Rape and resistance

Will state law regarding sexual assault keep up with the 21st century?

For decades, states have been updating the definition of "rape" to move away from its patriarchal past, which emphasized whether a victim demonstrated physical resistance. Such a requirement was wrong from the start. In simplest terms, rape is best defined as sexual intercourse without consent of both parties. Whether a victim resists may vary by his or her circumstances, as a physically aggressive response to a rapist could lead to an increased level of violence and serious injury or death.

Under the circumstances, Maryland law ought to make it clear that rape doesn't require a victim's physical resistance. Courts have generally not required that component in recent years, but, unless it's written into the statute, there's always the danger that judges may see the issue differently in the future and perceive a lack of physical resistance as a form of consent. Legislation sponsored by Baltimore County Sen. Delores G. Kelley, vice chairwoman of the Senate Judicial Proceedings Committee, would specify that evidence of physical resistance is not required to prove that a rape had been committed.

That seems like an obvious improvement to the law, and the measure received a boost recently with an endorsement by the committee's chairman, Sen. Robert A. Zirkin, who also hails from Baltimore County. It also has 26 co-sponsors, which virtually guarantees its passage in the Senate. The House version of the bill already has more than 60 co-sponsors in the 147-member chamber as well, but given the past influence of the criminal defense bar on the House Judiciary Committee and its chairman, Del. Joseph Vallario, the bill's passage is less certain.

The legislation ought to become a high priority for Maryland lawmakers, given recent evidence that the states' law enforcement agencies often don't take rape allegations as seriously as they should. The most glaring problem is the backlog of thousands of untested rape kits, a problem investigated by The Baltimore Sun last year and which resulted in Maryland Attorney General Brian Frosh's call last month for a standardized statewide policy on when such kits should be tested and how long the evidence should be held by police agencies.

As challenging as sexual assault allegations can be for police, there's simply too much evidence that such incidents aren't taken seriously enough and that rapes and other forms of sexual assault are under-reported as a result. In Baltimore County in 2014, for example, police classified 34 percent of rape claims as unfounded, a percentage that is nearly five times the national average. A resulting review found procedural shortcomings in how sexual assaults are investigated and prosecuted. The county's police chief and County Executive Kevin Kamenetz have vowed to institute recommended reforms.

Indeed, lawmakers ought to be more than a little embarrassed that the sexual assault statute hadn't already been revised to exclude a requirement of physical resistance. It hasn't been part of the federal definition since 2012 when the U.S. Department of Justice had to update its truly archaic 1920s-era "forcible rape" language that, among other things, did not contemplate same-sex rape. Nor have older definitions of rape considered the prospect that a victim has a mental defect that might make it difficult for that person to not only resist physically but to communicate unwillingness — circumstances that Senator Kelley's bill also addresses.

By any definition, rape remains a too-common crime with, according to statistics compiled by one advocacy group, an act of sexual assault taking place every 98 seconds. Studies suggest one in five women have experienced it at some point in their lives, most often when they are below the age of 30. Perpetrators are rarely strangers, according to the Centers for Disease Control and Prevention; with women it's most commonly an intimate partner and with men, most often an acquaintance.

At minimum, states like Maryland must move into the 21st century in dealing with such crimes, and that means ensuring that police and prosecutors are better trained to deal with victims. But perhaps above all else, everyone in law enforcement needs to be on the same page in defining what rape is and isn't. Requiring victims to demonstrate physical resistance is clearly archaic and needs to be excised from the law regardless of whatever other reforms are in the offing.

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