RAPE LAW

Rape Law

Rape Law

A good start to a discussion of rape law would be to give the legal definition. Rape is the forcible insertion using force or the threat of force, against the consent of the victim. Consent may not be given if the person is under the age of 17.

After studying Estrich, Mackinnon, and Wriggins theories, we can see a few similarities and differences. Wriggens identifies that during slavery, the legal system treated seriously only one racial combination of rape-face involving a Black offender and a white victim. This selective recognition continued long after slavery ended, while Estrich and MacKinnon's critiques focused more on how rape between strangers was treated very seriously, while rape between women who knew the offender wasn't. MacKinnon held that using consent as the legal criterion to draw the line between rape and intercourse would evade the issue of male dominance in heterosexual relations. She like Estrich feels that the rape laws are written to protect the perpetrator rather than the victim. Estrich feels that the problems are embedded in the law itself. Her major problem is the exclusion of "mens rea", or guilty mind. This is needed for all criminal acts except for rape. She feels that the law is incredibly ineffective because it puts the victim on trial rather than the offender. No other crime does this. If in a case the person has consented to sex before, then it will make her less plausible, and then the law may require some sign of force or resistance. Wriggens also felt the law was ineffective, especially during the early 20th century, she noted that "it was doubtful whether the legal system better protected the rights of a Black man accused of raping a white woman than did the mob. Contemporary legal literature used the term "legal lynching" to describe the legal system's treatment of Black men." (Wriggins, 2) Many of the offenders if they were black and the victim was white, received guilty verdicts based on minimal and dubious evidence, along with being given no legal counsel. To Wriggins the rape law is very unjust.

Both Estrich and Wriggens it would seem shared a disdain with the court system. The force requirement which stated that there must be the alleging of force, not just force plus sex, showed that the courts walked a murky line between forceful sex and rape. They said that an overwhelming amount of force plus sex was legal. They validated this by saying that in some cases people like to have rough sex. So the court has developed a calculation to determine rape. Estrich begs the question that if women doesn't physically resist does she have force? According to the courts that if she doesn't physically resist, and the force the offender uses doesn't overcome the victim's resistance than no. Her critique of rape law was that rape doesn't protect women from sex against their will. It only protects women who don't consent to sex ad convincingly prove they didn't along with ...