Synopsis of the History of Rape and Sodomy

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The word rape has its roots in the Latin word rapere, which means to steal or seize. At early common law, rape was a capital offense. The elements of rape were forcible sexual intercourse, by a man, with a woman not the spouse of the perpetrator, conducted without consent, or with consent obtained by force or threat of force.  1 The rape prosecution required evidence of the defendant’s use of force, extreme resistance by the victim, and evidence that corroborated the rape victim’s testimony. The common law also recognized the crime of sodomy. In general, sodomy was the penetration of the male anus by a man. Sodomy was condemned and criminalized even with consent because of religious beliefs deeming it a crime against nature. 2

In the 1970s, many changes were made to rape statutes, updating the antiquated common-law approach and increasing the chances of conviction. The most prominent changes were eliminating the marital rape exemption and the requirement of evidence to corroborate the rape victim’s testimony, creating rape shield laws to protect the victim, and relaxing the necessity for the defendant’s use of force or resistance by the victim. 3 Many jurisdictions also changed the name of rape to sexual battery, sexual assault, or unlawful sexual conduct and combined sexual offenses like rape, sodomy, and oral copulation into one statute. Although some states still have statutes that provide the death penalty for rape, the US Supreme Court has held that rape, even child rape, cannot be considered a capital offense without violating theEighth Amendment cruel and unusual punishment clause, rendering these statutes unenforceable. 4

Sodomy law has likewise been updated to make sodomy a gender-neutral offense and preclude the criminalization of consensual sexual conduct between adults. The US Supreme Court has definitively held that consensual sex between adults may be protected by a right of privacy and cannot be criminalized without a sufficient government interest. 5