No Penetration-and It's Still Rape

Abstract

At common law, rape was defined as the unlawful carnal knowledge of a woman, without her consent. Carnal knowledge was defined as sexual intercourse. Sexual intercourse implied genital copulation. Genital copulation, in turn, connoted the act of sexual intercourse. Unlawful carnal knowledge required sexual penetration, however slight. Today, in addition to the requirement of carnal knowledge, most rape statutes require force or threat of force against the will and without the consent of the victim. Many people in the criminal law field, particularly authors who have written on the subject of rape law, have asserted that meeting an attacker with force was a male response and that this requirement placed women in the position of being severely injured or killed. In particular, numerous feminists responded to legislators by stating that women are not socialized to meet an attacker with an attack, whereas men are socialized to respond to an attack with force. Men will likely respond to an attack by a woman with extreme rage, usually resulting in very serious injuries or death to the woman. Thus, an attack response, in essence, is a male response.

Numerous law review articles have been written on the requirements of force and against the will of the victim. The articles focus on the force requirement and not the penetration requirement, which is the male understanding of what is necessary when a woman is threatened with the crime of rape.

Even though there are numerous articles stating the force and against the will requirements are male responses to being attacked, the male question has not been addressed with respect to penetration. Penetration is required in addition to the force and against the will requirements. Penetration, too, is a male understood type conduct. The penetration of requirement does not necessarily require that the vagina is completely entered or that the hymen is ruptured. Is entering the vulva or labia sufficient?

This Article explores the penetration requirement and considers the following: (1) whether it is a male or reasonable person understanding of what is so violative of a woman's body that it should be referred to as rape; and (2) what punishment should be imposed. This Article explores problems raised by the "foreplay" issue. Understanding that rape is not sex, in order to deem a violation, one must understand how a violation is characterized. In addition to defining what is violative, the foreplay issue raises questions about characterizations from a male perspective concerning when a male is placed on notice by the female that she either no longer wishes to engage in the activity and that he should stop or that this is unwelcome conduct altogether and that he should stop. The focus has been on the male's notice rather than the desires of the female to stop the conduct. An additional problem is that the crime of rape may be lessened if penetration is deemed insignificant. If penetration, a male prerequisite for the crime of rape, is not used to determine severity of the violation, then there may be some concern that stiff penalties may no longer be imposed, that is, if men comprehend the violation, then it is not a violation. If stiff penalties are not imposed, then there could be a significant increase in rapes.

Part I of this Article discusses how society defines criminal conduct and why society punishes this type of conduct. Part II explores the punishment theory, with regard to rape, from the woman's perspective of pain and pleasure. This Article then compares what is pleasurable for women, and from this perspective, what should be punishment for conduct that is deemed violative from the woman's point of reference of pain and pleasure. Part III addresses some solutions and perhaps, redirection in defining and punishing the crime of rape. Finally, Part IV concludes that the severity of the invasion into the private, protected sphere of a woman's body should be defined in women's terms and punished accordingly.