Reviving Resistance in Rape Law
Michelle J. Anderson   |   1998 U. Ill. L. Rev.

The legal requirement that a woman strongly resist a man's sexual advances to prove that she was raped has largely disappeared from the statute books. Despite this, courts continue to look to the level of the woman's resistance in judging the two key elements of rape--nonconsent and force. In so doing, Professor Michelle Anderson argues, courts judge women's actions by reference to an ideal standard of behavior. Under this model, many women who did not consent to intercourse and who were overcome by force are deemed not to have been raped. At the same time, however, courts and legislators have now begun to discourage resistance to rapists, labeling it as a dangerous strategy for women.

Anderson argues that the apparent contradiction of discouraging resistance while holding women up to an ideal standard of resistance is a direct result of the argument that rape reformers advanced to abolish the resistance requirement. Reformers claimed that resistance risked serious bodily injury and even death to the victim. They thus believed that resistance should not be required, but failed to offer courts a new interpretive paradigm by which to evaluate a woman's resistance. This, Anderson argues, was a mistake. Research shows that a woman's active physical resistance to a rapist helps to avoid rape completion without increasing her risk of serious bodily injury. Anderson recommends that, while resistance should not be required to prove rape, a court should parse the factual record for evidence of resistance and allow it to weigh in fairly on behalf of the victim. Anderson proposes that resistance be revived in rape law by making any resistance--verbal or physical--sufficient, but not necessary, to prove rape.

* Assistant Professor, Villanova University School of Law. Thanks to Carlita Cannaday, Mary Clark, Steve Goldblatt, Vicki Jackson, Neal Katyal, Catherine Lhamon, Michael Olson, and Robin West for their criticism and suggestions. All errors are mine. Thanks to Associate Dean Anita Allen, Rebecca Kamp, and Karen Summerhill of Georgetown University Law Center and Margaret Coyne of Villanova University School of Law for their institutional support for this project. Janalyn Martinez-Carlo and Carolyn Wolpert provided excellent research assistance.