Because the law defines rape as a crime, it is important to examine historical legal definitions and past and contemporary legal processes as they relate to sexual assault.

Historically, the law conceptualized rape as the violation of a man’s property. It was a man’s, specifically a husband’s or a partner’s, personal privilege to have access to a woman’s body. A husband could not be charged with raping his wife. Although the spousal exclusion rule in rape cases has been removed in all states, prosecution for rape in marriage con­tinues to be restricted in many states. In some states, a couple must be legally separated and living in separate residences for a charge of rape to be made.

In the past, juries also may have received instruction that an accu­sation of rape “is one which is easily made and, once made, difficult to defend against, even if the person accused is innocent” (Berger, 1977, p. 10). The jury was cautioned to be suspicious of the victim’s testimony, much more so than in other criminal cases. Even though the injunction is no longer made, this suspicion is influential particularly in a jury’s de­cision to convict in acquaintance rape cases today. Juries are less likely to convict a man charged with raping a woman if the rapist and victim knew each other (Muehlenhard, Powch, Phelps, & Giusti, 1992). They may be­lieve that she has raised a false accusation due to guilt, fear, or revenge.

Within the current legal system, consent remains crucial to deter­mining whether a rape has occurred (Fuller, 1995). If a man is to be con­victed of rape, the lawyer must prove not only that the woman did not consent to sexual activity, but also that the man realized that the woman was nonconsenting and continued to force her anyway. The lawyer must prove mens rea (criminal intent). Thus, if the defendant can present evi­dence of the reasonableness of his belief that the sexual activity was con­sensual, the prosecution lacks the required mens rea to convict. This process focuses on the perpetrator’s rather than the victim’s perception of the event. Therefore, the legal definition of consent often is determined not from the woman’s perspective, but from the man’s. Furthermore, noncon­sent is inferred usually from evidence of resistance, which is often difficult to prove (Muehlenhard et al., 1992). For example, submission with little resistance, out of fear, may be taken as consent. Men’s sexually aggressive behavior may be excused as simply a misunderstanding of the woman’s desire.

Moreover, there is a tendency for juries in rape trials, which are gov­erned by criminal law, to wrongly import the concept of contributory neg­ligence from civil law (Bryden & Lengnick, in press). In criminal cases, the victim’s behavior does not negate the perpetrator’s criminal act. In a rape trial, a jury should consider the victim’s behavior only insofar as it is relative to determining the likelihood that she consented. However, juries tend to use the woman’s behavior to exonerate the man. Thus, they yoke blaming her with exonerating him. The concept of contributory negli­gence, however, is not appropriate in criminal trials. Her behavior does not excuse his behavior.

Moreover, rape, as codified in legal statutes, has been constructed from a male perspective. Sex crimes may have been defined differently if women had greater involvement in public policy and greater input into the conceptualization of what behavior constitutes a criminal act. For ex­ample, repeated psychological coercion to engage in sexual activity may be interpreted by its victims as just as hurtful or more hurtful than an isolated, minimally violent rape (Arata & Burkhart, 1996). Yet psychological co­ercion is not a type of crime (see Gavey, 1992, and O’Sullivan, 1995, for discussions of various forms of noncoerced, but unwanted sex).