Review of State Sexual Assault Laws, 1997
October 7, 2023
Neal Miller, Esq., Principal Associate
Copyright 1997 Institute for Law and Justice. This document may be be distributed freely
as long as the document and its parts are not changed and as long as the copyright, grant
reference to the National Institute of Justice, and the disclaimer of Department of
Justice responsibility for content are included as shown here and below.
Grant No. 96-WT-NX-0007 from the National Institute of
Justice to the Institute for Law and Justice
This project was supported by Grant No. 96-WT-NX-0007 awarded by the National Institute of
Justice, Office of Justice Programs, U.S. Department of Justice. Points of view in this
document are those of the author and do not necessarily represent the official position of
policies of the U.S. Department of Justice.
Laws against rape and other sexual crimes against women are part of the common law
heritage that underlies today's criminal laws.
Recently, however, increased policy attention has been paid to the need for tougher sexual
assault laws. Penal code changes include increased penalties, establishment of new
criminal laws directed at marital rape, and elimination of statutes of limitations that
restrict prosecution after a period of time has elapsed.
Other, less traditional types of laws have also been enacted. These include laws intended
to ease the prosecution of persons charged with sexual assault crimes, increased services
to victims of sexual assaults, and sex offender registration laws.
Penal Code Enactments
Penal code amendments directed at sexual assault crimes include increased penalties, new
marital rape laws, and repeal of applicable statutes of limitations. Changes in the
penalty structure for sexual assault structures would require a detailed analysis that
compares state criminal laws across the various levels of crime that fall under the rubric
of sexual assault, from first-degree rape to misdemeanor touchings. Such an analysis would
be far too complex for the present analysis and will be left to others to undertake.
Marital rape laws have become increasingly common as states undertake to repeal the
doctrine that rape in the context of marriage is an impossibility. A separate report on
domestic violence crimes by this author has already undertaken this analysis. The reader
is referred to this report for further information on which states have adopted marital
rape laws, which states retain a marital exception rape law, and which states have both.
At least three states have repealed their laws that establish a statute of limitations for
sexual assault crimes involving rape. In at least one of these states, Florida, repeal of
the statute of limitations for rape was premised, at least in part, on the emergence of
DNA testing evidence whose significance is not affected by the passage of time.
More Effective Prosecution
Prosecution of sexual assault crimes can be weakened by the lack of willingness among
victims to undergo the ordeal of a criminal prosecution. To help ease victim fears, states
have enacted two types of laws: rape shield laws and counselor privilege laws.
Rape Shield Laws
Laws in 49 states limit the evidentiary use of a victim's prior sexual history as part of
an effort to undermine the credibility of the victim's testimony. Where the prior sexual
history is relevant, however, most states' laws authorize the judge to permit
cross-examination on this topic at the court's discretion. Only Arizona does not have a
rape shield law.
Counselor-Privilege Laws
Rape victims are often in need of counseling both immediately after the rape is reported
and for long-term treatment. While an evidentiary privilege against revealing the contents
of a treatment session with a physician, psychiatrist or clinical psychologist is
available in almost all states, there is no such privilege for counseling sessions with a
rape counseling specialist. In about half the states, legislation has recently been
enacted to establish such a privilege.
Other Prosecution-Related Laws
Improved effectiveness in the collection of evidence is an objective of efforts to improve
prosecution against persons charged with sexual assault. Among the legislative initiatives
identified are:
Increased Victim Services
Federal funding under the Violence Against Women Act includes a significant commitment to
increased services for victims of sexual assault. Often this includes funds for treatment
centers and battered women shelters. Two areas of specific concern to law enforcement have
been state payment of medical exam costs and AIDS testing of offenders.
Medical Exam Costs
The most important evidence of rape comes from the medical examination of the rape victim.
At this time, evidence of forced sexual intercourse will be gathered and semen samples
from the rapist retrieved. Thirty-eight states have enacted laws that explicitly provide
that the state will pay for the costs of the medical examination. However, in three of
these states, the state pays only for costs not covered by insurance. And in Pennsylvania,
hospitals are encouraged to bill insurance companies, but may not bill victims. Three
states also provide for defendant restitution of victim's medical costs to the state upon
conviction.
AIDS Testing
Fear of exposure to the HIV virus and AIDS is a common reaction among rape victims.
Indeed, there have been several instances of rape victims asking the rapist to use a
condom before committing the rape. Thus, 44 states have laws that require that offenders
charged or convicted of sexual assault be tested for AIDS and the victim be notified of
the test results.
Training in Victim Needs
Rape victims need a number of important services to help with the trauma of rape. These
services begin with the initial police contact and continue through short- and long-term
counseling. Ten states have laws that require training in handling rape victims for police
and prosecutors. These laws are, of course, in addition to other, victim rights laws that
provide generally for officer referral to services and more generalized training in
dealing with crime victims.
Sex Offender
Registration
One recent innovation in legislative efforts to reduce sexual assaults is the enactment of
laws requiring convicted sex offenders to register with local police in any community in
which they reside. These laws typically also provide that community members may have
access to local registration information. Notwithstanding the newness of these laws, every
state has now adopted some form of a sex registration law.
Other Sexual Assault
Laws
Miscellaneous laws that have recently been enacted against sexual assault include:
Summary
Enactment of the federal Violence Against Women Act in 1994 is illustrative of the policy
attention being given to sexual assault crimes. Thus, every state has recently passed laws
that (1) ease prosecution against persons charged with rape and other sexual assault
crimes and (2) increase services available to victims of sexual assaults. The types of
laws enacted include rape shield laws, sex offender registration requirements, and rape
counselor evidentiary privilege. From a law enforcement perspective, perhaps the most
important of these new laws is the development of evidence protocols for police and
hospitals handling victims of rape. With the advent of the use of DNA forensic testing
evidence, proper collection of biological materials can be critical to successful
investigation and prosecution. Legislators need to go further, however, in responding to
the implications of DNA testing. Repeal of statutes of limitations in rape cases to allow
DNA test results is one obvious such step. With respect to increased services to victims
of rape, it seems unconscionable that not every state has enacted laws requiring
governmental assumption of costs of medical exams to treat victims and gather evidence for
prosecution of the offenders.
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