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.

STATEMENT OF HON. STENY H. HOYER, A REPRESENTATIVE IN 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

place the term "rape" with the term "sexual abuse." In addition, it would affirmatively abrogate the common law marital exemption and would make the statute, "sex neutral;" that is, it would apply to both heterosexual and homosexual forceable circumstances and would expand the law to protect males as well as females.

The jurisdictional scope has been expanded to cover offenses committed against any person in official detention in a Federal facility. Also, an existing loophole in current Federal law regarding sexual assaults committed on Indian reservations against male Indians has been closed.

H.R. 596 adopts a gradation approach which is premised upon the theory that sexual offenses should be categorized and dealt with in terms of the seriousness of the offense, the degree of criminal activity undertaken by the assailant, and the extent of trauma or harm suffered by the victim. Penalties would then be based ap propriately upon the character and circumstance of the commission of the offense; that is, upon the dangerousness of and culpability manifested by the defendant and the degree of harm inflicted upon the victim. Also significant to a graded approach is that the offender may be found not guilty of an aggravated sexual abuse, yet guilty of a lesser offense such as sexual abuse or aggravated sexual contact, and the criminal record of that defendant will reflect the fact that the nature of the assault was sexual.

Now, Mr. Chairman, when I introduced reform legislation in the State of Maryland, we discussed absent such a gradation when the jury finds something other than rape such as assault and battery or some other assaultive conduct which does not reflect the fact that the nature of the assault was sexual, then when that person is subsequently convicted of a similar offense, the offender's criminal record does not reflect a similar prior offense. This is particularly pertinent as a factor in sentencing any repeat offender.

Mr. Chairman, I have submitted a statement for the record, which I would ask to submit in its entirety, which details all of the provisions of the bill. I don't want to take up the time doing that now, of course, and you have done an excellent job of that already. Mr. CONYERS. Without objection your statement will be included in the record.

Mr. HOYER. Thank you, Mr. Chairman. I do, however, want to address a certain section of H.R. 596, which, I understand, has caused

some concern.

There is a specific provision, section 2243, that deals with the sexual abuse of minors. Under H.R. 596, sexual abuse of a minor or ward involves a particularly vulnerable segment of our society, our children. Thus, under this section of H.R. 596, anyone who knowingly engages in a sexual act with a minor who has either attained the age of 12 but has not attained the age of 16, and is at least 4 years younger than the offender, commits sexual abuse of a minor and may be in prison up to 5 years or fined up to $250,000 or both. Let me stress that that is a consensual act. Obviously, a nonconsensual act is unrelated to age. It is only when you are dealing with consensual acts that you either presume the child does not have the ability to consent or that even where there is consent, society determines to afford greater protection to young children.

This section is intended to reach older, mature persons, that is the latter section I mentioned, who take advantage of younger, immature adolescents and children but not criminalize consensual sexual activity between persons of comparable age. This change in the law is not meant to encourage or endorse sexual activity among adolescents. Current statutory rape law is a sweeping statute, however, that prohibits sexual activity with a female under the age of 16 by anyone.

H.R. 596 puts forward a legislative proposal that attempts to offer a more reasonable approach to a very complicated social issue. The proposal changes the criterion upon which blame is assigned from gender, that is that only a female can be a victim, to age, that is the older participant. Traditionally, the law applied to only the male as the offender.

Under H.R. 596, culpability is assigned according to age. This assignment is premised upon the theory and social policy that the law should seek to prevent the victimization of adolescents and children due to their youth and immaturity.

Section 2243 also deals with another segment of society that may be vulnerable, wards in official detention over whom the offender has a special responsibility by virtue of his or her exercise of custodial, supervisory, or disciplinary authority. Although the sexual activities in such circumstances may be consensual, the law recognizes that official detention involves a coercive or at least intimidating environment.

The law also recognizes that authorities engaging in such activities with individuals over whom they have authority have committed an abuse of their legal responsibility which warrants criminal sanctions. The statute provides for maximum punishment of 1 year imprisonment or a $100,000 fine; again, this section dealing with consensual activity as opposed to forced, which would apply in any circumstance.

Mr. Chairman, at previous hearings several of the witnesses and certain members of this subcommittee expressed concern that the legislation not require that the victim's testimony be corroborated. You, Mr. Chairman, have referred to that today, as you have in the past, and have been a very strong advocate of ensuring that there be no necessity for corroboration. This doctrine, requires, as you've pointed out, that there be evidence other than the victim's testimony, corroborating the use of force, penetration, and the identity of the assailant. I want to point out emphatically that H.R. 596 in no way requires corroboration to prove the offenses under the bill.

Moreover, corroboration is not now, as you pointed out, Mr. Chairman, required in Federal prosecutions. Clearly, the corroboration doctrine is unnecessary. The policy behind it, of ensuring that there is sufficient evidence of an offense, is met by the requirement that the jury find beyond a reasonable doubt that the prosecution has proved every element of the offense. The proposed legislation carries forward current Federal law and imposes no corroboration requirement.

A second concern, Mr. Chairman and Mr. Gekas, which was raised at the previous hearing by witnesses and by Representative Boucher, was whether it would be necessary to show that the victim had offered utmost resistance. H.R. 596 does not require nor

is it intended to imply that a victim must offer utmost resistance, or that resistance or the lack thereof is an element decisive to the crime. Under traditional rape statutes, many courts demanded proof of utmost resistance by the victim to demonstrate nonconsent. Under current Federal law it is not necessary to show, however, that the victim resisted.

Furthermore, to require utmost resistance by the victim would be inconsistent with sections of H.R. 596 which characterize an assault as rape when the offender engages in sexual relations, for instance with an unconscious individual, a minor under the age of 12, or an individual unable to appraise the nature of such activity. One cannot demand utmost resistance under these circumstances.

In addition, resistance may prove to be an invitation to danger of serious bodily harm or death. A person should not be required to place himself or herself in a position of danger before an act of violence can be defined as a crime. Under H.R. 596 the prosecutor would not be required to offer proof that the victim resisted or resisted to the utmost.

In conclusion, Mr. Chairman, I want to again commend you, Mr. Gekas and other members of this subcommittee for scheduling this hearing today and for the leadership you have personally shown in the area of criminal justice.

Mr. CONYERS. Well, I think you have outlined the case for your legislation admirably, and we are very pleased that you could begin the discussion. I think we can move this quite easily.

I would like to discuss the part that deals with those who are incarcerated in Federal prisons.

One of the problems that has taken up a great deal of time and concern by this subcommittee is violence in prisons. Violence in prisons has always involved rape and attempted rape and other sexual acts that are prohibited, and frequently goes on at a very alarming rate. So, what we have now, here, is a very specific provision that may be another way of curbing violence in prisons and also diminishing this particular form of misconduct.

Mr. HOYER. Mr. Chairman, I agree with that. In addition, of course, rape now, as defined, is a crime committed solely by a male against a female, in that it is defined in terms of vaginal intercourse. Obviously, in prison situations you are usually dealing with homosexual activity as opposed to heterosexual. That is not to say that it can't happen; obviously, in a women's prison there are male guards. But as the States have done, including your own State of Michigan which, as you know, was a forerunner in the area of rape reform and served as a model for Maryland, California, and others; by making the crime neutral you expand protection to males where the crime is committed by a male against a male, or by a female against a male. Therefore, we make it a more appropriately applied statute across the board and provide for very, very serious penalties for aggravated sexual abuse in the prison situation.

Mr. CONYERS. I think that is a very important part of this legislation. I commend you for the thoroughness in which you've provided for this provision in your bill.

I yield now to the gentleman from Pennsylvania, Mr. Gekas.
Mr. GEKAS. Thank you, Mr. Chairman.

Thank you, Steny, for the excellent testimony.