From Raptus to Rape: A History of the Requirements of Resistance and Injury
Despite more than three decades of progressive law reform, the criminal law's response to sexual assault remains unsatisfactory. The persistence, in practice, of 'requirements' that legislators have attempted to erase - such as that the complainant must have physically resisted - is especially troubling. I argue that it is not possible to confront the contemporary failures of rape laws without understanding their complex and sedimented history. I trace one powerful site of continuity that legislative change has failed to disrupt - the focus on resistance and injury - from the thirteenth to the eighteenth century. Even as rape emerged a crime of (female) sexual violation, it was invested with requirements of proof that reflect rape's history as acrime of interference with patriarichal interests in marriage and property. These findings suggest that ongoing reform energy must address not only the content of formal laws, but the knowledges and cultural lineages that reside outside statutory definitions and rules of evidence.