DEFENSELESS AGAINST RAPE: OUTDATED LAWS AND A PROPOSED LEGAL SOLUTION

The Centers for Disease Control (CDC) tells us that the injuries rape causes are often pervasive and span a wide spectmm of physical, psychological, and social injuries.4 Physical injuries include pregnancy;5 long-term physical injuries include chronic pain, gastrointestinal disorders, gynecological complications, migraines, sexually transmitted infections,6 cervical cancer,7 and genital injuries.8 Rape also causes both immediate and chronic psychological injuries. Reasons for this apparent disconnect between public opinion and U.S. law include women historically being the most common victims of rape.17 As a result, lawmakers, primarily men,18 now perceive the act of rape as wrong, but still have difficulty understanding the full impact of rape on a victim.19 The development of U.S. rape law has led to a variety of inappropriate evidentiary laws regarding rape.20 Some of these laws have been updated to reflect a more modem view of rape and its impact on victims, but a number of mies remain outdated.21 Many of the updates have been piecemeal, leading to a number of states now having bizarre internal inconsistences within their rape laws.22 This paper focuses on one of these types of well intended, but malfunctioning, updated laws: enhanced laws of aggravated rape resulting in a prohibition of a rape victim's use of deadly force when defending herself.23 The exclusion of deadly force from acceptable forms of self-defense against rape may be due in part to rape still not legally being considered a serious enough crime warranting such an extreme level of self-defense. [...]it became punishable by death.34 Two hundred years later Emperor Justinian abolished many of the previous laws concerning raptus, but still strongly enforced the death penalty and added a new penalty: confiscation of property.35 The added penalty for rape and the continued use of the death penalty, indicates that these early rulers had an increasingly expanded awareness of the severity of rape.36 Although women at this time were still not considered the victims of rape,37 Justinian Law began to recognize a subset of women as crime victims in their own right.38 Justinian focused for the first time exclusively on the sexual aspects of rape. [...]some additional evidence beyond that of sexual activity and force, such as corroboration, was necessary to establish rape.49 Another cultural norm during the 1800s was the view that women should be chaste until married, virtuous, and avoiding any appea