Last updated October 17, 2018

Evolution of Sexual Assault Criminal Justice Reform

The anti-sexual assault revolution began in the United States during the 1970s.[1] Reformers utilized multiple avenues of change, from building coalitions and creating new support structures for survivors to advocating for new laws and systems reform. The first rape crisis centers were established in the early 1970s by women who distrusted or had poor experiences with law enforcement. In addition, the establishment and standardizations of medical procedures to collect evidence of sexual assault developed during this time period. It was also during the 1970s that psychologists performed the first comprehensive study on rape trauma.  In the area of criminal justice, procedures and laws were questioned and reformed, and numerous new laws passed in an effort to confront chronic underreporting of sexual assault and low conviction rates.  The laws were aimed to improve conviction rates and encourage victims to report assaults by redefining sexual assault, criminalizing marital rape, increasing penalties for sexual assault, eliminating statutes of limitations that prevented prosecution, preventing the defense from investigating the victim’s history, and more. 

The efforts to define rape only a few years prior to the anti-sexual assault movement illustrate the onerous context in which reformers worked and the barriers that victim/survivors faced in accessing justice. In 1962, the American Law Institute (ALI) developed the United States Model Penal Code (MPC), which stated:

A man who has sexual intercourse with a female not his wife is guilty of rape if:

(a)   he compels her to submit by force or threat of force or threat of imminent death serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone

(b)   he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or

(c)   the female is unconscious; or

(d)   the female is less than 10 years old.[2]

In addition, the MPC failed to acknowledge rape within marriage, limited rape to vaginal intercourse, failed to address concerns regarding force and consent, and limited the genders of potential perpetrators and victims, among other things. The purpose of the MPC was to provide a framework for states to use when standardizing their penal codes. Thus, this early version of the MPC advocated for a legal conception of rape that failed to address many concerns and therefore explicitly excluded many survivors’ assaults.[3]

Reformers argued for changes to the burdens of proof required to prove the defendant had committed sexual assault. Traditional rape laws required prosecutors to show that the survivor had resisted the defendant, which discredits abundant evidence showing that many survivors may have numerous reasons to not physically resist against their attacker.[4]  Victims were required to prove why they did not resist in order to secure a rape conviction.  Additionally, it focused attention on the victim’s behavior instead of that of the rapist. In contrast, reformers emphasized a carefully constructed definition of force, allowing prosecutors to demonstrate that a perpetrator used physical force without needing to show victim resistance. The definition of “force” itself was expanded from just physical force to include psychological force, manipulation, and emotional coercion.

States began passing laws in an effort to limit re-victimization such as rape shield laws, which protected victims by significantly limiting the extent to which the defense could use the victim’s sexual history.[5] As a result, a victim’s sexual history could not be used to discredit the victim purely to show the victim was promiscuous.  Michigan passed the first significant rape shield law in 1975, which stated: “Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted….”[6] The U.S. Congress passed a rape shield law in 1978, which later became part of the Federal Rules of Evidence.[7] Additionally, many states began requiring prosecutors, medical professionals, police officers, and other officials involved in sexual assault cases to attend victim-centered trainings on investigations, evidence gathering, and prosecution techniques. 

Reformers pushed for further changes, including the categorization of rape as a strict liability crime:

What [the current definition of rape] means doctrinally is that the man's perceptions of the woman's desires often determine whether she is deemed violated. This might be like other crimes of subjective intent if rape were like other crimes. But with rape, because sexuality defines gender, the only difference between assault and (what is socially considered) noninjury is the meaning of the encounter to the woman. Interpreted this way, the legal problem has been to determine whose view of that meaning constitutes what really happened, as if what happened objectively exists to be objectively determined, thus as if this task of determination is separable from the gender of the participants and the gendered nature of their exchange.[8]

Under strict liability, a defendant can be found guilty if they committed the act, regardless of their mental state or whether or not the defendant mistakenly believed that the victim had consented.  Reformers also advocated for the removal of the use-of-force requirement found in many traditional rape laws.  Such a change would significantly shift the focus back to the defendant’s behavior, and thus require the defense to show affirmative consent by the victim, rather than lack of non-consent or resistance by the victim. In 1992, the New Jersey Supreme Court established the doctrine of affirmative consent in the case State in the Interest of M.T.S.[9]

In addition to the work that states have done to build upon the MPC, the ALI has revisited its original language regarding sexual assault. In a proposed draft issued in 2014, the provision on rape was revised to state that:

An actor is guilty of rape, a felony of the second degree, if he or she knowingly or recklessly:

(a)   uses physical force, physical restraint, or an implied or express threat of physical force, bodily injury, or physical restraint to cause another person to engage in an act of sexual intercourse with anyone; or

(b)   causes another person to engage in an act of sexual intercourse by threatening to inflict bodily injury on someone other than such person or by threatening to commit any other crime of violence; or

(c)   has, or enables another person to have, sexual intercourse with a person who, at the time of such act of sexual intercourse:

(i)     is less than 12 years old;

(ii)    is sleeping, unconscious, or physically unable to express nonconsent to engage in such act of sexual intercourse; or

(iii)   lacks the capacity to express nonconsent to engage in such act of sexual intercourse, because of mental disorder or disability, whether temporary or permanent; or

(iv)  lacks substantial capacity to appraise or control his or her conduct because of drugs, alcohol, or other intoxicating or consciousness altering substances that the actor administered or caused to be administered, without the knowledge of such other person, for the purpose of impairing such other person’s capacity to express non-consent to such act of sexual intercourse.[10]

While this model language has not yet been agreed upon by the ALI, the draft itself appears to acknowledge earlier criticisms. In a stark departure from the original version of the MPC, the 2014 draft eliminates the exclusion for spousal rape. Additionally, the proposed version includes gender neutral language concerning both perpetrators and victims, as well as providing a more comprehensive understanding of force and consent.

Federal Sexual Assault Legislation

It is important to note that while governments focused primarily on criminal justice and legal reform, anti-sexual assault activists continued their movement, including forming working groups and coalition building, outside of formal legal reform.  While criminal justice reform has been a critical part of combating sexual assault in the United States, sexual assault is a multifaceted issue shaped by broader cultural norms, and tackling sexual assault requires a comprehensive multipronged approach. Activists addressed this in part by interrogating the racialized and class-based perceptions surrounding sexual assault.

In an effort to move beyond a criminal justice focused response to sexual assault, the U.S. government passed the Violence Against Women Act of 1994.  Perhaps one of VAWA’s most significant contributions was to define sexual violence as a violation of an individual’s civil rights, providing survivors with an opportunity to bring civil claims in federal court. Providing a civil rights remedy “connect[ed] violence against women with the longstanding manifestations of sex inequality that perpetuate women's second-class citizenship…[and] reframed [violence against women] as a public, societal, and political concern rather than a private matter of interpersonal dynamics or pathology.”[11] To utilize the civil rights remedy under the 1994 Act, victims had to establish that (1) the act was a crime of violence sufficient enough to meet statutory criteria and (2) the crime was gender motivated. However, in 2000, the U.S. Supreme Court in U.S. v. Morrison overruled this provision of VAWA, finding that Congress did not have the authority to implement such a law, in part due to the federal government’s lack of a general police power.[12] The Court did note that while the federal government could not provide a civil rights remedy, states do have a general police power and could provide such a remedy. As of 2018, over a dozen states have implemented civil rights remedies to gender-based harm, including sexual assault.[13]