When U.S. Senate candidate Todd Akin of Missouri used the phrase “legitimate rape” to defend his opposition to abortion in cases of rape and incest, President Obama fired back, saying that we should not “be parsing and qualifying and slicing” types of rape. Yet for most of our history, that is precisely what Americans have been doing. Our legal definition of rape has evolved over centuries, and clearly, we’re not done fighting over it.
Who ‘owns’ a woman’s body?
In the 19th century, state laws around the country defined rape as the carnal knowledge of a woman when achieved by force by a man other than her husband. According to a principle known as coverture, a husband had authority over his wife’s person and property. Therefore, women could not withhold sex from their husbands. Similarly, enslaved women could not refuse sex with their masters or testify against them in court. After emancipation, the presumption that African American women had no say over what happened to their bodies persisted. For generations afterward, many men had impunity in raping black women.
Even white women had difficulty making the case that they had been raped. Evidence of physical injuries to prove resistance and corroborative testimony that a woman had cried out would improve her believability in court. But all-male juries and members of the judiciary often assumed that once a woman had consented to sex, any subsequent sexual activity was consensual. An unwanted sexual encounter could usually be classified as rape only if the woman was white and chaste, the perpetrator was black, and the act was violent.
Redefining rape
Advocates for women’s rights and racial justice started questioning these views in the mid-19th century, and their efforts helped reshape the meaning of rape in three important ways. First, legal remedies such as laws on criminal seduction and statutory rape made it easier to prosecute coercive but nonviolent sexual relations with acquaintances. African American activists insisted that black women could be victims of rape and that white men should be held accountable for assault. And feminists renamed a range of non-consensual acts, particularly with acquaintances and husbands, as rape.
The earliest challenges emerged in the 1840s, just as the women’s rights movement was coalescing. Reformers tried to make it easier to prosecute white men who had been neither strangers nor violent. They sought criminal penalties to discourage what they called “the licentious man” from coercing, persuading or pressuring a young woman to have sex, especially through a false promise of marriage. By 1900, their lobbying campaigns had succeeded in most states, making seduction by an acquaintance, regardless of consent or force, a lesser crime than rape but still punishable by fines and imprisonment.
A subsequent national campaign, endorsed by temperance and suffrage advocates, called for increasing the age at which a young woman could legally consent to sex beyond the common-law standard of 10. At a time when women could not vote, they gathered tens of thousands of signatures on petitions and lobbied male officials. By 1900, they had convinced legislators in 32 states — primarily in the North and the Midwest — to increase the age of consent to between 14 and 18. These statutory rape laws did not require evidence of force or resistance for a conviction, but the penalties were less severe.
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