Why Do We Still Have Laws that Say It's Not Rape Unless the Victim Fights Back?

Specifically, the legal definition of rape in Alabama is sexual intercourse in which the actor "uses forcible compulsion" or "the other person is incapable of consent" by reason of mental incapacitation, age, or physical incapacitation. In turn, "forcible compulsion" is defined as "Physical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person." In practice, the vagueness of the phrasing leaves room for interpretation at every level: everyone from the beat cop taking a victim's statement to the judge presiding over a grand jury has a chance to personally define what resistance counts as earnest.

"Earnest resistance has been defined relatively loosely," says Kathleen Connolly of the Alabama Coalition Against Rape (ACAR). "Saying 'no' or putting your hands up has counted in case law."

"Very few states have in their codes that resistance is required," says Jennifer Long, the chief executive officer of AEquitas, a resource on violence against women designed for prosecutors. "But as a practical matter, when you have the use of force as part of the law, there is an insidious burden that's placed on a victim." The burden is psychological as well as evidentiary. "Rape victims are likely to self-blame, so when we actually say, 'Why didn't you fight?' we cause real psychological damage," says Long. "And that damage can be severe."

Maryland recently changed its definition of sexual assault to remove a requirement for physical resistance. "For far too long in Maryland, we've been promoting a sort of rape culture," Baltimore's State Attorney Marilyn Mosby told the Baltimore Sun. Montana also changed its definition of rape this year. Activists in Alabama are hoping to do the same. "I am hopeful," Meg McGlamery of the Crisis Center Birmingham. "It is time."

Watch: Amy Ziering on Campus Rape and Why Nobody Believes Women

The FBI updated the definition of rape they use for gathering national statistics in 2012 to "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." The previous definition—"the carnal knowledge of a female, forcibly and against her will"—only counted penile penetration of the vagina, and left no room for, among other scenarios, the rape of men, woman-on-woman assault, or rape that took place without physical force. Among these other issues with the earnest resistance requirement, it is also sometimes physically impossible. "We know that a survivor often experiences tonic immobility when assaulted," says McGlamery. "He or she may not be able to speak or move."

Law enforcement, however, may not be aware of the latest research in sexual assault. And decades- (sometimes centuries-) old definitions of rape certainly do not take such findings into consideration. Until 2012, the FBI's definition of rape had remained unchanged since 1927, and bore a striking resemblance to the definition of rape in medieval English common law. American law is heavily indebted to English common law: Much of what we understand does and does not constitute a crime comes from the Middle Ages.

In colonial Massachusetts, where sexual assault laws were based on English common law, rape was called "ravishment" and defined as "carnal knowledge of any woman above the age of ten years against her will and of a woman child under the age of 10 years with or against her will." (This is still almost word for word the legal definition of rape in Georgia.) From the years 1698–1797, only 43 rape or attempted rape indictments were made in the commonwealth (later state) of Massachusetts. Early in the century, conviction rates were high, because it was believed that women wouldn't lie about something so serious. But as premarital sex became more common, "criminal courts increasingly ignored illicit sexual activity, except for a few offenses such as prostitution," writes Barbara S. Lindemann in the journal Signs. "In this atmosphere, men who brought accused rapists before the bar and who sat on juries would likely reevaluate older assumptions."

As the century moved on, a clear picture emerged of what kind of rape counted as "legitimate," to put it in Todd Akin's terms. Convictions were more easily obtained when the victim was of a higher status than the perpetrator. And "of the four defendants tried for rape in the 1760s," writes Lindemann, "three were found guilty of the lesser charge of attempted rape, and one was sentenced to death." The three found guilty a lesser charge were white; the one sentenced to death was black.

When viewed through this historical lens, Megan Rondini's case is all too familiar. By the end of the 17th century, rape was functionally defined as a crime perpetrated violently by someone outside of the victim's social circle, someone with less social capital than the victim, and someone with whom the victim would never normally associate. Investigators didn't believe Rondini because she drank with Bunn at her apartment before the assault (although she said she has no recollection of doing so). In 17th-century Massachusetts, Simon Tripp wasn't indicted on rape charges because his accuser smoked tobacco with him earlier that day. Previous consensual contact with the attacker was enough to cast doubt on the victim's lack of consent. If she didn't resist earlier contact, why believe she resisted the assault?

"I do think in rape cases, people sometimes are looking for a reason not to proceed," says Connolly. "And I think people use that [earnest resistance] statute as a reason." Connolly believes the only way forward in Alabama is to completely redefine rape in the state. "We [ACAR] would like rape to be defined not by how much or how earnest the resistance is," she says. "The case law, which is still better than the language in the statute, is still not acceptable—still looking for a no while we should be looking for the absence of a yes."

This is why Connolly and ACAR hope to introduce new legislation addressing the earnest resistance requirement in the next Alabama legislature, which will convene in 2018. "About two years ago we assembled a coalition of folks—judges, district attorneys, assistant district attorneys, law enforcement, and victims' advocates," says Connolly. "We worked through the statute piece by piece, making suggestions—including [about the] earnest resistance clause." The new proposed legislation is still in its infancy, according to Connolly. "The full panoply of changes hasn't been released widely yet," she says. But "we're hearing, unsolicited, from people all across the state that want to support the bill."