Gender, Victimization, and Evolving State Standards: a Study of New York and Michigan Sexual Assault Legislation.

I. INTRODUCTION Over the last forty years, state legislation on sexual assault has evolved. Some states have made changes through amendments while keeping some parts of the statute intact. (1) However, other states have stricken the former law entirely and drafted new statutes from scratch. (2) About one half of states have a semi-broad definition of rape whereas the other twenty-five states' rape statutes remain narrow in scope. (3) This article puts forth the argument that a broader definition of rape is more appropriate than a narrow one. Two states with different laws illustrate this contention: Michigan has a very broad definition of rape and New York has a very narrow definition of rape. To illustrate: Michigan's law would cover a circumstance in which a boy was raped as the same crime as if a female was vaginally raped, whereas New York's law would not. This work reviews the history and evolution of rape laws in Michigan and New York. This paper raises, but does not entirely cover, why New York is reluctant to adopt a gender-neutral statute. II. HISTORICAL CONTEXT Rape has traditionally been regarded as a crime against community, family, and property. (4) Thus, rather than the law focusing on addressing the physical harm, violation, and psychological injury to the victim, the law has focused on the harm as damaging chastity and assurance of family lineage. (5) Consequently, as states drafted criminal codes after the post-colonial period, legislatures adopted narrow definitions of rape largely ignoring the trauma to the victim but focusing on vaginal penetration as the harm of the crime. (6) Thus, the only victims of rape would logically always be a woman. As society has evolved, more is understood regarding the personal and psychological damage to the individual caused by rape. III. MARITAL RAPE Historically, a husband could not be charged with the rape of his wife because the marriage contract essentially gave the woman to the man in such a way that she could not retract her consent to sexual acts. (7) The first American case that recognized the idea of a marital exemption was the 1857 case of Commonwealth v. Fogerty, (8) which stated that "it would always be competent for a party indicted to show, in defence [sic] of a charge of rape alleged to be actually committed by himself, that the woman on whom it was charged to have been committed was his wife." (9) This rule was valid even if the couple was no longer living together. (10) Another notion was that with a marriage begins a unit so the couple is one person as opposed to separate people. (11) Remnants of this idea remain today in various incarnations, which will be explored herein. New York's marital exemption was reversed in the 1984 case of People v. Liberta, after the Court of Appeals determined that there was "no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales... are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny." (12) The movement for this change took hold in states in the 1970s; (13) for example, Nebraska changed its law in 1976. (14) However, New York has been relatively late to change sexual assault laws generally. For example, although the changes had essentially been made through the Liberta case, the criminalization of marital rape was not codified into New York law as "rape" until the relatively late amendments of 2003. (15) Moreover, as explained below in greater detail, questions remain regarding the State of New York's hesitancy to move forward with assault laws and why it is reluctant to codify gender-neutral concepts of rape. IV. OVERVIEW OF NEW YORK'S RAPE LAW Currently, New York has defined thirteen separate sexual offenses, five of which may be charged in various degrees. (16) These crimes include: sexual misconduct, rape, criminal sexual act, forcible touching, persistent sexual abuse, sexual abuse, aggravated sexual abuse, course of sexual conduct against a child, female genital mutilation, facilitating a sex offense with a controlled substance, sexually motivated felony, predatory sexual assault, and predatory sexual assault against a child. …