In 2014, California Governor Jerry Brown signed into law SB 967, popularly known as the “affirmative consent” law. The bill sparked nationwide controversy because of a provision that required state-funded institutions of higher education to adopt an “affirmative consent standard” for use in sexual violence-related disciplinary hearings. Victims’ rights advocates, violence prevention groups and some feminist activists and scholars have made a strong case for the affirmative consent standard, arguing that it helps shift the burden of proof off the complainant, thus increasing the likelihood that perpetrators will be punished and more victims will seek justice. Opponents, on the other hand, argue that the affirmative consent standard violates the rights of the accused; is an unwanted government intrusion into citizens’ private lives; brands people engaging in “normal” sexual activity as perpetrators of sexual violence; and promotes conservative social norms around gender and sex. Opponents have argued that the affirmative consent standard should be struck down, while supporters have advocated for the affirmative consent standard to be implemented in other states.
When placed in the context of U.S. history, the fierce debate that has arisen about the affirmative consent standard is unsurprising. Rather, as Estelle Freedman, Edgar E. Roberts Professor in U.S. History at Stanford University, reveals in her book, Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation, the question of how to define and prosecute acts of sexual violence has been the subject of contentious debate since the U.S. nation-state’s formation. Moreover, these debates reveal the evolving boundaries of citizenship.
In the early 19th century, the definition of rape was limited to (1) the carnal knowledge of a woman when achieved by force and against her will by a man who was not her husband, and (2) any sexual activity with a child under age ten. Enslaved women were not covered by rape law, and even after slavery ended, the belief that black women could not be raped persisted in the dominant white culture. Women of any color who were deemed promiscuous had little credibility when they charged rape. Only a “chaste” white woman attacked by a “stranger” had a chance at achieving justice through the court system. According to Freedman, the laws at this time reflected the subordinate position of white women, racial/ethnic minorities, immigrants and children—all of whom held fewer rights and more tentative (if any) claims to citizenship than white men, and who had little recourse if they found themselves on the receiving end of these men’s sexual prerogatives.
While some people were more vulnerable to experience rape and less likely to receive protection from it, others were more likely to be accused of rape, Freedman finds. The labeling of groups as sexual predators, Freedman argues, correlates with their threat to the normative (white) social order. For example, the stereotype of the violent black rapist, while pre-dating Reconstruction, strengthened during and after it. Southern whites, in particular, drew on the myth of the violent black rapist to argue against granting recently enfranchised former slaves the same political and economic freedoms as white men. In the early 20th century, immigrants from southern and eastern Europe and Asia, and later white homosexual men, came to be seen as sexual threats to boys.
The complex and competing interests of groups impacted by sexual violence made any movement to expand the definition and prosecution of rape contentious, notes Freedman. After Emancipation, black women wanted to be protected from the sexual violence of men. At the same time, they opposed the growing practice of mobs lynching black men, often on the basis of spurious claims about the danger these men posed to white women. White women, on the other hand, wanted protection from predation by white men, but rarely questioned the specter of the black male rapist. Some even accepted it in order to bolster their own arguments for more robust citizenship. Moreover, says Freedman, variations in interests within these groups splintered the tactics upon which they relied to seek justice.
For example, according to Freedman, white radical free lovers of the time believed in women’s sexual independence and demanded the right to refuse marital sex. Women's rights advocates, on the other hand, were hesitant to name publicly the sexual violence that occurred within marriages, and concentrated instead on men who deceived young single women into having sex outside of marriage. Such men posed a threat to white women's precarious social standing, which was premised almost wholly on their ability to maintain a pure, chaste image. White women's advocacy resulted in the widespread criminalization of seduction in many states. Tied to lesser charges (in some cases, avoidable if the accused man agreed to marry the woman he had wronged), criminal seduction laws became a tool through which courts punished white men who were convicted of a range of sexual crimes with both fines and imprisonment. So did the revised statutory rape laws that suffragists supported, which increased the age of consent. Yet harsher penalties, including execution, were reserved almost wholly for black men—further strengthening the stereotype of the violent black male rapist, says Freedman.
In their advocacy, black women not only sought to be recognized as victims of sexual assault, but also to protest false rape accusations against black men. Along with the broader anti-lynching movement, they drew attention to the terrorization of black women by white male rapists. At the same time, Freedman observes, this focus could ignore the extent of intraracial rape.
Freedman’s work reveals that the definition of rape is not neutral, but the product of contestation between different groups premised on gendered, racial, class and nationality-based interests. The expansion of the definition of rape over the centuries reflects the expansion of women’s and children’s rights in a nation where they have traditionally been devalued. At the same time, variations in which women, children and men receive protection from sexual violence, and in which violators are held accountable for their actions, reveal that access to the full rights of citizenship has not been granted equally to all.
While Freedman analyzes movements to broaden and shift the definition of rape during the nineteenth and early twentieth centuries, her work remains relevant for considering the debate over the affirmative consent standard today. Her historical analysis of past efforts to redefine rape suggests that a full understanding of the affirmative consent debate must include an eye to the changing boundaries of citizenship and extant inequalities in the U.S.
“My research suggests strongly that contestations over the meaning of sexual violence will continue as long as social inequalities, particularly those based on gender and race, characterize American life,” she concludes. “In the meantime, past definitions will continue to haunt rape reform, at least until we recognize the depth of their historical legacies.”