Now that I’ve cooled down a bit about Whoopi Goldberg’s clueless remarks regarding the arrest of Roman Polanski, I think I’ll write a little historical primer for all those out there who are wondering, WTF?

The core of Goldberg’s argument, as I see it, is that Polanski accepted a plea bargain to the charge of “having sex with a minor” aka statutory rape.  So, according to Goldberg, this isn’t “rape rape” — i.e. a sexual assault on an adult woman.  If the 13-year old had been over the age of consent (16), Goldberg seems to suggest, then it wouldn’t “really” be rape.

In order to explain why this line of argument is a crock of shit extremely faulty, here’s a brief history of rape law in the twentieth century (which I’m still working through so be patient folks):

The Women and Social Movements in the United States database has an excellent document project on the age of consent campaign at the turn of the twentieth century.  Since this database is subscription only (although you can access their blog for free), I’ll summarize.  Then as now, the “age of consent” referred to the age at which a girl could consent to sexual relations. A man who had sex with a girl below that age could be tried for statutory rape.  In the late nineteenth century the age of consent in many states was as low as ten or twelve, and in Delaware the age was seven (eww!).   Hoping to protect young girls from sexual predators, reformers started a campaign to raise the age of consent to at least sixteen, and preferably eighteen.  They based their work on that middle- and upper-class men were seducing and impregnating young, white, single girls who were flocking to the cities to find work.  Some of these girls were also victims of “white slavery” (aka sex trafficking) and were lured to the city by the promise of employment, only to find that the job was prostitution.  By 1920, most states had passed laws establishing sixteen or eighteen as the age of consent.

Now, as with other Progressive-era reforms, there were shortcoming to this reform campaign.  Most reformers were white, and overlooked the plight of African-American girls and women entirely (in fact, the reasoning was that by nature, all African-American women were hypersexual, hence it was impossible to rape a black girl or woman because men could not resist these “temptresses.  Ida B. Wells unsuccessfully tried to dispell this myth). The age of consent campaign also was based on compulsory sexual purity for girls and women outside of marriage. In fact, it was at this time that the notion of “sexual delinquency” was conceived.  Moral reformers created homes for “delinquent” and “wayward” girls — ostensibly to “protect” these girls from sexual predators, but also to “reform” their behavior — i.e. make them into virtuous, pure, respectable women.  This resulted in a major asymetry in punishment: men convincted of statutory rape typically served 2-3 years in prison.  A young girl sentenced to a reformatory for sexual delinquency (which included assault by an adult male), was incarcerated until she reached the age of majority (usually 21).  So, a fourteen year-old would serve seven years in a reformatory.

Now, what about “rape rape” — i.e. sexual assault of women over the age of consent?  Well, it depends.  If a white woman charged a black man with rape, then the myth of black male hypersexuality and the culture of white male chivalry ensured that the man would be found guilty (or more likely, lynched before he even came to trial).  Even young boys  (see the Scotsboro boys and Emmett Till). For white men, it was much easier to get away with the crime of rape, since a woman’s previous sexual experience could be admitted as evidence.  So, if a woman was a “slut” — i.e. had intercourse outside of marriage — then it was obviously her fault she got raped because she was “asking for it.” The so-called sexual revolution of the 1960s and early 1970s in some ways actually made this situation worse for awhile: teenage and young adult women reclaimed their sexual agency yet the criminal justice system still assumed that girls who “slept around” deserved to get raped, or rather, that it wasn’t “really” rape because the girl led the guy on.

By the 1970s, this assumption was becoming increasingly untenable.  As I’m finding in my work on the history of emergency contraception, health care workers  along with feminist  activists, fought for more humane treatment of rape victims by police officers, emergency room personnel, and the criminal justice system. As Estelle Freedman’s recent review of the feminist classic, Against Our Will, by Susan Brownmiller, “our view of rape has transformed since the 1970s, from an unavoidable and unmentionable price of being female to an unacceptable crime against the human rights of women.”  During the 1970s and 1980s, feminist groups created rape crisis centers, and courts declared that a woman’s sexual history was irrelevant in a rape trial.  In the 1990s, there was increasing awareness of the problem of date rape, and marital rape became a crime in all 50 states.

The Polanski case occurred when definitions of rape were still evolving.  So, if the victim had been an adult, her sexual history probably would have been used as a way to weaken or dismiss the case against Polanski.

However, by today’s standards, what Polanski did was not just statutory rape, but actual, full-on, rape.  If Samantha Geimer had been over the age of consent,   Polanski would still be charged with “rape-rape” because she said no, multiple times, and was under the influence of drugs and alcohol.  [again, see her testimony before the grand jury].

Added later: see the Rape is Rape website for more information on how you can take action on this issue.