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92 Colum. L. Rev. 1780 (1992)
Beyond Rape: An Essay on the Difference between the Presence of Force and the Absence of Consent

handle is hein.journals/clr92 and id is 1794 raw text is: BEYOND RAPE: AN ESSAY ON THE DIFFERENCE BETWEEN THE PRESENCE OF FORCE AND THE ABSENCE OF CONSENT Donald A. Dripps* This essay reevaluates the law of rape. The common law defined rape as the carnal knowledge of a woman forcibly and against her will.1 The conjunction of force and breaking the will, which remains the law throughout the United States,2 implies that ultimate consent to sex can negate criminal liability for unconsented-to violence, that noth- ing short of violence to break the victim's will can constitute a crime, and that the degree of violence the rapist uses to break the victim's will is of marginal importance. The conjunction is normatively arbitrary, but inherent in any statutory formulation derived from the common- law definition of rape. My thesis holds that legislatures should replace the independent crime of rape with a variety of new statutory offenses that would more clearly and more justly define criminal liability for cul- pable conduct aimed at causing other individuals to engage in sexual acts. I. FROM PROPERTY TO AUTONOMY: THE TRANSFORMATION OF RAPE LAw Legal systems have punished rape for thousands of years. The venerability of the offense might be considered a reason for caution in modifying, let alone discarding, a seemingly universal proscription. Contemporary feminist critiques of rape law, however, pretty thor- oughly negate the normative significance of social practice; every soci- ety has punished rape, but only to the end of reinforcing the interests * Professor, University of Illinois College of Law. B.A., Northwestern, 1980; J.D., Michigan, 1983. I am grateful to Bernard Rudden and Dick Mitchell, who offered valuable comments on Roman law; to Marjorie Harris and Tony Taibi, for cogent criticisms of an earlier draft; as well as to others, who decline to be acknowledged by name. 1. 4 William Blackstone, Commentaries *210. But see I Matthew Hale, History of the Pleas of the Crown 628 (1646) (Rape is the carnal knowledge of any woman above the age of ten years against her will, and of a woman-child under the age of ten years with or against her will.). However, the absence of the force-nonconsent conjunction in Hale should occasion small surprise, given his skeptical view of rape accusations; Hale required proof of nonconsent so clear that force was practically implied. See id. at 633. Technically, rape was not a common-law crime after the Statutes of Westminster in the reign of Edward I. The second of these, adopted in 1285, made it a felony for a man to ravish a woman without her assent; the common-law definition is a gloss on the statute. See id. at 627; 2 Frederick Pollock & Frederic W. Maitland, The History of English Law 490-91 (2d ed. 1968) (1895). 2. New Jersey may now be an exception. See infra note 41. 1780

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