (1992). Sex and Reason. Harvard: Harvard University Press.

Temkin, Jennifer (2002). Rape and the Legal Process. Great Britain: Oxford University Press.

Vidmar, N., and Miller, D. T. (1980). “Socialpsychological processes underlying            attitudes toward legal punishment”. Law and Society Review, 14, 565–602.

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