Throughout most of our history, rape was a property crime. An unmarried girl was her father’s property. A married woman was her husband’s property. If a virgin was raped, the property damage was to her father. If she was married, the damage was to her husband.
If she wasn’t a virgin and wasn’t married, there was no crime (because the property was already damaged). A man couldn’t rape his wife (his own property) and rape of enslaved women wasn’t a crime.
Attempted rape wasn’t a crime because there was no property damage
Rape laws were generally intended to protect (white) men from false accusations. They were not intended to protect a woman from attack.
Laws tend to reflect cultural values or norms. Rape laws in 19th century America reflected what scholars have called the patriarchy: A social order with white men on top and Black women on the bottom.
The social hierarchy determined how rape was treated. Black men were lynched if accused by a white woman. White men were protected from rape prosecutions because, in 19th-century America and earlier, women were not considered competent to testify in court. Therefore if the only witness to the crime was the victim, and the victim was a woman, there was no admissible evidence.
There are still people who believe a woman’s word in a rape case cannot, by itself, be sufficient evidence. This was what Ann Coulter was getting at during the Kavanaugh hearings when she said rape is “the only crime where an accusation alone is considered proof.” In fact, crimes are often proven entirely through eyewitness testimony. What Coulter meant was that a woman’s word against a man’s in a patriarchial culture should not be sufficient.
In rape trials, a woman’s word is the same as any eyewitness testimony: It is evidence. Whether it is sufficient evidence is up to the jury. The jury’s task is to weigh the evidence, including testimony, and decide who to believe. The technical word for this is “probative value.” Two eyewitnesses to an event (say, a fender bender) may have different impressions of what happened and offer conflict testimony. When testimony conflicts (two witnesses say different things) it is up to the jury to decide who to believe. In the past, a woman was not competent to testify, which meant that nothing she said could count as evidence. Illustration: If three people witness an incident, two adults and 2 year old. A court would not put the three-year-old on the stand and ask the 2 year old what happened because the two year old would not be considered competent to testify in court. This was the attitude toward women in the 19th century: Women, like infants, were “people” but they were too emotional (or whatever) to be competent to testify in court.
Similarly, when Lindsay Graham was asked, “Is there anything Dr. Ford could say that would persuade you to vote against Kavanaugh?” he responded by saying, “I want to listen to her, but I’m being honest with you …. What do you expect me to do? Go ahead and ruin this guy’s life based on an accusation?”
Rape was seen as the natural result of “human” nature: Men were “natural” aggressors (“boys will be boys”). That was what Rep. Steve King was getting at during the Kavanaugh hearings when he said, “No man will ever qualify for the Supreme Court” if being accused of sexual assault is the “new standard.”
Because rape was seen as “human nature,” a woman was responsible for guarding the goods. If she was raped, it meant she failed. It was her fault. Her behavior was therefore taken into account: How was she dressed? Was she out alone? Did she scream or call for help?
This is from Deborah Tuerkheimer, a law professor at Northwestern University and the author of “Credible: Why We Doubt Accusers And Protect Abusers”:
Corey Rayburn Yung, a law professor at the University of Kansas, pointed out that the requirement that the victim of a crime actively resist exists nowhere else in criminal law. (Victims of theft never have to prove that they “earnestly” resisted. You’re not allowed to take someone’s stuff, whether or not they earnestly resist.)
Moreover, active resistance (even if the woman can manage it) can often increase the injuries a woman suffers or can even get her killed.
The idea was that if a woman didn’t earnestly resist, she was tacitly giving consent. This is why Trump’s lawyer kept asking the victims whether they screamed. To the chauvinistic mind, no scream implies no resistance which implies consent. An old quip went like this: “Rape is when the woman changes her mind afterward.”
The “earnest resistance” requirement meant that a man was legally entitled to aggressively pursue sex until the woman exhibited “earnest” resistance. Saying “no” wasn’t enough, which brings me to another chauvinistic quip, that went like this: “What is the difference between a diplomat and a lady? When a diplomat says yes, he means maybe. When he says maybe, he means no. When a lady says no she means maybe. When she says maybe she means yes.”
If you have never heard these quips before, I apologize for ruining your day.
As late as the 1970s, a defendant in a rape trial could present evidence that the woman had, in the past, engaged in sexual behavior. This was called the “sexual history” defense. The victim had to recount her sexual history, which could by itself be enough to prevent women from coming forward. The “sexual history” defense was based on a few assumptions:
- If she was unchaste or immoral, her word couldn’t be trusted.
- She previously failed to guard the goods.
- The goods were already “damaged.”
By the 1970s and 1980s—under pressure from women’s activists—states enacted what are called “Rape Shield Laws.” These laws protected victims and prevented their sexual history from being used as a defense.
From Corey Rayburn Yung: The “‘unchaste victim” exception in statutory rape cases (meaning the victim was too young to give consent) survived into the 90s in some states. Mississippi was the last state to remove it in 1998.
Sexual assault (sexual touching without the act completed) is a relatively new crime. Sexual harassment wasn’t taken seriously until the 1980s. The assumptions were:
- If a woman received advances, she wanted them.
- She would be flattered by the attention.
Back when women had no way to earn a living because they were kept out of the professions, and most, therefore, had to be married, and rape was considered was a woman’s fault, incel wasn’t a thing. (If you have never heard of Incels, I apologize for again ruining your day).
To put it bluntly, in the old days, even repulsive men could get a woman. Now repulsive men no longer have it so good. No surprise, some of them pine for the good old days.
🎶Guys like us, we had it made. . . Those were the days . . .🎶
Boy, the way Glenn Miller played,
Songs that made the hit parade,
Guys like us we had it made,
Those were the days.
And you know where you were then,
Girls were girls and men were men.
Mister, we could use a man like Herbert Hoover again,
Didn’t need no welfare states.
Everybody pulled his weight.
Gee, our old Lasalle ran great,
Those were the days
Then along came people like Susan Brownmiller.
Brownmiller sent shockwaves in 1975 when, in Against Our Will, she argued that rape was not a natural result of human nature: it was a means of exerting patriarchal power. She painstakingly traced the law, history, politics, and sociology of rape over the centuries and across cultures to reveal how destructive attitudes affected the way women live. Her book was among the many groundbreaking books that fueled women’s demands for equality.
The Access Hollywood Tape Was An Assertion that Powerful Men Should Have Free Access to the Bodies of Women
This is from the Access Hollywood Tape:
Trump: “Grab them by the p–. You can do anything.”
When asked by E. Jean Carroll’s attorney about his “Access Hollywood” line that stars can grab women by the “p–,” Trump said: “Historically, that’s true, with stars.”
Yes, that was how it used to be. Trump still imagines he lives in that world and Make America Great Again means bringing everyone back there with him.
E. Jean Carroll presented the witness testimony of Natasha Stoynoff, a former People magazine reporter. Storynoff testified that in 2005, she went to Mar-a-Lago to interview the then-real estate mogul and his wife Melania Trump for People magazine. Trump offered to show her a painting hanging in one of the rooms. After she entered with him, he shut the door. “I turn around and he’s right here,” she testified, “and he grabs my shoulders and pushes me against this wall and starts kissing me.”
Minutes later, Trump was interrupted by a butler who entered the room to tell them that Melania was ready. Stoynoff said Trump then told her, “You know, we are going to have an affair” and then: “Don’t forget what Marla said: Best sex she ever had.”
The scene: Trump is the king of the castle–the rich and powerful ruler of his own personal kingdom. That means he can grab whatever he wants to grab, making him (in his view) the envy of all other men. If Trump, as a star, can grab the most beautiful women, men lower on the hierarchy might envy him, but in such a world, they can also grab any women below them in the hierarchy. No man has to be forced into involuntary celibacy.
And now, you need some dog content
Here is JJ setting the example of civic engagement and personal responsibility:
(NO, he did not commit doggie voter fraud. He voted in the special election to keep squirrels, pigeons, skateboarders, and delivery trucks out of our neighborhood)