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Hoyer, Hon. Steny H., a Representative in Congress from the State of Mary-

Prepared statement
Lobel, Kerry, executive director, National Coalition Against Domestic Vio-

Richard, Mark M., Deputy Assistant Attorney General, Criminal Division,
U.S. Department of Justice.
Prepared statement.

Statement of Representative Bobbi Fiedler, a Representative in Congress from
the State of California....

Statement of the Association on American Indian Affairs, Inc...........




BX 83 Brdron




Washington, DC. The subcommittee met at 2:50 p.m., room 2237 Rayburn House Office Building, the Honorable John Conyers, Jr. (chairman of the subcommittee) presiding.

Present: Representatives Conyers, Gekas, and Coble.

Staff present: Thomas W. Hutchison, counsel; Raymond V. Smietanka, associate counsel.

Mr. CONYERS. The subcommittee will come to order.

Today we're receiving testimony on H.R. 596, a bill to revise Federal rape laws. This bill is identical to a bill reported by the subcommittee last Congress, which became part of a crime package that overwhelmingly passed the House, but, unfortunately, did not become part of the final crime package enacted into law.

There are three principal Federal rape statutes, and they date back to the 19th century. One simply makes it a Federal offense to commit rape, another makes it an offense to assault someone with the intent to commit rape. Neither specifically defines what constitutes rape.

The courts have interpreted the two statutes to incorporate the common law definition that requires the defendant to have sexual intercourse with a woman, quote, “forcibly and against her will,' unquote. The third statute makes it an offense to have sexual relations with-that is, carnally know-a female, not the defendant's wife, who is under the age of 16, commonly referred to as "statutory rape.” Because under these statutes only a woman can be the victim of a rape offense, Federal statutes do not proscribe homosex

ual rape.

The common law tradition from which the Federal statutes derive is not particularly inspiring. Rape laws ostensibly existed to protect women from having unwanted, coerced sexual intimacy, but the legal system frequently seemed to be more concerned with protecting males from conviction than with protecting females from criminally injurious conduct. An exception to this, of course, is in the classic instance where the victim is white and the accused is black.

The legal system's undue concern with protecting males is seen in several doctrines that developed in the rape law area. The spousal exemption doctrine, for example, held that a man could not rape his wife no matter how brutally the act was carried out. Rape was,


therefore, unique. It was the only crime of violence for which marriage was a defense.

While the Federal law of rape probably incorporates the spousal exemption doctrine, it does not incorporate two other doctrines that made obtaining rape convictions difficult—the utmost resistance and corroboration doctrines. The doctrine of utmost resistance, at its most rigorous, required not only that the victim struggle with an intensity reflecting her capacity physically to resist the unwanted sexual intimacy, but that, also, her efforts not diminish during the course of the offense itself. Such a doctrine served only to increase the risk of harm to victims.

The doctrine of corroboration, at its most stringent, required that there be evidence, other than the victim's testimony, corroborating the use of force, penetration, and the assailant's identity. The result was that if a woman was attacked and a rape attempt abandoned, the assailant could be convicted of assault on the basis of the victim's uncorroborated testimony. If the rape was carried out, however, the assailant could only be convicted if the victim's testimony was corroborated. The corroboration doctrine is, in my view, unnecessary, and I am pleased to note that today most States do not require corroboration.

Finally, evidence rules permitting wide-ranging inquiry into the victim's reputation and prior sexual activity served to discourage women from filing complaints and testifying at trial. Congress addressed this problem in 1977 when it enacted the Privacy Protection for Rape Victims Act and amended the Federal Rules of Evidence to limit the use of such evidence.

The bill before us today more completely modernizes and reforms the Federal rape statutes. It is drafted using gender-neutral terms and in such a way that the focus of a trial will be on the defendant's conduct, not on the victim's. It expands Federal rape law to reach homosexual rape and sexual abuse of another that goes beyond unwanted sexual intercourse, and it enlarges jurisdiction to include Federal prisons. Finally, it grades the offenses so that the more serious the conduct, the more serious the punishment.

The legal system's traditional approach to rape reflected a view of women and their place in society that may have been accepted in another day and age but, I think, no longer is. H.R. 596 brings Federal law into line with modern perceptions of woman's role in our society. It has bipartisan support and is backed by the Department of Justice.

I yield to Mr. Gekas before we recess for a vote pending on the floor.

Mr. GEKAS. I thank you, Mr. Chairman.

Yes, we're going to be leaving for another vote very shortly, but I wanted to emphasize that even

though rape is not of high incidence in Federal jurisdiction, as our colleague from Maryland will be quick to agree in his statement, I'm sure, nevertheless, that is no reason why we should not make it a properly constructed statute for the protection of our citizens within the Federal jurisdiction.

We've had testimony that perhaps the rate of incidence is about 80 to 150 a year. It's no small consolation, it's not consolation at all to those people to say that statistically they're not in a large group,

so we want to protect the potential victims of rape in the Federal jurisdiction.

I thank you, Mr. Chairman.
Mr. CONYERS. All right, thank you very much.

Our lead-off witness, when we return, will be the leader of this effort in the Congress, the honorable gentleman from Maryland, Steny Hoyer, who is the principal sponsor of H.R. 596.

The subcommittee stands in recess. [Recess) Mr. CONYERS. The subcommittee will come to order. We begin with Congressman Steny Hoyer of Maryland, who has been involved in this particular part of the criminal justice system for quite a while.

We in the Judiciary Committee appreciate your work because your concerns have always reflected the major issues before our committee. We're glad to have you here to begin our discussion of the present bill.

Mr. Hoyer.


CONGRESS FROM THE STATE OF MARYLAND Mr. HOYER. Thank you very much, Mr. Chairman.

My view is, that this bill, as introduced by myself and three cosponsors, is the bill that you reported out last Congress and is a good bill and we'll just try again. I very much appreciate your scheduling this hearing on H.R. 596, which is referred to as "The Sexual Assault Act of 1985."

I want to commend you, Mr. Chairman, and Mr. Gekas, and the other members of this subcommittee, for your strong and very capable leadership in the area of criminal justice, particularly with regard to rape, one of the most unreported crimes in our society.

H.R. 596, Mr. Chairman and Mr. Gekas, is the product of previous extensive hearings held in August and September 1984, both in Michigan and here in Washington. Those hearings were on, as you mentioned earlier, Mr. Chairman, H.R. 4876, which I introduced during the 98th Congress along with my colleagues, Bob Carr from Michigan, who was in California and came back late today, and thus could not testify; Bobbi Fiedler, who also could not be present, however, she has testimony that she is submitting for the record that I believe counsel already has.

Mr. CONYERS. Without objection her testimony will be entered into the record after yours.

Mr. HOYER. Thank you, Mr. Chairman.

In addition, Barbara Mikulski, who you and I just had the opportunity of talking with, indicates that she is submitting testimony.

The hearings that were held previously yielded numerous constructive suggestions and changes, many of which were adopted and incorporated into H.R. 4876 as amended. H.R. 596 is identical, as you pointed out, to the bill reported out by this subcommittee, which was introduced as a clean bill with 39 cosponsors, as a part of the major anticrime package last year.

H.R. 596 would replace the current law by defining a series of graded sexual offenses. A second significant change would be to re

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