Concept
Modern Reform Trends
Rape
Modern Reform Trends
The traditional offense had seven working parts: penetration of the vagina, by a man, with his penis, of a woman not his wife, against her will, accomplished by force or threat of violence, that was sufficient to overcome the resistance of a woman of ordinary resolution.1 Almost every one of those elements has since been altered, augmented, or eliminated by statute or case law.2 The Model Penal Code, covered earlier in this chapter, helped set the reform in motion by recognizing that the common-law definition created problems of meaning and proof. Most states nonetheless declined to adopt its definitions, because it kept sex-specific terms and marital immunity and still demanded prompt complaint and corroboration.3 The legislatures that wrote their own statutes went further, and their changes follow a consistent direction.
That direction comes from a diagnosis of how the older law worked. Under the traditional definition, force was judged in relation to the victim's response, which implicated the victim's own state of mind, so a defendant could use any amount of force and commit no crime unless the prosecution also proved nonconsent. Both ways of stating the element placed the burden of proof and of action on the victim.4 Nonconsent was proved through resistance and credibility, and courts and commentators historically distrusted complainants' testimony.5 Reformers agreed that the focus should move from the victim's behavior to the defendant's conduct, and they shared the goals of making prosecutions feasible and sparing victims much of the degradation of bringing a charge, though they disagreed about how best to redefine the crime.6 Four themes result: broader acts and parties, a weakened force requirement, offenses built on consent, and rewritten rules of evidence. Pennsylvania's chapter on sexual offenses serves as the running example for each. Reform has also reached beyond criminal codes, as in the federal civil remedy for gender-motivated violence that was struck down in United States v. Morrison because Congress lacked the constitutional authority to enact it.7
Broader Acts and Parties
The first reform widens the physical act that counts, the people who may commit the offense, and the people who may suffer it. The common-law act was vaginal penetration by a penis, and sexual assaults that involved no penetration generally fell into the category of sexual battery.8 Modern definitions of the act reach further. Pennsylvania defines sexual intercourse to include, in addition to its ordinary meaning, intercourse per os or per anus, with some penetration however slight, and it states that emission is not required.9 The parties changed in the same way. Where the common-law offense could imagine only men as perpetrators and women as victims, modern rape law covers assaults by men against men, by women against men, and by women against women.10 Pennsylvania's rape provision accordingly speaks of a “person” who engages in intercourse with a “complainant,” rather than of a man and a woman.11
The marital exemption has gone the same way. Most jurisdictions have abandoned it, so that a husband can now be prosecuted for raping his wife, and marital status is usually irrelevant.12 Courts and legislatures nonetheless still often presume consent to sex within marriage or long-term domestic relationships, which keeps the old assumption alive in a weaker form.13
The reason for the old shape was historical. Rape law was concerned primarily with preserving exclusive control over women's reproductive capacities, which explains why penetration that could result in pregnancy was the focus and why a husband could not rape his wife.14 Once the law treats the complainant as the person injured, the wrong is a violent invasion of the individual's basic right to decide with whom to have sex.15 That wrong does not change with the body part involved, the sex of the actor, or the actor's marriage to the victim, so the modern statutes drop those distinctions. The 1962 Code moved only part of the way. It treated all forms of penetration of the female by the male, including oral and anal, as rape, but it kept the male actor, the female victim, and marital immunity.16
The reform has a boundary. In most jurisdictions “rape” still requires some act of penetration, and assaults without penetration are usually categorized as sexual battery. Some jurisdictions have enlarged the label rape to cover more conduct, while others kept it narrow and created a range of separate sexual offenses.17
Students who learn that the reforms made rape gender-neutral sometimes conclude that they also made it contact-based, yet penetration remains the dividing line between rape and sexual battery in most jurisdictions.
Redefining Force
Two linked changes reshape the force element. The kind and amount of force that counts has been loosened, and the resistance requirement that once proved it has almost vanished. On force, the common-law element survives in most jurisdictions but in weakened form: many states now provide that the minimal force necessary to accomplish penetration is enough, and some courts have held that unlawful nonviolent threats, such as blackmail, can support a rape charge.19 Pennsylvania defines forcible compulsion as compulsion by physical, intellectual, moral, emotional, or psychological force, either express or implied.20 On resistance, the same statute provides that the alleged victim need not resist, with a proviso that the defendant may still introduce evidence that the alleged victim consented.21 A few jurisdictions still ask for a clear and unequivocal expression that advances are unwanted, but otherwise the duty to resist has all but disappeared.22
The resistance rule existed because traditional law treated resistance as the outward sign of nonconsent, a device for deciding whether a woman had actually consented, and many jurisdictions demanded resistance to the utmost.23 The practical effect was that the defendant's liability turned on what the victim did rather than on what the defendant did. Reformers wanted the defendant's forceful or assaultive conduct to carry independent weight, with force understood as an invasion of bodily integrity, and they urged abandoning resistance in order to break the connection between the two.24 The 1962 Code was a partial step. It focused on objective manifestations of aggression by the actor and made neither nonconsent nor resistance an element.25 Even so, its commentary reads the requirement that the actor compel submission to demand more than a token initial resistance.26
The litigated edge of the reform is how little force suffices. In State in the Interest of M.T.S., the trial court found that the complainant had consented to heavy petting but not to the act of intercourse, and the question became whether New Jersey's definition of sexual assault as penetration accomplished with “physical force or coercion” required force beyond the penetration itself.27 The State read physical force to cover any involuntary sexual touching, while the Public Defender read it as force used to overcome lack of consent, a reading that equates force with violence.28 The opposite worry appears in Commonwealth v. Mlinarich, where the court refused to treat any threat as forcible compulsion. An elastic reading, it reasoned, would convict a man who threatens to withdraw support from a destitute widow or who extorts sexual favors on threat of discharge from a job, and it would give jurors almost unlimited discretion. The court therefore required actual physical compulsion or violence, or a threat of it sufficient to prevent resistance by a person of reasonable resolution.29 Pennsylvania's definition today, which names intellectual, moral, emotional, and psychological force, reaches farther than that physical-compulsion reading.30 Its rape provision still lists a threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, which echoes the Code's ordinary-resolution yardstick in gender-neutral terms.31 The 2021 revision of the Code keeps its nonviolent-coercion offense but drops the reference to resistance and makes certain threats, such as a threat to accuse someone of a crime, sufficient without regard to their effect on an ordinary person.32
Answers that report the reform as an abolition of the force requirement overstate it, because force survives in weakened form in most jurisdictions, and what has largely disappeared is the demand that the victim resist.
Consent-Based Offenses
The third reform changes what the core wrong is said to be. The common-law requirement that intercourse be against the woman's will is regarded by contemporary courts and legislatures as too narrow, and the law in most jurisdictions now focuses on the absence of consent.34 Pennsylvania shows the resulting structure. Rape, a first-degree felony, covers intercourse accomplished by forcible compulsion or its threat, with an unconscious or unaware complainant, after covert drugging, or with a complainant whose mental disability prevents consent. Beneath it, sexual assault, a second-degree felony, covers intercourse with a complainant without the complainant's consent where the conduct falls outside the rape provision.35
The reason for building an offense on consent lies in the burden the older law imposed. Some reformers advocated defining rape as unconsented-to intercourse, and others urged eliminating any reference to consent, but all shared the premise that the burden of showing nonconsent should not fall on the victim.36 The aim was therefore to keep consent in the law while removing the victim's task of proving through resistance that it was absent. An offense defined by nonconsent also reaches intercourse that a force-based definition leaves uncharged, namely the encounter in which the defendant needed no force beyond the act itself. That reach is why the offense sits below forcible rape in the grading scheme rather than replacing it.
Making nonconsent the core of the offense moves the hard question to the defendant's mind. A court must decide whether the perpetrator must intend intercourse without consent or whether knowledge or recklessness will suffice, and whether consent may be assumed absent a clear protest or absence of consent must be assumed absent a clear declaration of consent.37 In acquaintance cases the question is often not whether consent was given but whether the prosecution can prove that the defendant knew it had not been, and because mens rea must be proved beyond a reasonable doubt, miscommunications frequently end in acquittal.38 Consent is also specific to the act, as the M.T.S. trial court's separation of consent to petting from consent to intercourse shows.39
Evidentiary Reforms
Traditional rape prosecutions carried distinctive evidence rules that made a complainant's word hard to credit. Under the traditional formulation attributed to Lord Hale, a woman was deemed a credible witness only if she was of good fame, disclosed the injury immediately, bore signs of injury, and cried out for help.41 The Model Penal Code itself required prompt complaint and corroboration of the allegation.42 Reform statutes dismantle these rules one by one. Pennsylvania provides that prompt reporting is not required, that a complainant's credibility is judged by the same standard as any other complainant's, that the testimony need not be corroborated, and that no instruction may caution the jury to view the complainant's testimony differently from other complainants' testimony.43 Most jurisdictions have also passed rape shield laws that limit cross-examination into a complainant's personal history, though complainants often still feel that they are the ones on trial.44
The reason these rules mattered lies in how rape cases are tried. Many defendants admit that sexual contact occurred and maintain that it was consensual, which makes the complainant's credibility the central question at trial.45 There are usually no other witnesses, so a corroboration requirement or a cautionary instruction operates as a heavier burden than the prosecution carries in any other case. The older rules rested on an assumption that women lie about nonconsent to blackmail men, to explain the discovery of an affair, or because of psychological illness.46 Reform removes the special rules that embodied that assumption and treats the complainant like any other.
The reform does not strip the defendant of ordinary evidence law. Pennsylvania's provisions on prompt complaint and on resistance each contain a proviso preserving the defendant's right to introduce evidence, such as a failure to report promptly or the complainant's consent, if the ordinary rules of evidence admit it.47 What disappears is the rape-specific hurdle, and the ordinary rules still apply to both sides.
Broader Acts and Parties
The common-law definition of rape carried three limits that have little to do with whether the victim was harmed. The offense required penetration of the vagina by the penis, it could be committed only by a man against a woman, and it did not reach a husband's intercourse with his wife. The reasons for those limits explain why reform could loosen them together. Historically, rape was treated as an injury to the fathers and husbands who controlled women's reproductive capacities, which is why the law attended to vaginal penetration and cared less about sexual assaults that could not result in pregnancy.49 Once the offense is understood as a violation of the victim, the harm no longer depends on whether pregnancy is possible, on the sex of the actor or the complainant, or on whether the two are married, and each of the old limits loses its justification.
The act itself is the first limit to give way. Pennsylvania's definition of sexual intercourse, for example, includes intercourse by mouth and by anus in addition to the ordinary meaning of the term, requires some penetration however slight, and makes emission unnecessary.50 The Model Penal Code moved in the same direction early, treating all forms of sexual penetration of the female by the male, vaginal, oral, and anal, as rape.51 Yet the Code kept a male actor and a female victim in its terms and kept marital immunity for husbands, so its broader act did not carry the other reforms with it.52 That separation matters in analysis, because a statute can widen the act without widening the parties, and each question has to be answered from the statute's own text.
Gender-neutral drafting removes the second limit. Pennsylvania's rape provision applies to a person who engages in sexual intercourse with a complainant, and neither noun carries a sex.53 Common-law rape could only imagine men as perpetrators and women as victims, whereas modern law reaches assaults by men against men, by women against men, and by women against women.54 Some states have gone further, renaming rape as sexual assault and drafting the statute in gender-neutral terms. Marital status is now usually irrelevant to the offense, and the victim's gender sometimes is too.55 The trend reaches past forcible rape, since a dissent in the Supreme Court's review of California's male-only statutory rape law counted at least 37 states with gender-neutral statutory rape laws.56
The marital exemption is the third limit, and the premises behind it show why it fell. Under the common-law rule a married man could not be guilty of raping his wife, a result grounded in the wife's implied consent to intercourse, the idea of the wife as property, the fiction that spouses form a single legal unit, and judicial reluctance to disturb family privacy.57 Each premise depends on a view of marriage that modern law has abandoned. In People v. Liberta, New York's highest court held that the exemption violated equal protection because no rational basis distinguishes marital rape from nonmarital rape, and it reasoned that the privacy doctrine protects only consensual acts, so privacy could not shelter forced intercourse.58 Many jurisdictions have now abolished or limited the exemption, and the vast majority of states have statutes forbidding a spouse or cohabitor to compel the other to have intercourse by force or by a threat of force.59 Courts applying those statutes require only general intent plus the act, exactly as in any other rape prosecution.60
The exemption has not disappeared everywhere, however. Some states bar a husband's resort to it only when the spouses live apart or legal proceedings have begun, and others treat marital rape as a lesser, separate offense.61 Even where the exemption is gone, courts and legislatures still commonly presume consent to sex within marriage or long-term domestic relationships, a residue of the exemption covered earlier in this chapter.62
Reform widened the act and the parties, but a line remains on the other side of the act. Jurisdictions disagree about which violations deserve the label rape: some have expanded the term, while others kept a limited definition and created a range of other sexual offenses.63 In most places rape still requires some act of penetration, and an assault without penetration is usually categorized as sexual battery.64 An answer that equates gender neutrality with contact-based liability goes wrong for that reason, because penetration still divides rape from sexual battery in most jurisdictions.
Redefining Force
Under the traditional definition, force was gauged in relation to the victim's response, which in turn implicated her state of mind. A defendant could use all the force imaginable and commit no crime unless the state also proved that the victim had not consented.66 Resistance filled the gap. The victim's struggle was the outward sign that the act was against her will and that enough force had been used, so a victim who did not fight left the prosecution without proof of either element.67 Reform attacks that linkage in two moves. It changes what counts as force, so that the defendant's own compulsion is what matters, and it removes the resistance duty that had made the victim's conduct the measure of the offense. This section follows those two moves and then turns to the jurisdictions that have not made them.
Each move has its own reason. Redefining force removes an incentive built into the old structure: a victim who judged that fighting back would provoke worse violence, or who simply froze, damaged her own case, so the safest course for the victim was the one that most helped the defendant. Reformers answered by giving the defendant's forceful or assaultive conduct independent significance and by understanding force as an invasion of bodily integrity, rather than something defined by how the victim reacted.68 Abolishing the resistance duty rests on a functional point. Most states do not require resistance from a victim confronted with a threat of serious physical harm, because resistance would be futile and potentially dangerous.69 Many victims also respond to sexual trauma with mental dissociation and physical paralysis, which can destroy the ability to resist physically or to say no.70 The old structure had a further flaw. Where no force was needed beyond the act itself, courts had to invent constructive force, and the better analysis treats force as evidence that intercourse was without consent rather than as a freestanding element.71
Pennsylvania shows what a thorough redefinition looks like, and it is offered here as one state's approach rather than a national rule. Its statutes define forcible compulsion as compulsion by physical, intellectual, moral, emotional, or psychological force, either express or implied.72 Each added form moves force away from the violence the old law pictured and toward the pressure that produced the submission, so a defendant who never raises a hand can still be found to have used forcible compulsion. A separate section provides that the alleged victim need not resist the actor, with a proviso that the defendant may still introduce evidence that the victim consented.73 Pennsylvania case law adds that the force needed is only what suffices to establish lack of consent and to induce the victim to submit without additional resistance, and that the degree required is relative to the facts of the case.74
A broad definition of force carries a cost, and the cost explains why some courts resist it. In Mlinarich the court refused to read forcible compulsion so that any threat converts intercourse into rape. It warned that such a reading would reach a man who supports a destitute widow and threatens to withdraw support unless she submits, or a person who extorts sex by threatening to fire someone or to disclose an adultery, and it would leave jurors almost unlimited discretion over which threats and promises count.75 The court held that rape requires actual physical compulsion or violence, or a threat of it sufficient to prevent resistance by a person of reasonable resolution.76 That reading is narrower than the statutory definition quoted above, so which version of a statute a court was construing matters when you read a decision. The Model Penal Code took a middle path in its offense of gross sexual imposition, which reaches threats that would prevent resistance by a woman of ordinary resolution but excludes inducements that are part of a bargain.77
Pennsylvania's text is not the national baseline. Statutes vary widely on force and nonconsent. One survey found eight states whose statutes resemble the common-law definition by setting out both force and absence of consent, seven focused only on nonconsent, and nineteen requiring that the victim submit, be overcome, or be compelled by force or forcible compulsion.78 Descriptions of the overall trend differ in emphasis. One account says that the statutes of the vast majority of states still require both force and nonconsent and that courts usually demand the victim's reasonable resistance. It illustrates the point with Mike and Adrienne, in which Mike penetrated Adrienne while she stayed profoundly passive. He never beat or threatened her, she did not resist to the utmost, and his conduct would still not meet the current definition of force in most states.79 Another account says that force survives in most places only in weakened form, met by the minimal force needed to accomplish penetration or by nonviolent threats such as blackmail, while the duty to resist has all but disappeared, although some jurisdictions still require a clear expression that advances are unwelcome.80 The meaning of physical force is itself contested. In M.T.S. the State read the New Jersey statute to reach any involuntary sexual touching, while the defense read it to require force used to overcome lack of consent.81 Because the accounts conflict, the controlling answer comes from the jurisdiction's own statutory words, and abolishing the resistance rule does not abolish the force element.
Consent-Based Offenses
The force and resistance rules just examined share a design flaw that reformers came to see as the deeper problem: they make the complainant's conduct the measure of the offense. Under the traditional structure, the State had to prove both force and that the intercourse was against the woman's will, and a woman above the age of consent had to affirmatively withdraw her consent before the intercourse counted as against her will.83 If the wrong is sex without permission, that arrangement aims the law at the wrong person, since a complainant who froze or who did not fight back weakened the prosecution through a reaction the offense should not penalize. Reformers therefore shifted the central question toward whether permission was given. As one court described the reform goal, it was to eliminate the burden placed on victims to prove they had not consented, while leaving consent in place as the central question.84
Pennsylvania's statutes show the consent-based approach in codified form, placed beside a conventional rape offense. First-degree rape under § 3121 requires sexual intercourse with a complainant by forcible compulsion, by a threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, with a complainant who is unconscious or known to be unaware, after covert drugging meant to prevent resistance, or with a complainant whose mental disability makes consent impossible. It is a felony of the first degree, punishable by up to twenty years.85 Section 3124.1 then supplies the residual offense: except as provided in the rape section, a person who engages in sexual intercourse with a complainant without the complainant's consent commits a felony of the second degree, punishable by up to ten years.86 The second offense names no force, no threat, and no resistance, so lack of consent alone suffices. The two grades fit together by function. The first-degree provision collects the circumstances in which consent is overridden or impossible, and the second-degree provision catches the remaining nonconsensual intercourse that would otherwise escape the criminal law because no compulsion could be proved.
Statutes elsewhere reach consent in different ways, and the difference changes what must be proved. Slightly less than half of the states use phrases such as 'without her consent' or 'against her will' in setting out the elements, while the rest define the crime through prohibited intrusions such as force, although a requirement that the victim be 'compelled' or 'overcome' keeps questions about consent close to the surface.87 Where a statute demands both force and nonconsent, the two requirements are cumulative rather than alternative, so the force element could be established beyond doubt and the prosecution would still fail for want of proof of nonconsent.88 A consent-based offense removes that second gate by making nonconsent the operative element. The label also varies. Several states abolished the crime of rape and replaced it with sexual assault, defined as intercourse with another person who does not consent, yet the same phrase in a second sense describes offensive sexual contact short of rape, so the statute's own definition controls.89
Two matters from the materials show how a consent focus changes the analysis. In M.T.S., the trial court found that the complainant had consented to heavy petting but had not consented to the sexual act itself, and on that finding it concluded that the State had proved second-degree sexual assault.90 Consent is therefore specific to the act, and agreement to one kind of intimacy does not carry over to intercourse. The facts recited in United States v. Morrison show how a spoken refusal operates: the accused admitted at a university hearing that he had sexual contact with the complainant although she had twice told him 'no,' and the university's judicial committee found him guilty of sexual assault under its policy.91 Where contact is admitted and a refusal is on the record, a standard keyed to 'no' resolves the consent question without any inquiry into force or struggle.
Once nonconsent is the core of the offense, the next question is how a factfinder decides that consent was absent. Scholars who regard force and resistance as archaic have proposed two ways of understanding nonconsent as the heart of the crime, usually called the No Model and the Yes Model.93 Both are interpretive proposals for reasoning about what consent should require, and neither is the law of any jurisdiction. The bare word 'consent' in a statute does not tell a factfinder how to treat a complainant who said nothing, and the two models fill that gap in opposite ways.
Under the No Model, a complainant who says 'no' to advances has not consented, and penetration after that point is rape; without a refusal, the law presumes consent and penetration is not rape.94 The model dispenses with both force and physical resistance and asks instead for a verbal refusal, which matches the ordinary understanding that saying 'no' shows lack of consent.95 Its appeal is a clear marker, the spoken refusal, that a factfinder can locate. Its weakness appears with the passive complainant. Many victims respond to sexual trauma with mental dissociation and physical paralysis, and the same trauma that destroys the power to resist can destroy the ability to say 'no,' so a complainant who stays silent is treated as having consented.96
The Yes Model reverses the presumption. The actor must obtain affirmative permission before penetrating, and if the complainant expresses no 'yes' of any kind, the law presumes nonconsent and penetration is rape.97 Silence alone cannot be a 'yes,' but a 'yes' can be expressed through nonverbal behavior, so silence combined with passionate kissing, hugging, and sexual touching may support an inference of actual willingness.98 That concession exposes the model's own difficulty. It does not say what counts as a 'yes,' and where conduct is read as permission, the model begins to resemble the No Model's treatment of silence as consent. The Yes Model therefore protects the passive complainant through its starting presumption while leaving open how much the actor may infer from conduct.
Because both models turn on what the complainant communicated, the next question concerns what the defendant must have understood, and that is a question of mens rea. Moving from 'against her will' to absence of consent, as most jurisdictions have, raises several issues. Must the defendant intend intercourse without consent, or do knowledge and recklessness suffice? May the defendant assume consent absent a clear protest, or must the defendant assume nonconsent absent a clear declaration of consent?99 The two models answer the last question in opposite directions: the No Model lets an actor proceed until a refusal is voiced, while the Yes Model puts the risk on the actor who proceeds without permission. How the burden falls also matters. Where lack of consent is an element, the prosecutor can try to prove that the defendant knew or should have known the complainant did not consent, whereas if consent is an affirmative defense, the defendant must establish a reasonable belief in consent.100
The difficulty is a familiar one in battery law, where consent must be communicated, communication can misfire, and a rule asking whether the defendant reasonably relied on a manifestation of consent can excuse a defendant even though the other person never meant to consent.101 Proof is hardest in acquaintance cases, where defendants commonly admit contact but claim consent, which makes the complainant's credibility central.102 The live issue there is often the defendant's knowledge, and because the prosecutor must prove mens rea beyond a reasonable doubt, miscommunications or misunderstandings often lead to acquittal.103
Evidentiary Reforms
The suspicion that narrowed the definition of rape also shaped how rape cases were tried, and reform reached both. In the seventeenth century Lord Chief Justice Matthew Hale framed the attitude in a maxim that became one of the most frequently quoted passages in American law: rape is an accusation easily made, hard to prove, and harder for the accused to defend, however innocent the accused may be.105 That outlook accounts for the narrow definition of the offense and for a set of procedural and evidentiary rules found in rape prosecutions and nowhere else.106 Those rules belong to evidence law, so what follows compares them with their modern replacements in outline only.
Two of the traditional rules governed what the prosecution had to show about the complainant's own conduct and the support for her account. The first concerned timing: the absence of a prompt complaint was admissible to suggest that a later accusation was not genuine.107 That inference assumes a genuine victim speaks at once, yet sexual assault is widely underreported, in part because survivors may feel, or be made to feel, ashamed or stigmatized.108 The second concerned corroboration: some jurisdictions required that the complainant's testimony be supported by other evidence.109 Because most rapes occur without witnesses, a demand for independent proof defeats a true accusation as readily as a false one.110 Each rule aimed at screening out false charges, but each operated on a feature, delay or the absence of a second source, that true accounts frequently share.
The other two traditional rules shaped how the complainant was tested at trial. Her prior sexual conduct was admissible as evidence of consent and to impeach her credibility, and many jurisdictions instructed juries that the offense is easily charged and hard to disprove, so that the victim's testimony called for especially close scrutiny.111 Both rules mattered most in the cases that dominate the docket, because defendants frequently admit sexual contact and claim consent, which makes the complainant's credibility the central question and invites probing of her personal history.112 The Model Penal Code kept the prompt-complaint and corroboration requirements and rested on a view that rape claims are often groundless, which is one reason most states declined to adopt its definitions.113
The modern approach dismantles most of this apparatus. The prompt-complaint concept has been broadened and the fact of a complaint is now admissible to support the prosecution, most jurisdictions have abolished corroboration requirements, rape shield laws exist everywhere, and cautionary instructions have been largely abandoned.114 Pennsylvania's statute shows the pattern in text. Section 3105 provides that prompt reporting to public authority is not required, section 3106 provides that a complainant's credibility is judged by the same standard as any other complainant's, that the testimony need not be corroborated, and that no instruction may caution the jury to view it differently, and section 3107 provides that the victim need not resist.115 The wording of § 3105 repays attention, because the same section preserves a defendant's ability to offer evidence of a failure to report if the ordinary rules of evidence would admit it, so delay evidence is not barred by the statute itself.116 The reform removes the requirement that a victim have complained promptly and leaves the ordinary rules of evidence to govern what the jury hears about timing.
The reasons for these changes can be read from the structure of the old rules. The complainant is frequently the prosecution's central witness: in acquaintance cases the contest is over consent and credibility, and in stranger cases such as Neil v. Biggers, where the conviction rested in part on the victim's station-house identification of her assailant, her testimony establishes who committed the act.117 Layering a delay rule, a corroboration rule, and a warning to the jury on top of that dependence adds three further barriers to a prosecution that already turns on one person's word. The reformers' premise was that the complainant should be judged by the standard applied to any other complainant, since those barriers fail true accounts together with false ones.118
The most visible reform is the rape shield law, which limits what the defense may offer about a complainant's sexual history. Federal Rule 412 makes evidence offered to prove an alleged victim's sexual behavior or sexual disposition generally inadmissible. In criminal cases it carves out narrow exceptions for evidence that someone other than the accused was the source of semen or injury, for prior sexual behavior between the victim and the accused offered on the issue of consent, and for evidence whose exclusion would violate the defendant's constitutional rights. The rule answers two distinct dangers. A trial about the complainant's past invites the factfinder to judge her moral character and to treat her as someone who invited sex whether or not she consented on this occasion, and it tempts the factfinder to infer present consent from consent to other partners at other times, an inference that carries less weight than it appears to.119 Shield laws limit cross-examination only to a degree, and survivors often report feeling that they are the ones on trial.120
Only the evidence rules differ between the two regimes in that scene, since the sexual facts are identical. Evidence law also restrains the prosecution in these cases: expert testimony about Rape Trauma Syndrome, a cluster of symptoms and behaviors seen after sexual assault, cannot be used to prove that a rape occurred, because those symptoms and behaviors are caused by a broad range of events.122