A Giant Step Backward

JACK FRUCHTMAN JR.

April 29, 1993|By JACK FRUCHTMAN JR.

''From prehistoric times to the present, I believe, rape has played a critical function. It is nothing more or less than a conscious process of intimidation by which all men keep all women in a state of fear.''

--Susan Brownmiller, ''Against Our Will: Men, Women, and Rape''

''Women feel as much, if not more, traumatized by being raped by someone we have known, or trusted, someone we have shared at least an illusion of mutuality with, than by some stranger.''

--Catharine A. MacKinnon, professor of law, University of Michigan

When most people speak about rape, they can mean only one thing: rape is when a man has sexual intercourse with a woman to whom he has no right of access.

Maryland law is clear: When a woman is helpless (such as when she is so intoxicated she has lost consciousness), she is unable to give her consent. A man who has sexual intercourse with a woman in this condition has, unambiguously, raped her, and is subject to the penalties under Maryland law, which defines rape as a felony subject to up to 25 years imprisonment.

Baltimore County Circuit Judge Thomas J. Bollinger would rather ''equate [rape] with property crime,'' so that when a man has uninvited sex with a woman unconscious as a result of too much alcohol, he should be treated as if he committed not rape but a larceny: ''if you get up and leave your pocketbook on the bench and I take it,'' the crime is larceny, not a felony.

There is a profound irony in this statement. Historically, men have considered women to be their ''property,'' belonging first to fathers and then to husbands. The prohibitions against rape were originally designed to protect not women but their fathers. In several ancient societies, fathers ''sold'' their daughters to prospective husbands for a particular sum, say 50 pieces of silver. But no man would pay that rate for a girl or woman who had been raped. The buyer considered the goods in effect damaged. The father owned a devalued asset, a piece of property that was hard, if not impossible, to sell. Rapists were therefore required to compensate the father, not the violated woman or girl.

This view of rape as property theft derives from the English common-law tradition, from which the American legal tradition derives. Common law held that once a woman married a man, her legal identity ceased: it devolved into her husband's. She in effect became his property. She could not sue, enter into contracts, keep her own earnings or even make a will. She could be chastised by him, even in public, and had to submit to his sexual advances whenever he wanted.

In the 17th century Sir Matthew Hale wrote in an English court that ''a husband cannot be guilty of rape upon his wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband, which she cannot retract.'' She totally belonged to him, body and soul.

For 100 years now, women have tried with some success to bring about radical changes to the law. Today, for example, we recognize marital rape as a crime, and men do not regard women solely as chattels. The state of Maryland's second-degree rape law was designed to offer women greater protection by securing a long prison term for those convicted of taking sexual advantage of women, of seeing them as nothing more than a piece of dry goods to be bought and sold in the marketplace.

Judge Bollinger's equation of the sexual violation of a woman to a larceny involving a stolen pocketbook is a monumental leap backward for the law. It signals to women everywhere, not only in Maryland, that their devaluation as human beings by men is not a thing of the past but very much alive in American society.

Jack Fruchtman Jr. teaches politics and feminist legal theory at Towson State University.

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