last updated 31 August 2006

The anti-sexual assault revolution began in the United States during the 1970s: the first rape crisis center was established, medical protocols were established and accepted, and the mental health impact of rape was acknowledged and victim services were developed.  Some of the most progressive changes were seen in the area of criminal justice, as former procedures and laws were questioned and reformed and numerous new laws passed.  These reforms were needed because of chronic underreporting of sexual assault and low conviction rates.  The laws aimed to improve conviction rates and encourage victims to report 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. 

Beginning in the 1970s, the first wave of reforms termed rape as a sexual assault to emphasize the violent nature of the crime, as opposed to it being sexually motivated.  Reforms also attempted to get rid of laws that put the victim on trial instead of the rapist.  The evolution of the definition of sexual assault clearly illustrated this phenomenon.  For example, traditional rape laws required a showing of resistance by the victim.  This ignored the possibility that a victim may not consent but still not resist.  Victims were required to prove why they did not resist in the situation in order for a rape conviction.  Further, it focuses attention on the victim’s behavior instead of the rapist’s.  In 1962, the United States Model Penal Code (MPC) was developed, which defined rape as “A man who has sexual intercourse with a female not his wife is guilty of rape if…he compels her to submit by force or threat of force or threat of imminent death serious bodily injury, extreme pain, or Kidnapping.”  (Kilpatrick citing MPC, Epstein & Langenbahn, 1994, p.7).  However, this definition had many shortcomings: it did not acknowledge rape within marriage, it limited rape to vaginal intercourse, it did not address concerns regarding force and consent, and limited the definition of rape to a woman, among other things.  (For more information, see the Force and Resistance Requirements and Consent and Mens Rea pages of this website.).  Reforms emphasized a careful definition of force, which allowed for a showing of physical force without victim resistance.  Reforms also expanded the definition of rape from physical force to include other kinds of force and coercion.  (See Michigan’s 1975 Criminal Sexual Conduct Statute below).    

In addition, states began passing laws that prevented re-victimizing the victim.  For example, Rape Shield Laws were passed in many states which prevented the victim’s history from being used by the defense.  Thus, a victim’s sexual history could not be used to discredit the victim and argue the victim actually consented.  Evidence that proved the victim was promiscuous, for example, is no longer allowed in many states.  Further, many states began requiring prosecutors, medical professionals, police officers and other officials involved in sexual assault cases to attend training that taught them victim-centered investigation, evidence gathering and prosecution techniques. 

The second wave of reforms called for more extreme changes.  Reformists pushed for strict liability for rape, so the defendant would be guilty if the act was committed regardless of whether or not he made a mistake regarding consent of the victim.  Reforms also pushed to redefine rape as non-consensual sex and eliminate the use if force requirement of traditional rape laws.  This would require a showing of affirmative consent, rather than lack of non-consent or resistance by the victim, which served to shift the focus back to the defendant’s inappropriate behavior.  The defendant now had to show the victim affirmatively consented, instead of the victim having to show she manifested her non-consent or resisted.

The Michigan 1975 Criminal Sexual Conduct Statute has served as a national model for implementing many of these reforms.  Although the Michigan statute still focuses on force instead of affirmative consent, the definition of force precludes a focus on the victim’s non-consent.  The definition of force is very broad and carefully defined so as to include much more than physical force.  The Michigan statute also determines the gravity of sexual assaults based on the amount of force.  Further, the definition of sexual contact is much more than vaginal penetration and includes all forms of forced sexual contact, both clothed and unclothed.  In addition, Michigan also has a rape shield law, evidence collection protocols and other laws to improve sexual assault prosecution.  More recently, Illinois has proved a worthy national model for its Criminal Sexual Assault Statute.  Most notably, the Illinois statute offers consent as a defense to rape charges.  This allows the defendant to prove a rape did not occur by proving the victim consented.  However, the statute stringently defines consent as “freely given agreement,” which is preferable to Michigan’s silence on the definition.  This requires the affirmative showing of consent as opposed to a showing of non-consent or resistance, further shifting the focus back to the defendant’s behavior.  However, the more recent movements toward a definition of rape as any sexual contact that did not accompany an affirmative showing of consent is preferable, as it will more successfully prevent the defendant from using consent as a defense when there really was no mutual, consensual agreement between the parties. 

For more information on the challenges to prosecution and sexual assault law reforms, please visit the sexual assault Criminal Law and Procedure page of this website.  Please click here for a guide to sex laws in the US and other countries.

However, it is estimated that well over a million Americans are raped each year and many of these go unreported.  Further, of the reported cases only a small percentage are tried, of which only 2-5% are convicted.  (Bryden pg. 1211 citing McGregor).  Thus it is clear combating sexual assault through the criminal justice system has not been successful.  In response, the US government passed the Violance Against Women Act of 1994.  VAWA’s most significant provision in the sexual assault context defined sexual violence as a violation of the victim’s civil rights.  This provided victims a cause of action in federal court.  Due to the aforementioned difficulties with the criminal law system, VAWA provided the only viable avenue to prosecute perpetrators.  Furthermore, the civil rights remedy of VAWA helped appropriately frame the issue of sexual assault: “It reframed [violence against women] as a public, societal, and political concern rather than a private matter of interpersonal dynamics or pathology” (Goldscheid pg. 162).  The civil rights remedy connected “violence against women with the longstanding manifestations of sex inequality that perpetuate women's second-class citizenship” (Goldscheid pg. 162).  To utilize the civil rights remedy, victims had to establish two elements: (1) the act was a crime of violence sufficient enough to meet statutory criteria and (2) the crime was gender motivated.  Meeting the second criterion sometimes posed a challenge to victims, because it was difficult to prove the crime was motivated out of animus toward the victim’s gender.  However, this standard of proof was still more reachable than that in criminal court. 

In 2000, the Supreme Court in U.S. v. Morrison overruled this provision of VAWA on federalism grounds.  529 U.S. 598 (2000).  This case was one of a series in which the Supreme Court began limiting the power of Congress to enact laws.  In response, many states began enacting similar legislation, learning from the shortcomings of the federal VAWA and the small body of cases decided when the civil rights provision of VAWA was in effect.  Several proposals have also been made to Congress in an attempt to create similar provisions and avoid violating federalism issues; however, none of these have passed into law.  Under federalism, whatever power not vested in the federal government is left to the state governments, so many states began enacting civil rights remedies in their state legislation.  States hoped to retain the innovative avenue for convicting on sexual assaults.  After Morrison, civil rights remedies to sexual assault are only available through state legislation.

Julie Goldscheid, The Civil Rights Remedy of the 1994 Violence Against Women Act: Struck Down but not Ruled Out,  39 Fam. L.Q. 157 (Spring 2005).