involved in community activities. She spent six years as a regent for the University of New Mexico; served on the board and executive committee of the Greater Albuquerque CHAMBER OF COMMERCE ; was a director of the New Mexico Symphony Orchestra; and was a board member with numerous other professional and civic organizations. At the same time, Ramo was active in the state bar of New Mexico, chairing its Sect ion of Business, Banking, and Corpora- tions, and was on the board of directors of the Albuquerque Bar Association. In the early 1970s, Ramo took her enthusi- asm about the need for automation and modern management techniques in law firms nation- wide, and she wrote what one member of the ABA’s board of governors later described as “a revolutionary book,” titled How to Create a System for the Law Office. The 1975 book became a best seller year after year and proved to be the most popular book ever published by the ABA. That work brough t Ramo toget her with Miami lawyer Samuel S. Smith, who had been lecturing around the United States on the same themes. They, along with others, began traveling and lecturing together, doing so for seven years. They eventually cofounded the ABA’s Law Practice Management Section. Having worked her way to prominence within the organization, Ramo made her first run for ABA president in 1991. Only one other woman had run for that office, in 1986, only to withdraw from the race very early when she failed to gain significant support. Ramo’s bid became legendary in ABA politics, where it is not unusual for someone to run unopposed for president, and where the vote usually is very quick when it concerns two candidates. For the first time, three contenders were left at the time of the election, and the voting dragged through- out the day to an unprecedented 88 ballots before Ramo finally lost. Ramo ran again and won in 1995, serving from August of that year to August 1996. The perception and reality of the old-guard tradition in ABA leadership were so strong that a week prior to her election, the New York Times noted that even with two women on the U.S. Supreme Court and two women at the highest level of the JUSTICE DEPARTMENT, “another, perhaps even more formidable barrier” would soon fall, with Ramo’s incoming presidency (Feb. 4, 1994). As head of the ABA, Ramo supported a number of initiatives, including fighting for the LEGAL SERVICES CORPORATION, a federally funded, nonprofit organization that provides legal help to poor persons, and the ABA National Commission on DOMESTIC VIOLENCE, which she helped to launch in 1994. She was particularly concerned with FIRST AMENDMENT rights empha- sizing the ABA’s position against constitutional amendments that would permit school prayer or prohibit flag-burning and other symbols of free speech. After her term as ABA president, Ramo returned to the Modrall law firm, where she specializes in the areas of mediation, ARBITRA- TION , business law, REAL ESTATE, probate, and estate planning. In February 2003 she was appointed by the U.S. Senate to co-chair a committee in charge of reviewing and offering suggestions to the U.S. Olympic Committee. In May 2008 Ramo was appo inted the first female president of the American Law Institute. FURTHER READINGS Carter, Terry P. 1994. “Roberta’s Rules of Order: Ramo’s Path-Breaking Rise to ABA President.” Law Practice Management 20. Eveleth, Janet Stidman. 1996. “Ramo Sets New ABA Direction.” Maryland Bar Journal 29. Goldberg, Stephanie B., and Patricia Gallagher. 1996. “Basking in a Year’s Triumphs; Ramo Counts LSC Support, Domestic Violence Awareness among Achievements.” ABA Journal 82. v RANDOLPH, ASA PHILIP Asa Philip Randolph played a central role in the drive for CIVIL RIGHTS for African Americans from the 1920s to the 1970s. He was the most prominent African American labor leader during his lifetime, but his leadership went well beyond the struggle to integrate LABOR UNIONS. As the founder of the Brotherhood of Sleeping Car Porters, he confronted U.S. presidents from FRANKLIN D . ROOSEVELT to JOHN F. KENNEDY over the slow pace of civil rights reform. Randolph was born April 15, 1889, in Crescent City, Florida. He moved to New York City as a young man, where he attended City College of New York. He joined the Socialist party and campaigned against U.S. involvement in WORLD WAR I, going so far as to attack W. E. B. DU BOIS, one of the founders of the National Association for the Advancement of Colored People ( NAACP), for urging African Americans to serve in the armed forces. His life’s work grew out of a request by Pullman car porters to help them organize a JUSTICE IS TOO IMPORTANT A MATTER TO BE LEFT TO THE JUDGES , OR EVEN TO THE LAWYERS : THE AMERICAN PEOPLE MUST THINK ABOUT , DISCUSS, AND CONTRIBUTE TO THE FUTURE OF THEIR COURTS . —ROBERTA COOPER RAMO GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 248 RANDOLPH, ASA PHILIP union. In the 1920s railroads dominated U.S. transportation. The dining cars, club cars, and sleeping cars of passenger trains were staffed by African American porters, who earned their money primarily from the tips of passengers. Ignored by the American Federation of Labor (AFL), the porters turned to Randolph for assistance. Randolph sought from the Pullman Com- pany recognition of the union, improved working conditions, and a MINIMUM WAGE. The struggle took twelve years, but Randolph finally achieved these goals. Despite his success the AFL continued to refuse to allow black members. WORLD WAR II thrust Randolph into the national spotlight when, in 1941, he demanded that President Roosevelt ban RACIAL DISCRIMINA- TION in defense industries. Randolph informed the president that if his demand was not met, he would organize a mass march on Washington, D.C. Roosevelt capitulated, signing an order that integrated industries accepting federal defense contracts and which established the Fair Employment Practices Committee. The membership of the Brotherhood of Sleeping Car Porters (now part of the Brother- hood of Railway and Airline Clerks) declined in the 1950s, as airlines and automobiles became the dominant modes of long-distance transpor- tation. Randolph continued to ascend, however, as he became vice president of the AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS (AFL-CIO) in 1957. The only prom inent African American to head a union, Randolph refused to act as a mere symbol of racial INTEGRATION. He repeatedly urged the AFL-CIO to integrate its unions, earning the displeasure of the organization’s leadership, including President George Meany. Randolph again achieved national promi- nence for promoting a march on Washington, D.C. In 1963 he called for a march to protest racial discrimination and to demand jobs for African Americans. He later agreed to join forces with other civil rights leaders, including Dr. MARTIN LUTHER KING JR., who had called separately for a march on Washington that would focus on the need for civil rights legislation. Randolph was given the job of organizing the march. On August 28, 1963, the March on Washington for Jobs and Freedom took place in front of the Asa Philip Randolph 1889–1979 ▼▼ ▼▼ 1925 1950 1975 1900 ❖ 1889 Born, Crescent City, Fla. ◆ 1914–18 World War I 1925 Helped form the Brotherhood of Sleeping Car Porters ◆ 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War ❖ ◆ ◆ ◆ ◆◆ ◆ 1941 Roosevelt signed order banning racial discrimination in defense industries and established Fair Employment Practices Committee 1948 Successfully lobbied Truman to desegregate armed forces 1979 Died, New York City 1957 Became vice president of AFL-CIO 1960 Formed the Negro American Labor Council 1963 Directed March on Washington, during which Martin Luther King gave his I Have a Dream speech 1964 Civil Rights Act passed 1965 Voting Rights Act passed A. Philip Randolph. FISK UNIVERSITY LIBRARY I HAVE SPENT ALL OF MY LIFE IN THE LABOR AND CIVIL RIGHTS MOVEMENTS , WHICH IS TO SAY THAT I HAVE SPENT A LIFETIME IN SEARCH OF SOLUTIONS TO THE PROBLEM OF RACE AND THE PROBLEM OF JOBS . —A. PHILIP RANDOLPH GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RANDOLPH, ASA PHILIP 249 Lincoln Memorial. More than 200,000 people heard King’s “IHaveaDream” speech, and many millions watched on television. Ran- dolph played a c entral role in this important event. Randolph continued in the 1960s and 1970s to lobby for civil rights legislation and jobs for African Americans. He died May 16, 1979, in New York City. FURTHER READINGS Jervis, Anderson. 1974. A. Philip Randolph: A Biographical Portrait. New York: Harcourt Brace Jovanovich. Neyland, James. 1994. A. Philip Randolph. Los Angeles: Melrose Square. Pfeffer, Paula F. 1990. A. Philip Randolph: Pioneer of the Civil Rights Movement. Baton Rouge: Louisiana State Univ. Press. CROSS REFERENCES Civil Rights Movement; Labor Union. v RANDOLPH, EDMUND JENNINGS Edmund Jennings Randolph served as U.S. attorney general and SECRETARY OF STATE during the administration of President GEORGE WASHING- TON . Randolph previously had played a central role in the drafting of the U.S. Constitution. Randolph was born on August 10, 1753, in Williamsburg, Virginia. He attended William and Mary College and then studied law with his father, who was a prominent lawyer and the king’s attorney in the colony of Virginia. As the American Revolution approached, Randolph sided with the independence movement, while his father remained loyal to the crown. In 1775 Randolph’s father, mother, and sisters left for England. In 1775 Randolph briefly served in the Virginia militia as an aide to George Washington before returning to manage his uncle’s estate. Randolph’s friendship with Washington contin- ued, and soon Randolph was handling Washington’s personal legal affairs. Randolph’s political career began in 1776 when he served in the Virginia Constitutional Convention. He helped dra ft a BILL OF RIGHTS and a state constitution. That same year he was appointed state attorney general, a post he held for ten years. During this period he also briefly served as mayor of Williamsburg. From 1779 to 1782, Randolph was a member of the CONTINEN- TAL CONGRESS . In 1786 he was elected governor of Virginia. Randolph was a prominent member of the Constitutional Convention of 1787. A key issue before the convention was the structure and representation of a national legislature. Delegates from small states opposed those from large states. Randolph offered the Virginia Plan on behalf of the large states, which provided for a two-house legislature with representation of each state based on its population or wealth. WILLIAM PATERSON of New Jersey proposed the New Je rsey Plan on behalf of the smaller states, which provided for equal representation in Congress. The matter was resolved by the Connecticut Compromise, which created a bicameral legislature with proportional representation in the lower house and equal representation of the states in the upper house. Randolph refused to sign the final draft of the Constitution because he believed that it did not protect the rights of states and individuals. In 1788 he did, however, urge Virginia to ratify Edmund Jennings Randolph 1753–1813 ▼▼ ▼▼ 17501750 18251825 18001800 17751775 ❖ 1753 Born, Williamsburg, Va. 1776 Attended the Virginia Constitutional Convention 1775–83 American Revolution ◆ 1776–82 Served as attorney general of Virginia 1779–82 Participated in Continental Congress 1787 Attended Constitutional Convention ◆◆ 1786–88 Served as governor of Virginia 1789–94 Served as U.S. attorney general under Washington 1788 Virginia ratified U.S Constitution 1794–95 Served as secretary of state under Washington ◆ 1807 Served as chief defense counsel and won acquittal in Aaron Burr's treason trial 1813 Died, Milwood, Clarke County, Va. ❖ 1812–14 War of 1812 THE PREROGATIVE OF [A PRESIDENTIAL] PARDON IS TOO GREAT A TRUST .THE PRESIDENT HIMSELF MAY BE GUILTY .THE TRAITORS MAY BE HIS OWN INSTRUMENTS . —EDMUND RANDOLPH GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 250 RANDOLPH, EDMUND JENNINGS the Constitution, proclaiming the need for national unity. From 1789 to 1794 he served as U.S. attorney general for the new national govern- ment. Following Thomas Jefferson’s resignation as secretary of state, P resident Washington appointed Randolph to the post. France and Great Britain were at war at the time, and both countries had supporters within the United S tates. Randolph attempted to carry out Washington’s policy of neutrality in the c onflict but earned enemies on both sides. Randolph’s public career ended in a cloud of scandal in 1795, after the British minister to the United States claimed that Randolph had expressed a willingness to accept money from France to create U.S. policy favorable to that country. Though the charges were eventually shown to be untrue, Randolph resigned. Randolph returned to Virginia and prac- ticed law for the remainder of his life. In 1807 he served as chief defense counsel for AARON BURR , who was on trial for TREASON.Burrwas acquitted after it became clear that the charges were groundless and politically motivated. Randolph died on September 12, 1813, at his estate in Clarke County, Virginia. FURTHER READINGS Conway, Moncure Daniel. 1888. Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph. Reprint 1971, New York: Da Capo. Reardon, John J. 1975. Edmund Randolph: A Biography. New York: Macmillan. CROSS REFERENCES Bill of Rights; Constitution of the United States; “The Virginia, or Randolph, Plan” (Appendix, Primary Document). v RANKIN, JEANNETTE Jeannette Pickering Rankin of Montana was the first woman in U.S. history to be elected to the U.S. House of Representatives. A nonconform- ist Republican, she served two nonconsecutive terms in the House. Rankin is best remembered for her opposition to war. In 1917 she voted against the entry of the United States into WORLD WAR I , and in 1941 she took the same position against U.S. involvement in WORLD WAR II. During the 1960s Rankin protested U.S. military action in Southeast Asia. Rankin was born on June 11, 1880, on a ranch near Missoula, Montana. The oldest of seven children, Rankin was first among a family of high achievers. One of Rankin’s sisters became dean of women at the University of Montana, and another taught in the English department there. Rankin’s only brother and another sister became well-known, politically connected attorneys. Rankin was an intelligent but undistin- guished student. She graduated from the University of Montana in 1902 with a bachelor’s degree in biology and then taught school for six years. In 1908 she left Montana to seek other challenges. Earlier Rankin had visited Boston where she saw urban slums for the first time. She vowed to help improve the living and working conditions of poor Americans. In 1908 Rankin entered the New York School of Philanthropy in New York City (renamed the Columbia School of Social Work) and became a social worker. In 1910 Rankin moved to Spokane, Washington, to work in a children’s home. Inspired by the supporters of women’ssuffrage, Rankin concluded that good legislation was more effective than social work in solving society’s problems. She joined the suffrage movement in Washington and campaigned successfully for an amendment to the state constitution that gave women the right to vote. After victory in Washington, Rankin returned to her native Montana to work for Edmund Randolph. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RANKIN, JEANNETTE 251 women’s suffrage. In what was a bold move at the time, Rankin addressed the state legislature on the issue, reminding lawmakers that all citizens in a democracy deserved a voice. Her LOBBYING and organizing efforts paid off, and Montana gave women the right to vote. Rankin continued to spread her message by traveling across the country, giving pro-suffrage speeches. She became a prominent member of the National American Woman Suffrage Association. At the same time, Rankin also became involved in the turn-of-the-century peace movement, helping establish the Women’s Peace Party. In 1917 Rankin decided to run for election to the U.S. House of Representatives. Montana had only one congressional district at the time because of its small population. Rankin cam- paigned for a federal suffrage amendment, stricter employment laws to protect women and children, and continued neutrality in the war being waged in Europe. She won the election by a very narrow margin, and at age thirty-six became the first woman to serve in the U.S. House of Representatives. Soon after she took office, Rankin’s position on U.S. neutrality was tested. President WOODROW WILSON sought a U.S. decla ration of war against Germany. On April 6, 1917, Rankin voted against U.S. involvement in World War I. Although 49 other representatives cast negative votes, Rankin’s vote was widely publicized— and criticized—because she was the only female member of Congress. Rankin was not reelected to Congress in 1918, in part because of her antiwar vote but also because she had antagonized powerful mining interests in Montana. After her defeat Rankin resumed her work with the peace movement. She was a delegate to the Women’s International Conference on Permanent Peace in Zurich where women analyzed the Versailles Peace Treaty of World War I. This process led to the formation of the Women’s International League for Peace and Freedom. In 1928 Rankin organized the Georgia Peace Society and in the 1930s she was a lobbyist for the National Council for the Prevention of War. ▼▼ ▼▼ Jeannette Rankin 1880–1973 18751875 19251925 19501950 19751975 19001900 ❖ 1880 Born near Missoula, Mont. ◆ 1890 Wyoming entered Union as first state granting women suffrage in its constitution ◆ 1902 Graduated from University of Montana ◆ 1910 Campaigned successfully for women's suffrage in Washington state ◆ 1914 Campaigned successfully for women's suffrage in Montana 1914–18 World War I ◆ 1928 Organized Georgia Peace Society ◆ ◆ 1920 Nineteenth Amendment ratified, gave nationwide suffrage rights to women 1917–18 Served in U.S. House 1917 Became first women elected to U.S. House; voted against U.S. entrance into World War I 1939–45 World War II ◆ 1950–53 Korean War 1941–42 Served in U.S. House 1941 Voted against U.S. entrance into World War II 1961–73 Vietnam War ◆ ❖ 1973 Died, Carmel, Calif. 1968 Led the Jeannette Rankin Brigade, protested U.S. military presence in Southeast Asia Jeannette Rankin. LIBRARY OF CONGRESS WE’RE HALF THE PEOPLE ; WE SHOULD BE HALF THE CONGRESS. —JEANNETTE RANKIN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 252 RANKIN, JEANNETTE When war erupted again in Europe in 1939, Rankin was convinced that most U.S. citizens shared her views on neutrality. She returned to Montana to run for the House of Representa- tives. Rankin was reelected and reentered Congress in 1941. The bombing of Pearl Harbor by Japan on December 7, 1941, shattered widespread support for U.S. neutrality. This time when President FRANKLIN D. ROOSEVELT sought a declaration of war against Japan, Rankin was the only legislator to vote against it. Her vote, although consistent with her two decades of work in the international peace movement, was roundly criticized as unpatriotic. Rankin’s political career was irrep- arably damaged, and she did not run for reelection. During the 1950s and early 1960s, Rankin traveled abroad and lived modestly in Georgia. The VIETNAM WAR drew her back into the public spotlight. In 1968 she led the Jeannette Rankin Brigade, a half-million women demonstrating in Washington, D.C., against U.S. military pre- sence in Southeast Asia. In 1969 she took part in antiwar protests in South Carolina and Georgia. Rankin died on May 18, 1973, in Carmel, California. RESOURCES Davidson, Sue. 1994. A Heart in Politics: Jeannette Rankin and Patsy T. Mink. Seattle: Seal. Smith, Norma. 2002. Jeannette Rankin, America’s Conscience. Helena: Montana Historical Society Press. Stineman, Esther. 1980. American Political Women: Contem- porary and Historical Profiles. Littleton, CO: Libraries Unlimited. CROSS REFERENCES Nineteenth Amendment; Women’s Rights. v RANTOUL, ROBERT, JR. Robert Rantoul Jr. was a Massachusetts attorney who served in various state and federal offices during his brief life. He is best remembered, however, for his denunciations of the common- law tradition, for his leadership in the CODIFICA- TION movement, and for his defense of labor unions. Rantoul was born on August 13, 1805, in Beverly, Massachusetts. He attended private schools before enrolling at Harvard University. He was admitted to the Massachusetts bar and practiced law in Salem. Rantoul served in the Massachusetts legisla- ture for several terms before becoming U.S. attorney for the district of Massachusetts. He was briefly a Democratic member of the U.S. House of Representatives in the late 1840s. In 1851, he was elected to serve the last year of a term as U.S. senator. Rantoul’s congressional service was short but distinguished. He opposed the FUGITIVE SLAVE ACT OF 1850 and supported the expansion of railroads to the western territories. The town of Rantoul, Illinois, was named in his honor for his railroad legislation. Nevertheless, Rantoul’s importance lies in his critique of the common-law tradition and his call for the codification of all law by the legislature. The codification movem ent, of which Rantoul was a prominent spokesperson, attacked the COMMON LAW as unsuitable for a democratic republic. Randolph believed that allowing judges to interpret and adapt the law led to decisions about issues that were properly within the province of the legislature. Rantoul advocated that the legislature write a set of laws, Robert Rantoul Jr. 1805–1852 1800 1875 1850 1825 1805 Born, Beverly, Mass. 1812–14 War of 1812 1826 Graduated from Harvard University 1829 Admitted to Mass. bar 1834–39 Served in Mass. House 1836 Presented ideas about common law and the need for codification during address at Scituate, Mass. 1852 Died, Washington, D.C. 1851–52 Served in U.S. Senate 1849–51 Served in U.S. House 1845–49 Served as U.S. attorney for the district of Mass. 1842 Successfully defended right of unions to collectively bargain in Commonwealth v. Hunt 1861–65 U.S. Civil War GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RANTOUL, ROBERT, JR. 253 to be contained in a code book, that judges would apply to the cases before them. Rantoul presented his ideas about the common law and codification in their fullest form in a two-hour Fourth of July address at Scituate, Massachusetts, in 1836. Rantoul stated that “the Common Law is but the glimmering taper by which [English] men groped their way through the palpable midnight in which learn- ing, wit, and reason were almost extinguished.” “The Common Law,” he continued, “had its origin in folly, barbarism, and feudality.” Rantoul believed that the problem in the common-law method was the discretion per- mitted the judge. He claimed that judge-made law is ex post facto law and, therefore, unjust. Persons could not know the law because “no one knows what the law is before [the judge] lays it down.” Moreover, a judge was able to rule differently from case to case. Because the poor could not afford legal counsel, they were at a disadvantage when they entered a courtroom. Without an attorney, a person was at the mercy of the court. The only solution, Rantoul argued, was to abandon the common-law system and codify all laws into one book that everyone could read and under- stand. The codification movement had limited success during the nineteenth century. Rantoul advocated a code but never tried to write one. DAVID DUDLEY FIELD, a New York attorney, wrote what became known as the Field Code of CIVIL PROCEDURE . His code was enacted in 24 states, most of them in the West. California adopted it in 1872. Rantoul also distinguished himself as an advocate for labor unions in the landmark Massachusetts case of Commonwealth v. Hunt (45 Mass. [ 4Met.] 111, 38 A.M. Dec. 346 [1842]). Rantoul defended members of the bootmakers union who had been indicted for criminal CONSPIRACY because they sought to bargain collectively. The charge of criminal conspiracy had been a potent weapon in preventing the formation of unions. Rantoul persuaded Chief Justice LEMUEL SHAW and the Supreme Judicial Court of Massachusetts to set aside the indict- ments. In his opinion, Shaw agreed with employers that competition was vital to the economy but concluded that unions stimulated competition. Shaw stated that, as long as the unions used legal methods, they were free to seek concessions from employers. Rantoul died at age 47 on August 7, 1852, in Washington, D.C. CROSS REFERENCE Field Code of New York. RAPE A criminal offense defined in most states as forcible sexual relations with a person against that person’s will. Rape is the commission of unlawful sexual intercourse or unlawful sexual intrusion. Rape laws in the Unite d States have been revised over the years, and they vary from state to state. Historically, rape was defined as unlawful sexual intercourse with a woman against her will. The essential elements of the crime were sexual penetration, force, and lack of consent. Women who were raped were expected to have physically resisted to the utmost of their power s or their assailant would not be convicted of rape. Additionally, a husband could have sex with his wife against her will without being charged with rape. Beginning in the 1970s, state legislatures and courts expanded and redefined the crime of rape to reflect modern notions of equality and legal propriety. As of 2009, all states define rape without reference to the sex of the victim and the perpetrator. Though the overwhelming majority of rape victims are women , a woman may be convicted of raping a man, a man may be convicted of raping a man, and a woman may be convicted of raping another woman. Fur- thermore, a spouse may be convicted of rape if the perpetrator forces the other spouse to have nonconsensual sex. Man y states do not punish the rape of a spouse as severely as the rape of a non-spouse. Several states also have redefined lack of consent. Before the 1970s, many courts viewed the element of force from the standpoint of the victim. A man would not be convicted of rape of a competent woman unless she had demon- strated some physical resistance. In the absence of physical resistance, courts usually held that the sexual act was consensual. In the early 2000s in many states, the prosecution can prove lack of consent by presenting evidence that the victim objected verbally to the sexual penetra- tion or sexual intrusion. JUDGE-MADE LAW IS EX POST FACTO LAW , AND THEREFORE UNJUST .AN ACT IS NOT FORBIDDEN BY THE STATUTE LAW , BUT IT BECOMES BY JUDICIAL DECISION A CRIME .THE JUDICIARY RUNS RIOT BEYOND THE CONFINES OF LEGISLATIVE POWER . —ROBERT RANTOUL JR. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 254 RAPE Lack of consent is a necessary element in every rape. But this qualifier does not mean that a person may make sexual contact with a minor or incapacitated person who actually consented. Lack of consent may result from either forcible compulsion by the perpetrator or an incapacity to consent on the part of the victim. Persons who are physically or mentally helpless or who are under a certain age in relation to the perpetrator are deemed legally incapable of consenting to sex. Most states choose to label the crime of rape as sexual ASSAULT. Sexual assault is divided into degrees: first-, second-, third-, and fourth- degree sexual assault. West Virginia provides an illustration of how rape laws are typically written. In West Virginia, a per son is guilty of sexual assault in the first degree when that person engag es in sexual in tercourse or sexual intrusion with another person and either inflicts serious bodily injury upon anyone or employs a deadly weapon in the commission of the act (W. Va. Code § 61-8B-3 [1996]). Additionally, a person age 14 years or older who engages in sexual intercourse or sexual intrusion with another person who is 11 years old or less is guilty of first-degree sexual assault. A person convicted of the crime of first-degree sexual assault in West Virginia faces imprisonment for at least 15 years and not more than 35 years and may be fined from $1,000 to $10,000. In West Virginia, a person commits sexual assault in the second degree by engaging in sexual intercourse or sexual intrusion with another person without that person’s consent, and the lack of consent results from forcible compulsion. Forcible compulsion is (1) physical force that overcomes such earnest resistance as might reasonably be expected under the circum- stances; (2) threat or intimidation, either express or implied, placing the victim or another person in fear of death, bodily injury, or KIDNAPPING;or (3) fear by a person under 16 years of age caused by intimidation by another person who is at least four years older than the victim. Another way to commit second-degree sexual assault in West Virginia is to engage in sexual intercourse or sexual intrusion with someone who is physically helpless. The pun- ishment for second-degree sexual assault is imprisonment for at least ten years but not more than 25 years and may include a fine of from $1,000 to $10,000. Third-degree sexual assault is committed when a person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated, or when a person age 16 years or older has sex with a person who is less than 16 years old and is at least four years younger than the DEFENDANT. Third-degree sexual assault is punishable in West Virginia by at least one, but no more than five, years in prison and may include a fine of not more than $10,000. The provisions that refer to the age of the victim and the perpetrator are called STATUTORY RAPE provisions. Statutory rape sections punish the perpetrator without regard to the consent of the victim. Such laws are in place in all states to enforce the generally accepted notions that children are incapable of consenting to sex because of their youth and innocence and that sexual intercourse or intrusion of a child by an older person is socially unacceptable and harmful to the child. The term statutory rape also refers to the sections that punish sex with physically and mentally incapacitated persons, who are similarly unable to consent to sex. Until 1977 states could impose CAPITAL PUNISHMENT for the crime of rape. In that year the SUPREME COURT,inCoker v. Georgia, 433 U.S. 584, 97 S.Ct 2861, 53 L.Ed.2d 982 (1977) struck down a Georgia statute as a violation of the Eighth Amendment’s ban on CRUEL AND UNUSUAL PUNISHMENT . In 2008 the court, in Kennedy v. Percentage of Rapes/Sexual Assaults Reported to the Police in 2006 a 0 10 20 30 40 50 60 33.9% 12–19 51.6% 20–34 46.8% 35–49 44.6% 50–64 Age of victim Percentage of incidents reported to the police a Includes verbal threats of rape and sexual assault. SOURCE: U.S. Department of Justice, Bureau of Justice Statistics, Criminal Victimization in the United States, 2006. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION RAPE 255 Louisiana,, __U.S.__, 128 S.Ct. 2641, 171 L. Ed.2d 525, struck down a Louisiana law that permitted capital punishment for the rape of a child. The court went beyond the question in this case and ruled that the death penalty should only be applied in cases where the defendant has killed his victim. Rape or sexual assault statutes carefully define the type of contact that constitutes rape. In Hawaii, for example, the term sexual penetration is defined as “vaginal intercourse, anal intercourse, FELLATIO, cunnilingus, analin- gus, deviate sexual intercourse, or any intru- sion of any part of a person’sbodyorofany object into the genital or anal opening of another person’s body however slight.” Sexual contact is “ any touching o f the sexual or other intimate parts of a person or of the sexual or other intimate parts of the actor by the person, whethe r directly or through the clothing or other material intended to cover the sexual or other intimate parts” (Haw. Rev. Stat. § 707-700 [1996]). Most states punish lesser sexual intrusions with statutes on SEXUAL ABUSE. Like sexual assault statutes, sexual abuse statutes are divided into degrees based on the nature of the contact. Sexual abuse consists of nonconsensual sexual contact with another person. Lack of consent is present if the victim is a minor or physically Rape Shield Laws: Can They Be Fair? I ntroduced in the 1970s, shield laws sought to revolutionize rape trials. By prohibiting the introduction of a rape victim’s reputation or sexual history at trial, lawmakers removed one of the age- old stigmas that had prevented the successful prosecution of rapists and had kept women from bringing cases to court. Originally, the laws met with widespread acceptance. Two decades after their adoption by most states and the federal government, however, they have given rise to a debate in which neither side is satisfied with them. Advocates say they have not worked as well as desired. Opponents argue that their effect has been to deny defendants a fair trial. The legal future of these revolutionary laws hinges on a difficult question: How can courts protect victims without curtailing the rights of defendants? The origin of shield laws is a response to the historical prosecution of rape. Most accusations of rape assert that the victim did not give sexual consent. At common law and in the present, the vast majority of rape cases have been tried in state courts before a jury. Traditionally, con- victions have been notoriously hard to win. There is usually no evidence on the consent question other than the claims of the parties, making it difficult to prove lack of consent “beyond a reasonable doubt” as required in a criminal case. Hence, at trial, credibility is everything: if the accuser is not believable, the defen- dant is likely to be acquitted. Defense attorneys typically challenge the accuser’s credibility. For centuries, there was one effective path to such an end: to present evidence of the victim’s past sexual behavior to undermine the present allegation. At common law, the victim’s past sexual behavior was always considered relevant and admissible at trial. In this way, the law embodied social and moral values that put a high premium on a woman’s sexuality. Con- ventional views of chastity regarded the sexually active woman as being promis- cuous, and, in turn, promiscuity was thought to connote dishonesty. To cast doubt on the accuser’s word and to show the likelihood of her having consented to sex with the defendant, defense attorneys commonly pursued evidence about her sexual life. If she had sex with men, or so the underlying belief went, how could she have been raped? To combat these antiquated notions, rape shield laws arose through two significant developments. The sexual revolution of the 1960s dramatically changed social values regarding premari- tal sexual activity, and feminist legal theory became highly influential a decade later. Feminist critics attacked the pre- mises on which the common-law origins of rape defenses were based. Their argument posed a question that only a generation earlier would have been widely dismissed: Why should a woman’s sexual history matter at all in relation to her claim of rape? Not only was such evidence irrelevant, they asserted, but harmful. Its use in court discouraged a woman from bringing a charge of rape because, in effect, she would be put on trial. Fearing a public assault on her reputation, a victim had a strong incen- tive not to report a rape. And when women were willing to undergo a barrage of intrusive questions, they often saw their claims mocked and their violators allowed to go free. But for political success, passage of the laws required political support. Pro- ponents won this support from conserva- tive lawmakers. Although not generally known for embracing either the sexual revolution or feminist legal theory, these lawmakers backed the laws in state legislatures because they represented a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 256 RAPE helpless or if the victim was forcibly compelled to consent to the contact. A person convicted of sexual abuse may be fined and sentenced to a term in jail or prison. Because the crime does not involve penetration, the punishment for sexual abuse is less than that authorized for persons convicted of sexual assault. A few states have eliminated the require- ment that a competent adult rape victim physically resist the attacker. Physical resistance in some rape situations presents a greater danger to the victim. The states that have eliminated the physical requirement have found it to be unfair to require physical resistance on the part of the victim if such resistance risks greater injury. In Michigan, for example, force or coercion “includes but is not limited to” several situations, including where the actor coerces the victim through threats of force or violence and the victim believes that the actor can carry out the threats and where the actor physically overcomes the victim through the actual application of physical force (Mich. Comp. Laws Ann. § 750.520a [West 1996]). Nowhere in Michigan’s rape statutes is consent based on an analysis of the victim’s physical resistance. The states that have no t eliminated physical resistance as a test for lack of consent have declined to do so for fear of convicting an adult solid law-and-order position. The idea that criminals sometimes improperly escape prosecution through the legal maneuvering of defense attorneys, and that the law should close such loopholes, had become a centerpiece of the conser- vative legal reform agenda by the 1970s. With this backing, rape shield laws were easily adopted. By the 1990s, all but two states had them. By the late 1980s, however, some proponents were troubled. Shield laws had not lived up to expectations. Merely providing protections to victims had not been enough to change long-standing social and legal habits. In 1987 the National Organization for Women and 25 other groups reported that gender bias against women litigants was still perva- sive in courtrooms. As a result, women’s testimony was accorded less credibility by judges and attorneys. Also, defense attorneys continued to introduce evi- dence that the shield laws were designed to bar. They could succeed if the evidence was introduced creatively, chiefly because state laws left judges wide discretion and unclear direction on what to admit as evidence. While seeking to tighten the admission of evidence in general, some shield law proponents wanted the laws strengthened to exclude even more kinds of evidence, such as the type of clothing a victim was wearing at the time of an assault. In addition to such obstacles, various exceptions weakened rape shield laws. In particular, they provided little or no protection if the victim knew her assail- ant. Most state statutes allowed the admission of evidence about a past sexual relationship between the accuser and the defendant, and therefore defense attor- neys often attempted to persuade juries that there had been such a relationship. Behavior by a woman that was even slightly indicative of a past sexual relationship with her assailant would work against her at trial. By the 1990s a backlash against the laws developed. Defense attorneys, law professors, and civil liberties activists maintained that the laws were unfair to criminal defendants. They had two main arguments: restrictions on the admission of evidence undermined the defense attorney’s goal of providing the best defense, and more significantly, such restrictions deprived the defendant of his Sixth Amendment right to a full defense, including confronting his accuser and presenting witnesses in his favor. Many opponents of shield laws acknowledged that women face tradi- tional obstacles in rape prosecutions but saw the laws as a poor remedy if they denied defendants due process and sent the innocent to jail. Among leading opponents of shield laws was Alan M. Dershowitz, the cele- brated Harvard law professor and crimi- nal appellate lawyer. Dershowitz un- successfully appealed the 1991 rape conviction of former boxing champion Mike Tyson to the U.S. Supreme Court, which refused to hear the case. Dershowitz argued that the trial court had unconstitutionally barred admission of evidence that would have acquitted Tyson: allegations that his accuser, a nineteen-year-old woman, had previously falsely accused another man of rape to avoid angering her father about her sexual activity. Because such evidence related to the victim’s past sexual history, it was ruled inadmissible. In the view of Dershowitz and other opponents, such evidence should be allowed because it can reveal an accuser’s motive to lie about consensual sex with a defendant. Frustrat- ing these critics is the fact that appellate courts have consistently upheld shield laws, despite finding that some trial courts have applied the laws unconstitutionally. From early enthusiasm to increasing skepticism, rape shield laws have endured a difficult quarter century since their passage. Their intention was to remove barriers that prevented women from reporting rape and winning convictions. Both proponents and opponents believe reform is needed, yet they disagree on what form it should take. Proponents want to strengthen shield laws to increase protections for women. But opponents counter that the laws are already strongly biased against defendants, depriving them of fundamental liberties. CROSS REFERENCES Dershowitz, Al an Morton; Due Process of Law; Sixth Amendment. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION RAPE 257 . 180 5– 185 2 180 0 187 5 185 0 182 5 180 5 Born, Beverly, Mass. 181 2–14 War of 181 2 182 6 Graduated from Harvard University 182 9 Admitted to Mass. bar 183 4–39 Served in Mass. House 183 6 Presented ideas about common law. TO THE LAWYERS : THE AMERICAN PEOPLE MUST THINK ABOUT , DISCUSS, AND CONTRIBUTE TO THE FUTURE OF THEIR COURTS . —ROBERTA COOPER RAMO GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 2 48 RANDOLPH,. BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION RAPE 255 Louisiana,, __U.S.__, 1 28 S.Ct. 2641, 171 L. Ed.2d 525, struck down a Louisiana law that permitted