The Prosecution Of Sexual Assault

“Rape is unique. No other violent crime is so fraught with controversy, so enmeshed in dispute and in the politics of gender and sexuality… And within the domain of rape, the most highly charged area of debate concerns the issue of false allegations. For centuries, it has been asserted and assumed that women “cry rape,” that a large proportion of rape allegations are maliciously concocted for purposes of revenge or other motives.”

Twenty-eight states fall under the category of “true non-consent states”, where the prosecution is not required to show that the offender used “force or threats of force against the victim”, and the defendant can be convicted of a sex offense by showing that the victim did not consent (Decker, 2011). While the majority fall under the first category, nine states can be identified as “contradictory non-consent states”, where the prosecution must prove either “the use of forcible compulsion or a victim’s incapacity to consent”; according to Decker, “requiring force or a lack of capacity to consent” completely counteracts the point of having a non-consent provision (Decker, 2011). The third category, “force states”, includes states that do not have non-consent sex offenses. Although the initial impression is that the majority of states have adopted non-consent standards, it is misleading because the number of states that are true to that definition shrinks as the statutes are examined more concisely (Decker, 2011). With that being said, in addition to defining consent and force, the concept of “rape” has also been clarified and developed.

A Rape in the Early Republic, edited by Randall L. Hall, is the complete text of the John Deskins Trial which was compiled by Alexander Smyth, a prominent congressman and attorney in the Deskins case. This early in American legal history, rape trials were rare and when they occurred, there was little-to-no documentation of the cases. For example, John Deskins was the only rapist to go to jail in 1806 . This recount is significant to the development of legal history because it addresses gender and sexual misconduct cases in the early republic. During this time, the United States legal system was constantly changing to reflect changes and developments in society, making this case pivotal in legal history. In order to remain true to Smyth’s

Rule 412 which is the state of Tennessee’s version of the rape shield law, is designed to protect the victims of rapes and sexual assaults. The protection offered by laws of this nature was to prevent the victims of these heinous assaults from being re-traumatized on the witness stand during cross examination from the alleged perpetrators (Brody & Acker, 2010). Although I am an avid supporter of the right to a fair trial, I feel compelled to be the voice for those who are often subjected to constant criticism from fellow peers, courts, news and now social media. Rule 412, although sound in premise behind its development, lacks concession with the changing times. There are far too many loopholes in our own rape shield law which begs the question if other state’s rape shield laws truly offer the protection that they were designed to employ. Capers (2013, p. 827) reports that the ongoing issue with rape victims today is the fear of having their past history put on trial and not the event that took place. It was because of this, that many rapes go unreported. In the early 70’s, legislatures and courts began to rethink allowing an alleged victim’s past sexual history admissible in court. This prompted questions as to whether that prior information was actually useful in a current case. The second question that arose was to whether the courts were actually trying the victim during the trial rather than the alleged perpetrator. This is how rape shield laws came about. Then,

Sexual assault policy in the United States as it stands is clearly inadequate for protecting the physical wellbeing of men and women from sexual assault. Layering of policy serves a s a Band-Aid on a social wound much too large to be contained and the rise of sexual assault as a public problem reiterates the need for greater legislation and policy to protect everyone from becoming prey to the crime of sexual assault. While eyes focus on the (disproven) rise of violence in the United States, and turn to gun control, other violent crimes are forgotten. Sexual Assault has seen several cases of policy failure that actors have tried to salvage through the act of policy layering and have not significantly resolved the problem.

This was previously apart of the what was referred to as the Old Criminal Code. This code held the definition of rape, but just needed to be re-enacts Title 18 of the Idaho Code. This was reintroduced because of a case that was sprung among the courts. This case involved two adults by the names of Claudette Hall and Charles Rice, who were charged with and convicted of committing sexual acts with a minor child under the age of sixteen years, which violated in Old Criminal Code. The offense was supposedly committed on January 31, 1970, at the defendant’s home in Boise. Both adults were guilty and were sentenced a term of up to ten years in prison (Legislature I. , 1972).

“They are all innocent until proven guilty. But not me. I am a liar until I am proven honest.” Louise O’Neill. Rape has become a widely recognized issue in recent decades, however, an estimated 63 percent of assaults are never reported to the police. Differences in 1930’s issues compared to present day include: false rape accusations centered around racial prejudice, but now skirt the main issue of rape itself; victims still face many obstacles but now feel more supported; development of rape kits helped solve many suits but make survivors wearisome; and today’s trials are not based on accusations, but are based on evidence.

The creation of Tennessee’s rape shield law was enacted as a response to the outdated and sexist views that women that engaged in sexual activity in their past were more than likely to have consented to have sex with an accused defendant in a rape case (Rape and Sexual Assault, 2010). Subsequently, as a result of these beliefs, many women fail to report their rapes for fear of being judged prejudicially based on their reputation, previous behaviors, thus resulting in their re-victimization in court. Additionally, the protections provided under Tennessee’s Rape Shield Law acknowledged that parts of the victim’s sexual history may be irrelevant to their current case; therefore rape shield laws limited the use of a victim’s prior sexual history

Sexual Assault has always been a topic in need of being addressed, yet it has not always been. In recent years, sexual assault has not necessarily become more prevalent, but more addressed by those who can make a difference in its frequency. Sexual assault began with a vague definition that placed very limited parameters on the actions of perpetrators. It was only considered rape when physical violence ensued, and only when said physical violence was proven in the court of law with an abundance of evidence. This lack of conviction results in a low percentage of victims even coming forward to penalize their aggressor. Of all individuals who come forward with sexual assault cases, approximately ten percent are vindicated by the accused getting convicted. (Alderden & Ullman). Is there any circumstance where someone found guilty of rape should be acquitted without penalty? During these times of consent ambiguity, most sexual assault cases were left to the jurisdiction of individual courts-- some of which disregarded victim testimony and made personal classifications of both rape and sexual assault. Sexual assault was frequently determined by the opinions and experiences of one individual due to the ambiguity of “consent”. The criminals assaulting others view their victims as “conquests”, they do not see the need for consent (Lisak & Miller). In most basic verbiage, consent implies the inclusion of yes. And more than likely, consent is requested. The American legal

Rape has been an ongoing issue within society for centuries. In early times, men raped women for reproductive purposes. Today, it is still believed

The definition of rape has changed since 1927, with the new nationwide definition from the FBI’s Uniform Crime Report (UCR), the Office of the Attorney General states that, “the penetration, no matter how slight, of the vagina or anus with body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” The definition or rape has not changed since 1927. In 2012, under this new definition, it gives a larger definition as to what facilitates the nature of rape, this includes men as well as women; notwithstanding the victims age of being unable to consent, including the victim’s mental capacity, or being in an incapacitated state due to ingestion of drugs or alcohol (U.S. Department of Justice, 2014). According, to the 2015, Criminal Victimization Report, reports that the rate of

A further complicating question is whether the criminal law's usual requirement of mens rea (or “guilty mind”) should apply to rape and, if so, how that requirement should be interpreted. In the most general terms, a mens rea requirement means that the prosecution must show not only that nonconsensual sex occurred, but also that the man was in a certain state of mind with regard to the woman's lack of consent. Just what that state of mind is—what counts as mens rea in cases of rape—is a matter of some dispute (Burgess-Jackson 1996, 137–161).

-The earliest laws against rape were actually property protection laws. The crime was not considered to be against the woman, but against her father or husband, the people responsible for her sexual conduct.

This section has demonstrated that from a judicial and legal perspective, consent is intrinsic to the crime of rape. As such, rape is deemed a statutorily and socially situated action. On the contrary, this chapter will now briefly direct attention to the evolutionary biological perspective, which alternatively posits rape as a natural phenomenon associated with evolution.

There are four major eras that deal with sex offender laws. They are the Progressive Era from the 1800 to1935, the Sexual Psychopath Era which was from the 1930 to 1955, the Liberal Era occurred from the 1950’s to 1980, and finally the Containment Era which was from the 1980’s to the present (Logue, 2012). Logue stated that in the Progressive Era sexual abuse of children became the focus as it had shown to be the leading form of sexual crimes and as a result there were some of the first laws passed against it in 1894 (2012). In 1896 females became the leading victims of these crimes and as a result it was proved that victims of sexual violence experience some sort of trauma (Logue, 2012). From 1908 to 1916 there was a spike in sexual crimes and serial killing which led to the creation of the Bureau of Investigation, which is now known as the Federal Bureau of Investigation or the “FBI” for short. In 2012 Logue stated that series of movements that helped to create the FBI were called the Mann Act, they protested against involuntary prostitution and white slavery. Also from 1925 the death penalty was allowed to given as a sentence for rape charges (Logue,