Roman Polanski and the History of “Rape-Rape” in America

By now, many readers of this website are probably familiar with Whoopi Goldberg’s remarks on the television show “The View” regarding the arrest of Roman Polanski. According to Goldberg the charges against Polanski were not “rape rape.” The core of Goldberg’s argument is that Polanski accepted a plea bargain to the charge of “having sex with a minor” aka statutory rape. So, according to Goldberg, this isn’t “rape rape” — i.e. a sexual assault on an adult woman. If the 13-year old had been over the age of consent (16), Goldberg seems to suggest, then it wouldn’t “really” be rape.

In order to explain why this line of argument is faulty, one needs to understand history of rape law in the twentieth century. The Women and Social Movements in the United States database has an excellent document project on the age of consent campaign at the turn of the twentieth century. Then as now, the “age of consent” referred to the age at which a girl could consent to sexual relations. A man who had sex with a girl below that age could be tried for statutory rape.  In the late nineteenth century the age of consent in many states was as low as ten or twelve, and in Delaware the age was seven. This extremely low age of consent was the result of colonial laws regarding rape. As Cornelia Hughes Dayton explains in Women Before the Bar, when women charged “rape,” there was a presumption that they were telling the truth. The penalty for rape was death. The penalty for assaulting a child was much less. Therefore, the child was more protected with a lower consent age.

During the nineteenth century, the presumption changed: men presumed women were lying when they made charges of rape, and judges began to interpret the level of resistance a woman had to make for her to charge rape. She had to believe she was near imminent death before she stopped fighting back. Thus, children faced great danger by having the age of consent so low. If women were not believed to have been raped unless they came back with maimed bodies to prove they resisted, almost no one would be “raped” according to the law.

Hoping to protect young girls from sexual predators, Progressive era reformers started a campaign to raise the age of consent to at least sixteen, and preferably eighteen. They based their work on the stories in circulation about middle- and upper-class men seducing and impregnating young, white, single girls who were flocking to the cities to find work. Some of these girls were also victims of “white slavery” (what we now call sex trafficking) and were lured to the city by the promise of employment, only to find that the job was prostitution. By 1920, most states had passed laws establishing sixteen or eighteen as the age of consent.

Now, as with other Progressive-era reforms, there were shortcomings to this age of consent campaign. Most reformers were white, and overlooked the plight of African-American girls and women. The reasoning for this was that by nature, all African-American women were believed to be hypersexual; hence it was impossible to rape a black girl or woman because men could not resist these “temptresses." Ida B. Wells unsuccessfully tried to dispel this myth.

The age of consent campaign was also based on the belief in compulsory sexual purity for unmarried girls and women. In fact, it was at this time that the notion of “sexual delinquency” was conceived. Moral reformers created homes for “delinquent” and “wayward” girls — ostensibly to “protect” these girls from sexual predators, but also to “reform” their behavior — i.e. make them into virtuous, pure, respectable women. This resulted in a major asymmetry in punishment: men convicted of statutory rape typically served 2-3 years in prison. A young girl sentenced to a reformatory for sexual delinquency (which included assault by an adult male), was incarcerated until she reached the age of majority (usually 21). So, for example, a fourteen year-old would serve seven years in a reformatory.

Now, what about “rape rape” — i.e. sexual assault of women over the age of consent? Well, that too depended on the race of the victim and perpetrator. If a white woman charged a black man with rape, then the myth of black male hypersexuality and the culture of white male chivalry ensured that the man would be found guilty, or more likely, lynched before he even came to trial. For white men, it was much easier to get away with the crime of rape, since a woman’s previous sexual experience could be admitted as evidence. So, if a woman was a “slut” — i.e. had intercourse outside of marriage — then it was obviously her fault she got raped because she was “asking for it.” The so-called sexual revolution of the 1960s and early 1970s in some ways actually made this situation worse for awhile: teenage and young adult women reclaimed their sexual agency yet the criminal justice system still assumed that girls who “slept around” deserved to get raped, or rather, that it wasn’t “really” rape because the girl led the guy on.

By the 1970s, this assumption was becoming increasingly untenable. As I’m finding in my work on the history of emergency contraception, health care workers  along with feminist  activists, fought for more humane treatment of rape victims by police officers, emergency room personnel, and the criminal justice system. As Estelle Freedman wrote in a recent review of the feminist classic, Susan Brownmiller's Against Our Will, “our view of rape has transformed since the 1970s, from an unavoidable and unmentionable price of being female to an unacceptable crime against the human rights of women.” During the 1970s and 1980s, feminist groups created rape crisis centers, and courts declared that a woman’s sexual history was irrelevant in a rape trial. In the 1990s, there was increasing awareness of the problem of date rape, and marital rape became a crime in all 50 states.

The Polanski case occurred when definitions of rape were still evolving, and there was still a tendency to blame the victim for tempting a man. So, if Samantha Geimer had been an adult, her sexual history probably would have been used as a way to weaken or dismiss the case against Polanski. However, by today’s standards, what Polanski did was not just statutory rape, but actual “rape rape.” If Geimer had been over the age of consent,   Polanski would still be charged with rape because she said no, multiple times, and was under the influence of drugs and alcohol.  The fact that so many individuals in the United States and abroad are defending Polanski is a reflection of a broad misunderstanding of major changes in legal definitions of what constitutes rape in the United States.