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)
I can’t thank you enough. Education is powerful for patients trying to unpack their guilt after rape and assault. Yes, in 2023 I hear on a regular basis some version of, ”It is my fault.” This will be so powerful in their recovery.
Great explanations as always Terri. Here’s another typo that nobody has mentioned yet. You said:
“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.”
I was wondering at first where the 3 year old came from. I had to read it a few times before I realized it must be a typo.
Just a quick note: You inadvertently typed “voluntary” rather than “involuntary” in describing what an incel is. Great post, as usual.
I fixed that more than 15 hours ago and removed the cache. Can you tell me which browser you are using? Did you open a particular link? Also, when did you open it?
In 1968 or 1969, I was working as a copy editor for a newspaper. I was the first female copy editor there. One day when there was no work for us at the moment, I was reading a book called “Voices of Women’s Liberation.” A colleague in his late 40s or 50s started needling me: “Is that a good book? Is it well-written?” After several minutes of this, I said, “Art, you don’t have the guts to read this book.” That was clearly too much for him. I don’t think he replied, but he started writing headlines that trivialized feminism. There was an article, something about women enjoying cuddling almost as much as they enjoyed sex. He wrote a headline: “Women’s Lib, No; They Want Loving.” Some female reporters objected as much as I did, but our response didn’t get delivered in the way intended. It probably would have been ignored by the managing editor anyway.
Then, after two and a half years of marriage, I resumed my original last name by common-law name change. I put up a little sign for the other newsroom people. I was told that one of the sports editors said if his wife did that, he’d tell her she should just get out.
This was in 1971. Nobody could wrap their heads around the concept. When I told our insurance agent that I was changing my name, he said, “You’re getting a divorce?” “No, we’re not getting a divorce; I’m just changing my name.” “You’re getting a divorce?”
So I was ahead of my time in that regard.
Art and I eventually decided mostly to ignore the whole thing. But I still remember his need to devalue the book, and his anger with my sharp reply.
I have a question/observation about focus on rape victims alleging consent by lack of overt “resistance” aka T.’s defense haranguing E. Jean Carroll about whether or not she screamed in response to T. sexually assaulting her. I’m not certain if prosecutions will defend victims of rape citing the varied neurologically based reactions people experience when undergoing traumatic experiences – neurologically mediated responses to stress are documentable/scientifically based. A simplistic description of physiologic mechanisms a person may exhibit in response to fear and/or traumatic experiences are broadly fight, flight-run, freeze, or fawn response. Any of these reactions are reasonably predictable nervous system mediated responses to an assault/attack/fear. An expert witness would likely be needed to explain the neurobiological premise to a jury. I’m certain most if not all individuals in a jury would readily relate to varied stress/fear responses. Particularly “freeze” in response to feeling trapped or surprised/shocked.
Imagine legal evidence and courtroom systems complicated in ways I’m not aware.
However, putting in my 2 cents in support of E. Jean Carroll’s testimony and for a more trauma informed society.
As a 67 yo woman who considers herself a feminist, and to whom feminism means equal rights in all aspects of life, I’m a bit perplexed–are some of the sources you’ve referenced here ( & you, yourself?) asserting that all that should be required by law (& culturally) for a man to be held accountable for a rape, is a woman’s report that she’s been raped by him?
A woman’s word is evidence, and like all evidence, is weighed for probative value.
Teri, long ago I learned abt all those horrendous laws that put the ones on the woman/victim and I was outraged. I am equally out-raged at Graham’s comment. This is where I got lost, in terms of what justice is being proposed, “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.
Sorry to be so slow on the uptake…I looked up “probative value” /found several definitions, but am feeling on-verge-of-but-not-completely-sure-I’m- the-wiser…unless (maybe?), you are saying, like all legal crime cases, it is taken together w/the other evidence provided by both parties?
My questions are not adversarial–just trying to not misunderstand.Thank you!
You’re the second person to ask this so I will add it to the blog post.
Thanks very much, Teri–I greatly appreciate your commitment to educate lay-peeps–it is remarkable. Your blogs are where I know the wheat is separated from the chaff❣️
Elizabeth, maybe taking this out of the context of rape is useful. Imagine a man is mugged late at night in a quiet alley, but with enough light to see his attacker. Would you have any problem with that man’s word being all that is required by law (& culturally) for the mugger to be held accountable for armed robbery?
As always appreciate the info, updates and interpretation. Also warnings – despite awareness of patriarchal history that elephant on the chest feeling remains reading about T. and rape culture. The threat of violence a tool used by entitled power and war mongers everywhere.
Staying vigilant and engaged required to support resistance.
JJ can be counted upon to do his job! Double duty refreshing us with such beguiling innocence.
Oooofff. After reading all the comments about, and history of, rape, I needed a JJ chaser more than ever! As I winced my way through your words, I kept thinking, “I really hope we get a JJ moment to put a smile back on our faces!” Thank you for the healing photo and for all the information, hard as it was for this 73 year old woman to read. I know many people are enraged that these investigations are taking so long; I have fallen into that trap often myself. But we absolutely HAVE to get this right. Seeing what the newest leads may mean, I feel encouraged. Thank you so much for keeping us calm and sane as the clocks keep ticking. And thank you, JJ, for doing your civic duty while simultaneously keeping Teri’s home safe. Multitasking at its very best!
Thank you, Teri. I made it through the history of rape laws because there was Susan Brownmiller at the end. Thank you. Her thinking meant a great deal to my recovery.
Thank you, this post was helpful and so interesting. I’ve never read anything that put together so well the views behind why rape tolerance is still accepted in this day and age. I also appreciate learning what Incel means!
I’d love to hear your opinion on why women accept promote rape culture supporting viewpoints as well.
My tl;dr personal opinion regarding rape culture is that women were trained to support the patriarchy, especially women from affluent & higher hierarchal families. If women since antiquity were had no acceptable alternatives, no other means of survival, especially if others shunned them (or worse) for failing to follow the rules, women would toe the line. People tend to take social cues from those considered better or more powerful than them.
You also give me lots of food for thought so I put some of those thoughts down today. Sorry for the lengthy reply!!
My long version opinion of rape culture AND of the difficulties in holding elites accountable, is due to living within a patriarchal socioeconomic hierarchy. We likely live within this hierarchy as either a direct result of centuries of religious teachings and / or religious teachings which were adjusted to support the elites (the people who hold the political power) of the time.
Look at women’s roles in religions in antiquity. Where were they? Where were their voices?
Religion is definitely part of our social framework and frameworks are something designed to support things and so would not be very flexible. But despite that, there is evidence of religions altering special days, who & how it worships, who its enemies are or aren’t, who does & doesn’t deserve respect, and even changing core significant beliefs, etc. to accommodate and or unite different groups to keep a religion (and its leadership) alive.
Furthermore, wouldn’t some religious leaders also do so to please the elites in order to ensure a religion survives (and thrives) and possibly the religious leader too?
Religious leaders have been known to accommodate wealthy / well-respected members and their families. Some houses of worship have special seating arrangements for them, particularly those who donate large sums. Wouldn’t religious leaders show at least some deference towards them too and perhaps cultivate their respect? Doing so might make it easier for them in some ways as approval and respect from elites might solidly their own power and authority and increase the number of worshippers (and donations).
If religious leaders show deference and respect to elites and other special people, wouldn’t the other members assume they too should defer to and perhaps emulate the elites / special people?
What if the elites / special people were men who would expected women to be a certain way? What if they did not like people of color? What if they did not like gender fluid people? What if they had certain expectations of how lesser people should live and treat their betters? Wouldn’t “lesser” members of the religion take at least some of their social cues from them? What if the religious leaders didn’t call out the elite’s / special member’s biases as wrong? Wouldn’t that be considered giving approval?
For a long time, only wealthy elites and religious leaders were educated. So people depended on their religious leaders for guidance and explanations for all manner of things such as explaining why people die, natural phenomena, natural disasters, etc. How many people would question those who seem to have all the answers? Imagine the reactions of the elites & religious leaders.
As populations & societies grew, law and justice systems became larger and more sophisticated. They too took many of their cues from religions and elites such as what is a crime and how is it punished. Today we often see plenty of evidence of law & justice systems deferring to elites and even even helping protect them from accountability.
The elite’s support system also grew. We have the top of the hierarchy (in Western regions) being wealthy, white men who inherited their wealth & power followed closely be wealthy white men who acquired their wealth & power by other means. Their support system includes tools which help maintain the hierarchy. The following represents some of them:
•People in lower hierarchal tiers support the system because no one wants less wealth & social status, so they don’t rock the boat.
•Education – Ivy League Universities/Colleges, Prep Schools, Public school curriculums. Who gets in them and what is taught all affect who can & cannot increase their wealth and elevate their social status.
•Real Estate companies – determine who lives where.
•Religion – the relationship between elites & religious leaders sets an example.
•Politicians – Many may come from upper level hierarchies and may be subject to peer pressure. Even if they come from lower tiers, they are still subject to pressures / temptations from those higher up in hierarchy. They also choose some of who gets heard and some the issues they use to get elected.
•Government & Justice System members – determine the laws, punishments of law breakers and the fairness in how the laws are implemented and enforced.
•Financial institutions/systems and their rules
•Media: What news and how it is disseminated to others can affect people’s decisions on so many levels.
Religions and elites have never appreciated anyone challenging their authority or standing. Wars have been started for less.
Science, for example, has long been a thorn in religion’s side. Elites who could afford to put money and resources into science could easily squelch studies or hide the results as a courtesy to religious leaders (or used the results as leverage over them).
Now we have mass produced books & newspapers (and public libraries which share them freely), radio, television, and social media which unite & divide people, educate & misinform, lead people to and from religion, put elites on pedestals & break down those pedestals, show us new ways to make society and also scare us back into the arms of tradition.
It seems to me that if those at the top of the hierarchy have to continually use lies, cheats, and force rather than merit to keep their position, they are no only unworthy of their position but will eventually fail.
A properly designed and governed Democracy which balances its power, wealth, justice evenly & fairly and amongst ALL of its people (or at least reasonably evenly & fairly according to the least of its people), can stand the test of time and the challenges which come along.
> In other words, they’re looking at the coverup, which helps prove the crime and shows consciousness of guilt.
It reminds me of this 3 second clip:
https://youtu.be/R2QHAxtDLOo?t=46
Unclear that any more “help” is required.
Bruce, I must be doing something wrong! Whenever I see a link, such as yours, in Angry’s or Teri’s posts or AMAs, I can NEVER get them to open. I copy and paste them but always get an error message. Is there some magic you can impart? I feel like I am missing some interesting stuff. Thanks in advance for any help you can offer.
Thank you, Teri. After reading your description of the attitudes on rape throughout history, I am struck by how far we have come. Yes, we have a long way to go but we have indeed made progress.
I very much appreciate your posts/blogs. I am an immigrant that had hoped this country was different from the one I left. Very disappointed. So disheartened to read why society still doesn’t believe women when they come forward with their stories of rape. I can’t understand women who still support these men who treat them worst than they would treat their dogs.
Thank you for breaking up all the litigation happening in Trump’s world.
Great synopsis of all that is transpiring.
Men (and some women) definitely need a refresher on rape law. Thanks, Teri!
Thank you so much for posting this history of patriarchy as it applies to rape. It certainly echoes the attitudes I was raised with regarding men and women (with women having to guard their purity against the male “natural urges.”)
I have a question about the Georgia case. Kemp just signed a law that creates a panel which will have the power to remove DAs. What will this do to the Georgia FG case?
I wrote a post called Rogue Prosecutors. See that post.
Teri, thank you for all you do to keep us informed and aware. The first part of this post (which you have written before) is just so hard to read and remember. I’m old enough to know how things “used to be” and aware enough to know how much things haven’t changed. It’s infuriating and disheartening. Thank you for your clarity.
I almost made it through Mastadon sign up simply because your post Re: immunity was so enlightening. I’ll try again without wine. Cheers to JJ!
I think some folks have made the signup easier. I had a good experience on Mstdn.social
Thanks for another insightful post. What is so frustrating is fighting for women’s rights for reproductive freedom and the rest in 1970’s, and now having to do it again. Well, I guess the fight is never over.
Maybe you’ve addressed this before, but what always bothers me is the women who fight against abortion rights and other women’s rights. Could you propose a theory on the reasons why? I understand the religious argument (I think), but you are always so good at uncovering the inconvenient truths behind people’s actions.
I’m always amazed at how little I know of US history when you teach us about the legal and power context of rape, and in earlier postings about the history of race and inequality, of how things used to be. And I consider myself educated and reasonably well read. How much less so, for the general public, who falls for the propaganda put out by those afraid of losing their position.
Even though, as a man I was evidently unconscious while woman fought and gained ground during my lifetime, it thrills me to read how far women have come, and to understand what’s at stake when the patriarchy tries to fight back. You provide a unique education that so many others need to be exposed to. I truly never heard of the historical knowledge you presented today.
As for the incels, I’m only slightly and badly joking that AI powered sex robots are certainly on the way. I had a friend who argued that every advance in modern technology, from home VCRs to the world wide web, was driven by pornography. There is so much money to be made. Such a sad subject, but in some sense this is one direction the incel movement is heading toward. Just what we need, more alienation and spiritually dead men.
I feel really smart after I read your analyses. I always get mental happy feet when I see your email in my inbox. Thanks for all your hard work. Jim.
Hi Teri,
Excellent write-up, as always, but you have a couple of major typos. First, Freudian slip? You wrote “Incels (voluntary celibates) blame women and society for their lack of romantic success.” That should be *involuntary* celibates, of course.
Also, you wrote “Obviously many of the people who want abortion criminalized and want the return of no-fault divorce…” We have no-fault divorce; I assume you mean “the *repeal* of no-fault”? Sending you extra coffee. ☕
Apologies for sending this both here and on Mastodon, but I wanted to make sure you see this so you can make the corrections.
Teri,
I want to thank you so much for your excellent synopsis of Patriarchy, Trump’s personal perceived patriarchal entitlement, and criminal evolution of the crime rape. E Jean’s heroism is amazing.
Ms. Kanefield:
I thoroughly appreciate your blogs. I have SO many comments to make but I’d be preaching to the choir. Thank you for lending your voice to such important topics.
I haven’t seen your posts since I left Twitter; was delighted to stumble upon you at Post. I’ve always admired your clear writing. The JJ photos are just frosting on the cake. I’ll definitely subscribe to your blog so I can keep abreast of your slant on things. One little correction…I think you meant to define incel in this post as involuntarily celibacy.
This is SO WEIRD because I fixed that hours ago and people keep seeing the error. Not sure why.
I think it has to do with using the link in your Saturday night email. That’s what I used and I see it says “voluntary”.
Hope this helps.
Thanks for telling me! Now I understand. GRRRR. well there is no way to fix that now.
Excellent summary – and brought back some interesting memories of the federal workplace in the 70s, 80s, 90s, 10s. Nuff said. Again, excellent overview… even having done a lot of civil rights work in the Forest Service, this piece helps provide language for explaining what the heck is going on. I can’t express how proud I am of the #MeToo movement in making improvements. (And heck yeah, we aren’t out of the woods so to speak at all. But language, allyship, and mentoring matter, as does standing up and taking the beating sometimes. With no criticism at all if you can’t, not from me anyway.)
There are a couple of typos in today’s post that invert and confuse your intended meaning:
“Incels (INVOLUNTARY celibates) blame women and society for their lack of romantic success. Incels are known for their deep-seated pessimism and profound sense of grievance against women.”
And
“Obviously many of the people who want abortion criminalized and want the REPEAL of no-fault divorce are totally cool with a powerful man grabbing women.”
I thought I fixed those! Maybe I forgot to hit “update”
“involuntarily celibate” is the meaning of ‘incel’ I love your posts but this error changes the context of your observation. Please keep putting out these truths.
I agree that juicy stuff happened in the Fake Electors case in Georgia with all the ethical violations, but you linked that one directly under the top the heading about the stolen documents case, which also had a lot of juicy stuff happening. As you noted, one wouldn’t tamper with surveillance cameras unless they’re up to no good.
The history of how rape was characterized still sickens me. That we have a society where so many still believe that more than half the population is merely there as playthings for the minority is barbaric.
One nit: “Incels (voluntary celibates) blame women and society for their lack of romantic success. Incels are known for their deep-seated pessimism and profound sense of grievance against women.”
That should be involuntary celibates, not voluntary, though if more men were celibate voluntarily we’d have far fewer issues in society.
I thought I fixed that one! Will double check.
It looks right now, thanks! I guess I must have refreshed right before the change took.
No worries, Teri. We all know what an incel is. You’re busy enough. Tomorrow’s another day.
R