Violent Sex Crimes
Although our understanding of a crime like murder or theft has changed little since antiquity, rape or sexual
assault has seen more significant changes in modern times, and even recent decades.
• In antiquity, sexual assaults were often considered religious &/or property offenses (women were
essentially viewed as property of their father or husband).
Common law → “rape”
Under the common law, rape was only man on woman1, required penetration of the vaginal opening, and did
not include a husband assaulting his wife.
• Other sexual offenses were included as sodomy (which could be a crime of violence or a consensual act).
Modern rape & sexual battery
• Today, “rape” has been expanded to “sexual battery” or “sexual assault” such that it includes any
unwanted sexual touching of another person’s sexual organs. Acts involving force, threat, and/or
penetration are generally treated as the most serious.
o Marital rape was unknown in the Common Law but now is considered illegal as any other nonconsensual sexual battery.
o Acquaintance rape (“No” means no.). Similar to marital rape. There is a long history of the
criminal justice system ignoring acquaintance rape due to two issues. First was the biased belief
that it was typically consensual sex until one of the parties (the female) had regrets “the next
morning”. Obviously, “drunk sex” has been a substantial element of this as well.
The second issue is the historical difficulty in convincing a jury that there was a crime
“beyond a reasonable doubt” considering the social situations in which these incidents are most
likely to occur due to the same reasons noted in the first issue.
We now know that acquaintance rape is the most common form. Because of that, we
will spend more time discussing it below.
o Statutory Rape is consensual sex between an adult & adolescent. It is a crime because the
minor is unable to give lawful consent to the activity due to their age. Willing participation is
not sufficient. The law on this has shifted fairly radically over the years with age of consent
being as low as 12 and as high as 18. Most states in the U.S. have adopted a scale by which
consensual sex with a minor is only illegal if there is more than two years (or some similar gap)
between the ages. And, to be clear, it is only illegal for the older of the pair.
o “Human Trafficking” is a broad term that has come into vogue, largely as a means to raise the
public’s consciousness of women and girls involved in prostitution. Typically, when minors are
involved, they are automatically considered victims of sexual assault since they cannot legally
give consent. By framing them as victims of human trafficking, it is more likely that they will be
treated as victims rather than perpetrators of prostitution by the police and courts.
As opposed to non-consensual sexual crimes, consensual “sex crimes” (victimless or vice crimes) have largely
been decriminalized with the exception of prostitution and incidents involving children or the mentally
incompetent. We will talk about these “morals” crimes later in the term.
Trends in sex crimes
In the chart below, there are two trend lines. The top line indicates rapes reported in the National Crime
Victimization Survey (NCVS). The lower line indicates rapes recorded by the police (in the UCR).
1
For purposes of this lecture, I will generally refer to victims as female and perpetrators as male. That should not be taken
to preclude other mixtures of sex and gender as victim and perpetrator. Indeed, in 2019, the NCVS estimated that over 11
percent of sexual assault victims were men.
Although the NCVS data in its early years is suspect in its estimates of rape (they essentially didn’t ask direct
questions about it), the later data is thought to be much better (i.e. late 1980’s & 90’s). The dominant trend
line showing rape decreasing substantially is thought to be correct, and it reflects other violent crime trends.
The other important element here (and it is likely a contributing factor to the overall decrease in rape) is that
the percentage of these crimes reported to police has climbed dramatically, from less than 20% in the 1970’s to
the 35-50% range in the late 1990’s and early 2000’s.
• This is attributed to several things: laws requiring education and health providers to report sexual
victimizations of children; increased women victims advocacy that encouraged reporting (victims
advocates, women’s health providers and support services, university programs encouraging victim
reporting); training and additional law enforcement services that emphasized reporting and the
seriousness of sexual assaults (as opposed to ignoring many of them).
Rape Rates per 100K
300
250
200
150
100
50
0
2000
1997
1994
1991
1988
1985
1982
1979
1976
1973
Rapes reported to
the police (UCR)
Rapes reported in
NCVS
This illustrates a success story in criminal justice policy. Beginning in the 1970’s, when only about 10% of rapes
were ever reported to the police, women’s groups, victim’s advocates, and law enforcement began a public
relations campaign to encourage more women to report sexual assaults and for police to take them seriously.
Now sexual assault rates have fallen considerably (along with most other serious violent crime rates), but the
proportion of rapes that are reported to the police are much higher, around 50%.
• This message of reporting sexual assaults is particularly important for college age women since they are
in a high-risk group for sexual assault.
Note on FBI UCR Rape definition change
In 2013, the FBI changed it’s definition of rape for UCR purposes in order to broaden that definition beyond
penile penetration. The FBI explanation is printed verbatim below.
In 2013, the FBI UCR Program initiated collection of rape data under a revised definition within the Summary
Reporting System. Previously, offense data for forcible rape was collected under the legacy UCR definition: the
carnal knowledge of a female forcibly and against her will. Beginning with the 2013 data year, the term
“forcible” was removed from the offense title, and the definition was changed. The revised UCR definition of rape
is: Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by
a sex organ of another person, without the consent of the victim. Attempts or assaults to commit rape are also
included; however, statutory rape and incest are excluded. – “Rape, Definition”. FBI, Crime in the United States,
2013
The important thing to note here is that the broader definition captures a much larger set of behavior compared
to the traditional rape definition that was linked to the Common Law definition as you can see in the overlap in
the graphic. The trend of sexual assault is the same. See the graph below.
Another important fact to note is that the rate of Rapes reported to the police in the U.S. hit its lowest mark in
2013, and then began climbing since then. This roughly correlates with the best estimate of trends in sexual
assault in the U.S. According to the NCVS, actual overall sexual assault hit its lowest point in 2005 with less than
1 victim per 1000 persons each year. It has been fairly unstable but holding between 1 and 2 victims per 1000
citizens since then. It does seem to be climbing (slowly, unevenly) since 2009.
Why do Men Rape?
•
•
Biological Factors
Learning
o Socialization (Generalized Culture)
o Warped Learning pattern (media)
o Victimization
• Personality Disorder
• Sexual Desire
A number of theories have been posited for why men rape.
• Biological Factors – genetic predisposition
• Generalized evolutionary genetic wiring drives to reproduce (normally kept in check through
socialization/learning)
• Genetic error – when a random mutation occurs creating a predisposition for deviant behavior.
• Learning – violence may be related to sex through a variety of learning processes.
• Socialization (Generalized Culture) – when there is a generalized culture of machismo, it
supports men’s aggressive and sometimes violent sexual attacks on women. It may create a
sense of hypermasculinity in men. Dabney’s mentions of gender inequality theory and
generalized legitimation of violence would fit here as well.
• The oft-heard “power” thesis fits into this category from a feminist perspective. That is,
a male dominated society functionally teaches males that it is acceptable to dominate
women to reinforce the power differential inherent in society. But it might also fit into
some other category in terms of the source of power frustrations, e.g. a personality
disorder.
• (Hypermasculinity may be shaped by other factors such as warped learning patterns,
personal victimization, personality defects, or media influences.)
•
•
•
•
Warped Learning pattern (media effects including the pornography thesis) – some research
supports the concept that media with violent content against women increases men’s approval
and likelihood of using force or violence to coerce sex. Psychological research has shown that
viewing violence in conjunction with sexual arousal can create a behavior-reward contingency in
the mind of a man.
• NOTE -- there is still no easy answer to the pornography→rape question. Best data
indicates no direct relationship, but research also indicates a likely relationship between
violent media and sexual assault (Bartol and Bartol have a good summary).
• Victimization – childhood victimization may lead to future abuse (the abused becomes the
abuser).
Personality Disorder – many sexual abusers have psychological problems; these can be genetic or
organic in nature or due to the learning processes just mentioned, or a combination of both. I.e.
genetic/organic predisposition in conjunction with warped learning patterns.
Sexual Desire – commonly we hear that rape is not a sex crime but is a crime of power. That is an overly
simplistic statement. Male physiological response is well known – penile arousal is the most widely
accepted direct measure of male sexual arousal that I’m aware of; and many sexual abusers are
obviously getting their sexual jollies through victimization of others.
Dabney includes social disorganization synthesized with Cohen’s strain-based theory. The breakdown
of social institutions leads to status frustration that results in a reaction formation. The outcome is a
deviant perspective that can justify crime, including sexual assault.
Groth’s Typology of Rapists
Groth developed a three-part typology for types of rapists. Cohen and colleagues developed a five-part typology
that overlaps with Groth. Cohen does not provide a percentage distribution, so we rely on Groth’s .
• Anger (40%) (Displaced aggression, Cohen)
• Power (55%) (sexual aggressive, Cohen)
• Sadistic (5%)
• Compensatory (Cohen, et al.)
• Impulsive (Cohen)
Anger rapists – brutal, wants to harm, tends to have a very negative view of women, may occur on the spur of
the moment after a stressful incident. Demeaning -- has little to do with the actual sex (often can’t have an
erection without felatio).
Power Rapists – The most common type according to Groth. Wants to dominate to demonstrate greater power
than the woman. Sexual arousal is associated with domination. Convinced that women “want it” and “like it”.
Sadistic – extreme cruelty sexually excites this rapist. Often draws out the capture, torture, and even creates
rituals to prolong the torture.
I’ve added a couple of other types taken from Cohen, et al. (in Bartol & Bartol, 1986) that seem distinguishable
from Groth’s types.
Compensatory – Somewhat like a “Power” rapists except relatively non-violent; will often flee if resisted; under
the delusion that if he forces a women to have sex, she will then like him. He is socially immature and
withdrawn – sort of the invisible type of person that is a “nice guy”. Often rapes women who he doesn’t know,
but has watched or seen often.
Impulsive – rapist who is opportunistic, e.g. interrupted during a home burglary; street robbery turns to rape;
unplanned gang rape in a bar or fraternity house.
Now that we realize that so many sexual assaults are acquaintance rapes, date rapes, and many occur in social
settings, it’s not clear to me that these typologies adequately consider and classify those assaults.
Stranger Rape
• Increasingly common issue: false identification of suspect
An Increasingly common issue in stranger rape cases is false identification of the suspect. This can be due to
circumstances (darkness, eyes covered, etc.) or the trauma of the event impeding memory. We also have pretty
good scientific evidence that cross-racial identifications tend to be less accurate than intra-racial identifications.
Since the improvement of DNA analysis, a number of convicted rapists have been released after DNA analysis
demonstrated that the semen deposit was not from the convicted person. If you’re interested, you can check
out the Innocence Project at http://www.innocenceproject.org – many of their cases are death row cases. The
Dallas, TX District Attorney became a well-known figure for advocating more closed-case analysis to find unjustly
convicted men.
Acquaintance Rape
•
65-70% of Sexual Assaults are by a perpetrator known to the victim
o It’s estimated that less than 1 in 10 “date rapes” are reported to the police.
• The most common issue becomes Consent and the following rationalizations are brought up by perps.
o “She encouraged it.” (i.e. dress, promiscuity, “teasing” behaviors)
o “She didn’t say ‘no’.”
o Said “yes”, changed it to “no”.
▪ Yes to no during the sex act?
o She was drunk (or high).
Although media traditionally portrays stranger rape as the “normal” sexual assault. It is in fact in the minority.
For example, in 2019, only 27% of sexual assaults were reported as by strangers, while 68% were by intimates
and acquaintances. An additional 2% were relatives. Acquaintance rapes make up the large majority of sexual
assaults. Because of the large number of sexual assault cases involving acquaintances, the most common issue
in these kinds of cases and trials is often an issue of whether the presumed victim actually consented to the act.
It then is often a “he said/she said” type of case.
• Before Rape Shield Laws2, there was often the question of the victim’s past pattern of sexual relations
such as promiscuity and similar claims that she “encouraged” sex (e.g. by her dress). These types of
claims are largely unusable under contemporary court rules because Rape Shield Laws have largely
ruled prior history as irrelevant and prejudicial to the event being tried. However, the 2004 Kobe Bryant
case in Colorado illustrated that Rape Shield Laws are not as all-encompassing as previously believed;
and that there are some narrow exceptions.
• More recent courtroom trials have revolved around whether the female actively consented.
o Didn’t say “no”.
o Said “yes”, changed it to “no” … maybe…; again, a he said/she said situation.
▪ At least one court case considered a case where the female said “yes”, but changed it to
“No” during the sex act. (Unfortunately, I failed to write down the case when it was
under way in Spring 2003, and now I don’t know the outcome.)
o Voluntary Intoxication on the part of the victim is particularly problematic at trial. Can a drunk
person consent to sex?
The Rich and Famous
Acquaintance rape has become a hot topic through two main categories of events: campus sexual assaults
(discussed below) and sexual assaults by famous people. A number of rich and famous people have been
accused and/or convicted of sexual assaults. One of the most famous is Bill Cosby (actor and comedian) who
2
The term “rape shield law” may be construed to mean a shield from media publishing personal details of a sexual assault
case. That is NOT the meaning taken here. Although most mainstream media outlets do not publish the victim’s identity,
that varies by outlet. A rape shield law as generally understood means that prior sexual behavior cannot be used by the
defense to taint the image of the victim during the trial in an attempt to create the perception of probable consent.
was eventually convicted and sent to prison. Harvey Weinstein, a well-known film producer was convicted of
sexual assault in New York, and at the time of this writing (spring 2021) is under indictment in California. Other
examples can be found among former professional athletes such as Darren Sharper, C.J. Spillman, Dana
Stubblefield, Nate Webster, and Keith Wright.
College Student Victims
Acquaintance rape appears to be particularly problematic on college campuses. The statistics noted below are
somewhat dated (1980’s). If anyone comes across newer data/research while working on your own research,
please let me know what newer figures you have.
One project surveying college students has found that
• 15% of female college students report being raped since 14 years of age.
• An additional 12% report attempts on them
• A 1984 study indicated that 1 in 4 women are raped while in college (Meyer in Vito & Holmes)
• 35% of male college students reported that they would rape a girl (and 60% would “force sex acts”) if
they thought they would get away with it! (see Bartol & Bartol)
Date Rape among HS girls
( Schubot, 2001)
• 12 - 15% of high school girls in his sample report being forced to have sexual intercourse on a date.
• Any reason to think it’s more or less now?
o South Dakota, primarily white respondents, more rural
Schubot (2001) reports that between 12 and 15% of high school girls in his sample report being forced to have
sexual intercourse on a date.
• The single survey question uses word “intercourse”; but because of the common misperception that
oral sex isn’t “sex”, some girls may have left out those forced encounters.
His research took place in South Dakota.
• Other states are likely to have a very different distribution of crime predictors, e.g. age, race, urban
density. Respondents were 88-94% white. Also, South Dakota is a more rural state than many others.
However, since date rape is very underreported – we cannot say that the racial or urban distributions
that describe other forcible rapes will also be true of date rapes.
• For your consideration: Is date rape more acceptable within the working, middle, and upper classes than
is more violent forcible stranger rapes?
Theory of Rape on College Campuses
Schwartz and DeKeseredy (1997) -- Book Review by Chesney-Lind & Hippensteele
What are the basic components of Schwartz and Dekeseredy’s theory?
(Modified) Male Peer Support Model has Four major components
1. Patriarchal ideology (i.e. simplified: male dominant family and dating relationships)
2. Formal male social groups (e.g. fraternities, athletic teams)
3. Alcohol consumption
4. Lack of deterrence
Schwartz and DeKeseredy (1997) lay out four factors that come together on college campuses and serve to
create an environment where sexual assaults are encouraged.
• First is the issue of being socialized in a male dominated society with all of the baggage that it entails,
essentially the assumption that women are subservient to men’s wants and wishes.
• Many men on college campuses join formalized groups (fraternity, athletic team) that have a strong
group identity, and often will have a group culture and history that includes the abuse of women
including sexual abuse.
•
•
Consumption of large amounts of alcohol is common to such groups. Alcohol facilitates rape by
lowering inhibitions of the perpetrators and hindering the judgment of potential victims – sometimes to
the point of unconsciousness – as well as their ability to resist.
Fourth, S&D believe that there is a lack of enforcement mechanisms on college campuses so that the
risk to the perpetrators is viewed as rather low. Recall what I said earlier about 60% of male college
students in one survey report that they would rape a girl, if they thought they could get away with it?
Well, perceived lack of deterrence translates into believing you can get away with it.
Sexual Assault in the U.S. Military
A very current and ongoing debate is the levels of sexual assault in the military and how it should be handled. A
particularly important touchstone for this issue are events that became public in 2003 related to Air Force
Academy Cadets.
• U.S. Air Force Academy
• 2003 Media revelations
• Pentagon investigation
The findings of the investigating body found a “culture” that allowed sexual assaults to go largely unreported,
uninvestigated, and unpunished.
• 19% of female cadets victims of sexual assault or attempt.
• 7.4% victims of rape or attempt.
In 2003, several media outlets aired claims by female cadets at the U.S. Air Force Academy that there was
widespread sexual assaults by male cadets on female cadets. This incident may provide an example of cultural
causation for sexual crimes, as well as an example of how underreported the crime can be, even within elite
institutions. The subsequent investigating body reported that
“The Air Force has known for many years that sexual assault was a serious problem at the Academy. Despite that
knowledge and periodic attempts at intervention, the problem has continued to plague the Academy to this day.
The regular turnover of Air Force and Academy leadership, together with inconsistent command supervision and
a lack of meaningful and effective external oversight, undermined efforts to alter the culture of the Academy.
During the ten-year period from January 1, 1993 through December 31, 2002, there were 142 allegations of
sexual assault at the Academy, for an average of more than 14 allegations per year. Academy and Air Force
leaders knew or should have known that this data was an unmistakable warning sign and quite possibly signaled
an even larger crisis.
“For example, a February 14, 1997 presentation by the Academy to the Air Force Inspector General (“Air Force
IG”), Air Force Surgeon General and the Judge Advocate General of the Air Force acknowledged that statistically,
as few as one in ten rapes is reported to authorities. Recently, the Department of Defense Inspector General
(“DoD IG”) disclosed that a May 2003 survey of Academy cadets showed that 80.8% of females who said they
have been victims of sexual assault at the Academy did not report the incident….
“Over the past decade, the Academy and Air Force leadership had increasing cause for alarm, and should have
aggressively changed the culture that allowed abuses to occur. Unfortunately, Academy leadership acted
inconsistently and without a long-term plan. As a result, female cadets entrusted to the Academy have suffered,
sexual offenders may have been commissioned as Air Force officers and the reputation of a fine institution has
been tarnished.
“The sexual assault problems at the Academy are real and continue to this day. According to the May 2003 DoD
IG survey of female cadets (Classes 2003–2006), 18.8% reported they have been victims of at least one instance
of sexual assault or attempted sexual assault in their time at the Academy. Included in this number are 7.4% of
female cadets who said they were victims of at least one rape or attempted rape while at the Academy” (Report
of the Panel to Review Sexual Misconduct Allegations at the U.S. Air Force Academy, Sept. 22, 2003).
As you might imagine, allegations of sexual assault have continued in the military. One of the concerns about
sexual assault in the military is that when crimes occur between military personnel and on a military installation
or war zone those personnel are generally held criminally responsible under the Uniform Code of Military Justice
(UCMJ), not civilian criminal justice. The UCMJ essentially allows commanders in the chain of command to
influence, interfere, or even prevent criminal prosecutions.
At the time of this writing, there is a strong push to change the way that military crimes are investigated
and tried. Sen. Kirsten Gillibrand (D-N.Y.) has fought to revise the UCMJ and remove such decisions from the
chain of command, placing them instead in the hands of an independent prosecutor. As of Spring 2021, there
are a number of co-sponsors for her bill (bipartisan support) and a lot of optimism that it will pass.