Beyond Akin: Current U.S. Law Is Failing Sexual Assault Victims

The failed Missouri candidate isn't the only one with a twisted conception of rape. Our laws about force and consent need a major revamp.

Sarah Conard/Reuters

Election day post-mortems have included, briefly, how Republicans blew U.S. Senate races they once seemed to have in the bag. Prominently, there was Missouri, where Representative Todd Akin imploded against a weak incumbent, Democrat Claire McCaskill, via those comments on "legitimate rape" that drew instant national scorn.

But in "'No' Still Means 'Yes,'" a law review article on the inadequacy of rape laws, two Chicago lawyers essentially suggest how we'd be smart to again place a spotlight on Akin's remarks. When they were made, few of us stopped to think how they also reveal glaring weaknesses in the way the legal system continues to treat rape.

According to Peter Baroni and John Decker, the phrase "forcible rape," which Akin claimed he ought to have used after his initial remarks became controversial, is just as wayward as his original phrase. Both the notion of "legitimate" rape and that of "forcible" rape fail to recognize that force shouldn't be required to conclude that a rape takes place. But in too many courts across the land, it is.

The article has at least quickly caught the attention of Richard Posner, the prolific federal appeals court judge and academic and the most influential jurist not on the Supreme Court. He cites its briefly (without giving his take on it) in ruling that a Navy veteran can't sue the government over sexual abuse by a Veterans Affairs therapist who treated him for mental illness.

The Chicago lawyers, one of whom is a Republican lawyer-lobbyist, argue that the frequent debate about rape "reflects the failure of current rape and sexual assault laws across the United States to prohibit non-consensual sexual acts. It should be understood that a 'real' rape is any sexual conduct committed without the consent of the victim, without regard to the use of force."

Akin's incendiary comments should be looked at not just for the dim-witted politics they constituted, but also as an indicator of a far larger problem in how the American legal system generally views the topic.

Their overview of changing laws over two decades does underscores a movement to replace antiquated rape and sexual assault laws, including statutes that said a victim must actively resist in order to claim rape; that victim testimony be corroborated; and that the rapist threaten the use of physical force. But it's a movement that generally failed, say Baroni and Decker, for three reasons.

First, changes to rape and sexual assault laws by legislatures did not result in definitions of these crimes that are really and truly based in "non-consent." That's because in many states, the definition of rape continued to be tied to a requirement of force.

Second, law enforcement has generally failed to prosecute the truly non-consent offenses that take place.

Finally, judges continue to adhere to musty common-law notions, generally placing the burden on the victim to object to unwanted advances. That often results in the rejection of a victim's claims of rape or assault.

The bottom line, say the authors, is that "sex crime laws across the country continue to require evidence that the perpetrator used force or threats to obtain sex from the victim, unless some other circumstances exists, such as evidence that the victim was a minor or had a mental defect."

For sure, a large number of new laws criminalize mental health therapists, prison guards, clergymen, teachers, probation officers or parole officers taking sexual advantage of a position of authority. But those laws, the authors note, often tend to bar sexual liaison with minors or inmates specifically. The free, adult population needs similar protection from the abuse of positions of trust and power.

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James Warren is the Chicago editor of The Daily Beast and an MSNBC analyst. He is the former managing editor of the Chicago Tribune.

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