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Rape.
Changing the law (and attitudes...)
DUNCAN CHAPPELL
The crime of rape has received massive atten-
tion in recent years, especially in North America,
where one can trace the explosion of interest in
this criminal offence to the impact of the Wo-
men's Liberation Movement. Scarcely a legis-
lature in the common law world has not had to
consider legislation on rape in the past year or
two, and many revisions have been made to an
area of the criminal law previously marked by
centuries of relative stability. In the United States
alone, 37 of the States have enacted new
statutes on rape during the past three years. In
Australia, the law of rape has been scrutinized in
official reports, and formed the *content of
statutes, in the States of South Australia,
Tasmania and Victoria, and is apparently
presently under review in Queensland and
N.S.W. At the Federal level, the Human Relations
Commission has undertaken a study of the crime.
What has all this activity produced in terms of
change in the way the criminal justice system
responds to rape? Many of the criticisms from
the Women's Liberation Movement concerning
rape have been directed towards the manner in
which the criminal justice system has handled
the crime: Women have condemned the principal
elements of the criminal justice system - the
police, prosecution and courts - for their male
chauvinist attitudes towards the offence.
In response to these sustained attacks nume-
rous changes have been introduced in recent
times to improve the system's response to rape.
THE LAW AND THE PROSECUTION
By the 14th Century it seems to have been well
accepted that rape consisted of the unlawful car-
nal knowledge by a male of a female, other than
his lawfully wedded wife, accomplished without
her consent and by force. This definition was
subsequently expanded to include situations
where consent was overborne by fraud or intimi-
dation. Penetration of the vagina by the penis
was also required, but not a completed act of
sexual intercourse.
The only significant previous attempt to revise
the common law concept of rape occurred in the
1950s when the American Law Institute pro-
duced the Model Penal Code. A modified defi-
nition of the crime created two degrees of rape,
together with a third and lesser crime of gross
sexual imposition. Rape in the first degree oc-
curred only if serious bodily injury was inflicted
upon the victim, or the victim "was not a volun-
tary social companion of the actor upon the oc-
casion of the crime and had not previously per-
mitted him sexual liberties". Gross sexual im-
0
position was committed when the level of force
or threats used did not reach the dimensions
required in rape but were still sufficient to "pre-
vent resistance by a woman of ordinary reso-
lution", or involved intercourse with a mental
defective, or impersonation of a woman's hus-
band.
The notion that rape should be a lesser crime
when committed by an acquaintance seems, in
the light of contemporary attitudes towards the
crime, to be a relic of a bygone age. However,
the primary intent of the drafters of this section of
the Model Penal Code was to tighten the
definition of rape, it being felt that the common
law concept of the crime was unduly prejudicial
to offenders, encompassing a range of behaviour
that was far too broad and vague. In his
influential book, Sex and the Law (1951), Morris
Ploscowe, a member of the Model Penal Code's
Criminal Law Advisory Committee, deplored the
"waste of human resources through
the
excessive penalization of what may be nominal
behaviour in a man's cultural, social, or racial
milileu".1
But in recent years, critics of the law of rape
have attacked this protective concern for
offenders. The frustration felt with the existing
law was well summed up in the following
statement made by an American trial judge to a
jury which had just acquitted a rape defendant:
It Is almost impossible In this country to get a conviction of
rape... I am reluctantlycoming to the conclusion ... (that) at
least as far as jurors are concerned,rape is no longer a crime
... (I)nstead of trying the defendant, you make the poor girl the
defendant ... (G)irls don't report rape for the humiliation in-
volved in It, the degradation they go through in the trial... They
are made the defendant, and they walk out of this courtroom
with one thoughtIn their mind: In our courts there is no justice
for the victims of rape. And I can't say that I disagree with
thern.?
The results of this type of criticism have been
quite dramatic, producing a wide array of re-
visions to both the substantive and procedural
laws affecting rape. The primary emphasis of
those supporting these revisions has been the
removal of perceived legal barriers to the
conviction of rapists. Concern for the protection
of offenders' rights, which is reflected in the
Model Penal Code provisions on rape, has
largely been transferred to the victim of the
crime. The result has been, in the view of some
observers, to swing the legal balance too far in
the direction of the victim. Organizations like the
American Civil Liberties Union has been split on
this issue, usually along male/female
membership lines. Similar sex splits have been
evident in the lobbying efforts for new rape legis-
lation, the major impetus for change coming from
Legal Service Bulletin
CHANGING RAPE LAWS
women's groups. Male dominated legislatures
have generally sought to resist these pressures
with varying degrees of success or failure, de-
pending upon one's point of view. The outcome,
at least in the United States, has been the
generation of a great deal of heat and emotion,
coupled with much compromising on both sides
to permit some form of legal change to take
place.
The legal developments in the United States
and Australia appear to fall into three very broad
categories:
(1) Radical change: The so-called Michigan
model is the main example of this type of
development, involving abandonment of the
common law concept of rape In favour of new
sexual assault offences. A more detailed
account of the Michigan law appears below.
(2) Major change: Under this head falls legis-
lation which has retained the basic notion of rape
but modified the definition to include an expan-
sion of the scope and degrees of the crime, with
corresponding variations in penalty. Tne State of
Washington's new rape law, enacted in 1976, is a
good example of this type of change. Influenced
in part by the Model Penal Code structure, the
Washington Criminal Code now provides for
three degrees of rape, the gravity of the crime
depending upon such factors as the degree of
bodily injury inflicted upon the victim, the use of a
weapon, the number of offenders involved and
the age of the victim.
(3) Procedural change: This form of change,
which is also usually subsumed within the con-
tent of the first two categories, involves revisions
of procedural laws on rape, such as:
* Restrictions on the admissibility of testimony
as to the victim's prior sexual history.
a Abolition of special requirements for corrobo-
ration of the victim's testimony, including the so-
called male cautionary Instruction to juries.
9 Protection of the privacy of the victim and the
offender.
With the notable exception of South Australia,
the majority of the contemporary changes oc-
curring in this country in rape laws fall wlih!n this
procedural category. For example, the recb't
Victorian rape legislation, based upon the report
of the Law Reform Commissioner, Mr. Justice
Smith, alters the way rape committal pro-
ceedings are conducted and the type of testi-
mony which can be given about a victim's
previous sexual behaviour. Not affected by the
Victorian statute Is the corroboration warning to
juries.
What has been the Impact of alI this legislative
change? For Instance, has there been, as many
of the legislation's proponents hope, an increase
in prosecution and conviction of rapists with a
corresponding willingness on the part of victims
to report the commission of offences? We do not
yet have sophisticated follow-up studies of the
administration of the new rape laws. All that can
be offered are largely subjective assessments of
impact.
As part of our rape research at Battelle Law
October 1977
and Justice Study Center, we undertook a series
of interviews with persons involved in the ad-
ministration of the new Michigan statute In
Wayne County, Michigan. Wayne County is the
jurisdiction in which the infamous city of Detroit
is located. Interviews were primarily with prose-
cutors working in the Wayne County District
Attorney's office but also included discussions
with several judges, including police Investi-
gators and victims.
Before recording results of these interviews,
let me describe for you in a little more detail the
nature of the Michigan law. The Michigan statute
represents a major departure from traditional
common law rape. Under the new law, four de-
grees of criminal sexual conduct are distin-
guished, depending #upon the presence or ab-
sence of (a) sexual penetration or contact and (b)
specified aggravated circumstances.
The aggravated circumstances that distin-
guish first and second degree criminal sexual
conduct from third and fourth degree sexual con-
duct include: the victim is under 13 years of age;
the actor uses a weapon; the actor is aided or
abetted; another felony is committed; or there is
personal injury to the victim. Some examples
may be helpful. Ifthere is sexual penetration and
personal injury, the crime is criminal sexual con-
duct In the first degree and carries a maximum
penalty of life in prison. Ifthere was only sexual
contact, such as the intentional touching of the
clothing in the vaginal area, and no aggravating
circumstances, then the crime is criminal sexual
conoict, fourth degree, a misdemeanor, with a
maximum penalty of two years or $500 fine.
Viewed by proponents as a "much needed
consolidation and simplification of the law" the
reception of the Michigan statute by operational
staff in the criminal justice system has been less
than enthusiastic. Our interviews revealed wide-
spread dissatisfaction with the new law. De-
scribed as a "law professor's dream", the law
was said to be far too complicated for easy day-
to-day use. .Many police prosecutors admitted
not understanding the law. Said one prosecutor,
"The old law was simple. The only requirements
for conviction were vaginal penetration and
force. Cases were won or lost on the facts, not
the law." However, with the new complex
statute, he remarked, "Charges are fucked up.
Prosecutors use the wrong charge, they fall to
identify the witnesses that corroborate the
aggravating circumstances. Pieces of evidence
are not used. Other deputies mess it up by trying
to amend the charge with what they think the law
should be. Judges have a great disdain for the
law - they do not understand it." Training can,
of course, help overcome deficiencies in criminal
justice agencies' knowledge of a new law. How-
ever, the vagueness, ambiguity, and potential
breadth of the conduct encompassed by the
Michigan statute suggests that it will be the sub-
ject of Intensive legal questioning for some time
to come.
The Michigan statute, and many of its counter-
parts in the other states, were rushed through

the legislature on a wave of political support for
women's rights without the careful drafting .and
allied consideration normally accorded new and
important criminal law measures. The outcome
of such haste can too readily be adverse reac-
tion against those who originally supported the
reform of rape laws, including rape victims.
Another lesson to be learned from the Michi-
gan experience is that legal change alone can-
not alter long-established attitudes on the part of
those administering criminal law. An exami-
nation of the case filing practices in criminal
sexual conduct cases undertaken by prose-
cutors In the Wayne County District Attorney's
Office indicated a "business as usual" attitude,
despite the presence of the new law.
In Wayne County, like most prosecutors'
offices around the United States, the police who
have a rape suspect must present their case for
filing to a special filing or warrant unit. Usually
the prosecutor will interview the rape victim and
will then decide whether or not to file a charge
against the suspect, and ifso, what charge. This
filing decision represents an enormous exercise
of power by the prosecutor which is virtually
non-reviewable except by internal procedures
within the prosecutor's office.
In Wayne County, the filing prosecutors
wielded this power in a conservative fashion with
respect to criminal sexual conduct cases, re-
moving from the system what they termed "bad
rapes" and keeping "good rapes". One prose-
cuto, described a "good rape" as "one where'a
nurse is coming home from work to her husband
and family. She Is dragged off the street and into
an alley where her clothes are torn and she is
sexually assaulted." The same prosecutor de-
scribed a "bad or bullshit, Mickey Mouse" rape
as "one wh'ere some broad living on welfare and
screwing the government and living with some
guy goes out all night and then says she was
raped." Clearly, the prosecutors' personal atti-
tudes loomed large in the decision making, the
legal definition of criminal sexual conduct In one
of its degrees playing a minor role in determining
which cases got filed. (It should be added that
another factor influencing filing policy was the
horrendous backlog of criminal cases existing
within a jurisdiction with one of the highest crime
rates in the U.S..)
THE LAW AND THE POLICE
It is not only the prosecutors who wield large dis-
cretionary powers in the criminal justice system
- so, too, do the police and their influence can
be especially significant in the rape arena. As
the agency receiving the first official report of a
rape and other crimes, police must determine
whether or not a complaint is valid, as well as
make a legal classificatibn of the offence, In the
United States, the Federal Bureau of Invest!.
gation (FBI), for the purposes of compiling
figures for its annual Uniform Crime Reports
(UCR), requires reporting police agencies to re-
cord a rape as unfounded only if "the best
investigation shows that no offense occurred or
CHANGING RAPE LAWS
was attempted". Latest FBI statistics for 1975
show that "as a national average, 15 percent of
all forcible rapes reported to police were deter-
mined by investigation to be unfounded".3
The meaning and accuracy of "unfounded" in-
formation provided to the FBI by United States
police agencies is open to substantial question.
In a recent nationwide survey of police agencies,
the Battelle Law and Justice Study Center found
that responding departments employed a wide
variety of unfounding procedures which bore no
relationship to the FBI guidelines. Only 8% of
agencies said they based an unfounding on
insufficient evidence criteria. On the other hand,
36% said that lack of victim cooperation or with-
drawal of the complaint by the victim could lead
to the unfounding of a report, although the FBI
UCR guidelines state specifically that lack of
victim cooperation is not a legitimate reason to
unfound the report of any crime. The rationale for
this guideline is clear - the victim's decision
whether or not to cooperate with the police and
other criminal justice &gencles Is very frequently
unrelated to the validity of the initial crime com-
plaint. A crime has in fact been committed but for
a variety of reasons the victim does not wish to
pursue the matter further: a woman may be so
distressed by the police response to her report of
rape that she decides to remove herself from
further criminal justice contact; or she may be
threatened by the offender unless she drops her
complaint.
The present pressures on police agencies In
the United States, and possibly Australia, to do
something about rape also brings with it the
potential for inflating unfounding rates. Police ef-
ficiency tends to be measured in terms of clear-
ance rates - what proportion of the total number
of crimes reported to police are actually solved
by the arrest of the offender. To keep rape
clearance rates high, police may be tempted to
record as founded only those offenses likely to
result in clearance by an arrest. In most in-
stances, arrests occur only where there Is an Im-
mediate on-the-scene apprehension or a positive
identification of the offender. In 60-70% of the
rapes in the United States, the offence is
committed by a total stranger to the victim under
circumstances making it extremely difficult to
secure good Identification, with the chances of
arrest being extremely remote. In the course of
their research study, Battelle Law and Justice
Study Center's team encountered one major (and
here unnamed) police agency in which criminal
investigators admitted "suggesting" to rape
victims that they should sign forms withdrawing
their initial complaints because, as the police put
It, "nothing could be done to identify the
offender".
How does this discussion of unfounding pro-
cedures and clearance rates in the United States
relate to Australia? The recent report on rape
prosecutions by the Victoria Law Reform Com-
missioner refers to the "many opportunities for
plausible but unfounded allegations" of rapes;
"the many powerful causes for unfounding alle-
Legal Service Bulletin
CHANGING RAPE LAWS

gations"; and "the high proportion of unfounded not to proceed at all." 5

rape complaints" in Victoria. In support of these
statements, the report des.,ribes results of "a
survey of selected Victorian police districts
carried out by the Assistant: to the Law Reform
Commissioner ... (showing that out of 135 com-
plaints of rape offenses received during 1974
and 1975 in those districts, 68 or approximately
50% were not accepted by the police as being
well founded. In more than half of the 68 cases
the complainant, after being questioned, signed
a statement that complaint was no longer made
4 cases moved through the adjudicative process.
that any offense had been committed."
An unfounding rate of 50 percent for rape com-
plaints seems remarkably high for any juris-
diction and suggests a need for much closer
scrutiny of the exercise of police discretionary
powers than is given in the Victoria Law Reform
Commissioner's study. It is not, for instance,
clear what criteria, if any, are provided the Vic-
toria police force concerning circumstances in
which a complaint of rape is to be unfounded. If
the criterion is the same as that of the FBI UCR
guidelines, namely, that "investigation shows
that no offense occurred or was attempted," the
implication is that half of the women approach-
ing the Victoria police to romplain they have
been raped do so under false pretences. Even
allowing for the reasons listed in the Victoria
Law Reform Commissioner's Report as to why
false rape complaints may be made, it is scarce-
ly credible that such a significant proportion of
alleged victims would subject themselves to the
ordeal of police questioning and detection of
their lies.
Itshould be noted that the Victoria Law Reform
Commissioner's study of unfounded rape com-
plaints was based upon review "of the job books
of the women police officers who interviewed the
persons by whom the complaints of rape were
made ... ". These job books do not appear to
have contained a description of the facts sur-
rounding the rape complaint - only the police-
women's comments on the truth of the alleged
victims' stories: this is not a satisfactory basis on
which to assess rape complaints.
THE LAW AND ADJUDICATIVE
PROCESS
The "screening out" of 50 percent of the rape
complaints by the Victoria police at the initial re-
porting stage is but one illustration of the way in
which discretion operates in the criminal justice
system. Mention has already been made of the
similar exercise of discretion by United States
prosecutors at the charging level in rape cases.
Australian prosecutors undoubtedly exercise the
same type of discretionary powers, as noted by
the Victoria Law Reform Commissioner. "A sur-
vey made of the 163 committals in this state
during 1973 and 1974 in respect to rape offences
discloses that even among these cases which
had survived the scrutiny of the committal pro-
cedures, there were 13.5% in which the prose-
cutors for the Queen either decided to proceed
only in respect of non-rape charges or decided
A helpful way to study the patterns of dis-
cretion relating to rape or other crimes is to trace
the flow of cases through the criminal justice
system. Table 1 portrays the flow of rape cases
during 1974 in one jurisdiction, Seattle, Washing-
ton, following identification of a suspect. In 1974
Seattle Police Department recorded 308 com-
plaints of rape: 17% of these were subsequently
found on follow-up investigation to be unfounded
complaints. Table 1 reveals an amazing attrition
in the number of suspects charged with rape as
Of the original individuals Identified as suspects,
only 31 were charged with rape or attempted
rape, and of these only 6 were found or plead
guilty to a charge of rape. Twenty-five of the
suspects were arrested and released from cu-
today prior to formal charging by prosecutors. In
about half of these cases, the prosecutors
believed they had insufficient evidence to
warrant charging the suspect. In the balance of
cases, the victim either refused to cooperate
with the prosecution or were unaVailable.
Many of the suspects who were charged with
an offence engaged In plea bargaining with
prosecutors. This bargaining process, which is
TABLE I
Flow of Seattle Rape Suspects
Through the Criminal Justice System (1974
Off enso.)
Suspects Identified
Prosecution Investigated
Declined and Released
Charged
By
Prosecutor Charged Other Than
aRape/Att. Rape
Charged Fugitive
With2
Rape/Att.
Rape
Rape/Aft. Assault OtherSex Assault Unspecified
Rape ; Offence

October 1977

openly practiced and tolerated in Seattle and
most other United States jurisdictions, can result
in reduction of the gravity and/or number of
charges against an offender (e.g. indecent as.
sault rather than rape) and also in the sentence
imposed.
It is interesting to contrast the case flow in
Table 1 with the figures in Table 2 taken from the
Victoria Law Reform Commissioner's Report. Al-,
though certain case disposition categories are
not directly comparable, it is very clear that the
rape conviction rate in Victoria is far higher than
the rate in Seattle, a United States jurisdiction
which, if anything, is more advanced than most in
its handling of rape prosecutions. Particularly
striking in the Victoria figures is the large
number (47%) of guilty of rape verdicts following
trial. Few of Seatle rape cases went to trial, and
of those that did, only a fraction (19%) resulted in
convictions of rape. Also striking in the Victoria
figures Is the significant number of "pleas of
guilty to lesser offences though presented for
rape". Are these cases in which plea'bargaining
took place between the prosecutor and
offender?
TABLE 2
Victorian Conviction Rates for Rape Offences.
(Rape, Attempted'Rape and Assault with Intent to
Rape) " ' ' "": *1973/74
Committals for rape offences
Less undisposed of - 15
Disposed of
Additional persons presented for rape
offences though committed only for
lesser offences
Persons committed (or, if not committed,
presented) for rape offences
Convictions obtained against those persons
(I)Pleas of guilty to rape offences
1) Verdicts of guilty of rape offences
(111)Pleas of guilty to lesser offences,
though presented for rape offences
(Iv)Verdicts of guilty of lesser offences,
though presented for rape offences
(v) Pleas of guilty to lesser offences, where
not presented for rape offences
Total convictions
Of the total of 185 persons covered by the survey 75% were
convicted; 47% of the 185 being convicted of rape offences.
New packaging laws
TONY DUGGAN
On 30 June. 1977 the Trade Practices
Commission submitted to the Minister for
Business and Consumer" Affairs a compre-
hensive report on packaging and labelling laws
In Australia. The report-.was released
subsequent to tabling' early in the current
(Budget) session of the federal Parliament.
There is probably no other area of consumer
concern in which laws abound yet where regula-;
CHANGING RAPE LAWS
CONCLUSIONS
These observations on rape'in Australia and the
United States have been directed towards issues
which in general merit much more intensive
investigation and debate. A central question In
both countries concerns the future shapeof'the
laws relating to rape, Hurried action taken by
legislatures in the United States has created a
potential for greater qonfusion and dissatis.
faction with the legal process surrounding this
crime. Australia so far, it would seem, has
avoided these legislative pitfalls. But both coun-
tries may be placing too much credence upon
the law's ability to change long-entrenched
official and community attitudes about rape.
Official attitudes, in particular, can continue to
frustrate the intent of legislation designed to
simplify and rationalize the administration of jus-
tice. Only by maintaining a close review of the
exercise of discretion by police, prosecutors and
courts can major changes in rape laws be fully
Implemented.
This article Is an edited version of a public lecture delivered
178 by the author at La Trobe University on 19 September, 1977.
Portions of the article have previously been published in the
1977 edition of Oracle, The Monash Law Student Asso-
163 clation's Journal.' Research findings noted In the article are
in part the products of a project supported by Grant No. 75.
N1-99-0015 awarded to the Battelle Memorial institute Law
22 and Justice Study Center, Seattle, Washington by the Na-
tional Institute of Law Enforcement and Criminal Justice,
Law Enforcement Assistance Administration, U.S. Depart-.
185 ment of Justice.
Points of view or opinions stated in the article are those of
the author and do not necessarily represent the official posi.
39 tion or policies of the U.S. Department of Justice.
48
25
Footnotes
5
1. M. Ploscowe, Sex and the Law (1951) 166.
21 2. J. Willis, "Rape on Trial" Roiling Stone, 28.8,75, 80
3. Federal Bureau of Investigation, Crime in the United
138 States 1975: Uniform Crime Reports (1976) 24.
4. Victoria Law Reform Commissioner, Rape Prosecutions
(CourtProcedures and Rules of Evidence) (1976) 13.
5. Ibid.
tion is so inefficient. Laws dealing with
packaging and labelling exist at both the
Commonwealth and State levels and are to be'
found in a diveisity of Acts ranging from
consumer legislation, through weights' and
measures statutes, to health and,, drug
provisions.
Amajor finding ofthe Commission was that, as
a result both of lack 'of uniformity and the sheer
Legal Service Bulletin