Cultic Studies Journal, Vol. 15, No. 1, 1998, page 5
Whether marital rape is a cognizable crime can also be a matter of common law, as opposed
to statutory law. For instance in Louisiana, the highest state court held, in 1899, that a
husband cannot be found guilty of rape on his wife. That decision is still good law today.16
In addition to the changes in state laws, institutional changes also occurred. Rape crisis
centers were established to provide rape victims with medical and emotional support, as
well as legal advocacy.17 Many hospitals now have services unique to the needs of rape
victims, such as attending to the immediate psychological crisis as well as collecting medical
forensic evidence.18 Specialized units in the district attorney‟s offices now handle rape
prosecutions and other sex crimes.19
B. Lingering Problems with the New Rape Laws Proving Lack of Consent
Despite the institutional and legislative improvements in prosecuting rapists, “rape
continues to be a significant crime problem,” according to the U.S. Department of Justice.20
Regardless of which statistical survey you read, the incidence of rape is high, particularly for
rapes committed by someone whom the victim knows. The Justice Department reported
that 48% of rapes in 1991 were committed by an assailant known to the victim, and the
National Women‟s Survey found that in the same year, 75% of rapes were committed by an
acquaintance, relative, lover, or husband of the victim. The reason for the discrepancy
between the reports is that it is difficult to obtain figures on sex crimes. Only one-half to
one-fifth of rapes are reported to the police.21
The problem of proving rape is exacerbated when the perpetrator of the crime is a
colleague, an intimate, or a spouse, because it is more difficult for prosecutors to convince
juries that the victim did not consent to the act. This would be no less true for a female
member of a cult who accuses another cult member or leader of rape because he would
likely be someone whom the victim knows, such as a friend, intimate, spouse, or cult
leader.
The new rape laws did not completely resolve the difficulties prosecutors share in
establishing the rape victim‟s lack of consent. Unlike other crimes where the intent of the
defendant is at issue, here the state of mind of the victim is critical. Whether there was
consent to the act turns on the victim‟s response. As law professor Susan Estrich stated:
Nonconsent has traditionally been a required element in the definition of a number
of crimes, including theft, assault, battery, and trespass. Rape may be the most
serious crime to allow a consent defense, but it is certainly not the only one. Rape
is unique, however, in the definition that has been given to Nonconsent --one that
has required victims of rape, unlike victims of any other crime, to demonstrate their
“wishes” through physical resistance. And the law of rape is striking in the extent
to which nonconsent defined as resistance has become the rubric under which all of
the issues in a close case are addressed and resolved. 22
There is one exception in the rape laws where consent is not an issue--statutory rape.
Prosecution for statutory rape has been, and in some states still is, defined under states‟
criminal laws as sexual intercourse by a male, of any age, with a female who is under the
age of majority. Statutory rape does not require a showing of lack of consent because of
the age of the victim.23 Some states, such as New York, have amended the definition of
statutory rape to make it gender neutral.24 Statutory rape is a legal recourse available to
cult victims just as it is to minors in society at large. A statutory rape prosecution on behalf
of a child cult member would not involve the thorny issue of establishing lack of consent in a
mind-controlled environment. In child sexual abuse cases, in which actual penetration may
not have occurred, physical force usually does not need to be shown when the crime
involves an adult perpetrator with a minor as the victim25 or a parent-child relationship.26
Whether marital rape is a cognizable crime can also be a matter of common law, as opposed
to statutory law. For instance in Louisiana, the highest state court held, in 1899, that a
husband cannot be found guilty of rape on his wife. That decision is still good law today.16
In addition to the changes in state laws, institutional changes also occurred. Rape crisis
centers were established to provide rape victims with medical and emotional support, as
well as legal advocacy.17 Many hospitals now have services unique to the needs of rape
victims, such as attending to the immediate psychological crisis as well as collecting medical
forensic evidence.18 Specialized units in the district attorney‟s offices now handle rape
prosecutions and other sex crimes.19
B. Lingering Problems with the New Rape Laws Proving Lack of Consent
Despite the institutional and legislative improvements in prosecuting rapists, “rape
continues to be a significant crime problem,” according to the U.S. Department of Justice.20
Regardless of which statistical survey you read, the incidence of rape is high, particularly for
rapes committed by someone whom the victim knows. The Justice Department reported
that 48% of rapes in 1991 were committed by an assailant known to the victim, and the
National Women‟s Survey found that in the same year, 75% of rapes were committed by an
acquaintance, relative, lover, or husband of the victim. The reason for the discrepancy
between the reports is that it is difficult to obtain figures on sex crimes. Only one-half to
one-fifth of rapes are reported to the police.21
The problem of proving rape is exacerbated when the perpetrator of the crime is a
colleague, an intimate, or a spouse, because it is more difficult for prosecutors to convince
juries that the victim did not consent to the act. This would be no less true for a female
member of a cult who accuses another cult member or leader of rape because he would
likely be someone whom the victim knows, such as a friend, intimate, spouse, or cult
leader.
The new rape laws did not completely resolve the difficulties prosecutors share in
establishing the rape victim‟s lack of consent. Unlike other crimes where the intent of the
defendant is at issue, here the state of mind of the victim is critical. Whether there was
consent to the act turns on the victim‟s response. As law professor Susan Estrich stated:
Nonconsent has traditionally been a required element in the definition of a number
of crimes, including theft, assault, battery, and trespass. Rape may be the most
serious crime to allow a consent defense, but it is certainly not the only one. Rape
is unique, however, in the definition that has been given to Nonconsent --one that
has required victims of rape, unlike victims of any other crime, to demonstrate their
“wishes” through physical resistance. And the law of rape is striking in the extent
to which nonconsent defined as resistance has become the rubric under which all of
the issues in a close case are addressed and resolved. 22
There is one exception in the rape laws where consent is not an issue--statutory rape.
Prosecution for statutory rape has been, and in some states still is, defined under states‟
criminal laws as sexual intercourse by a male, of any age, with a female who is under the
age of majority. Statutory rape does not require a showing of lack of consent because of
the age of the victim.23 Some states, such as New York, have amended the definition of
statutory rape to make it gender neutral.24 Statutory rape is a legal recourse available to
cult victims just as it is to minors in society at large. A statutory rape prosecution on behalf
of a child cult member would not involve the thorny issue of establishing lack of consent in a
mind-controlled environment. In child sexual abuse cases, in which actual penetration may
not have occurred, physical force usually does not need to be shown when the crime
involves an adult perpetrator with a minor as the victim25 or a parent-child relationship.26
