The University of Idaho Argonaut

Idaho’s laws make prosecuting rape difficult from all perspectives

According to Idaho rape laws, “no” does not necessarily mean no.
What has long been the mantra of victim’s rights advocates has little meaning in the state of Idaho, according to critics of state laws.
Valerie Russo and Don Lazzarini of the University of Idaho Violence Prevention Program have worked in the past to try to reform the single code in the Idaho State Code that deals with rape.

“Idaho rape laws are resistance based, and that in and of itself is a problem,” Lazzarini said.
A resistance based rape law means that the victim must fight to the point of being overcome by physical force or violence or be prevented from resisting in the first place.

Therefore, if someone says no to sex, but does not physically resist sex, it does not constitute rape in Idaho. Physical resistance must be evident in order for the crime to be called rape as the Idaho Code stands.

Lazzarini said the law leaves how the victim must resist questionable. For example, rape is defined as penetration, so if the victim fights with the assailant and then becomes physically exhausted, they cannot offer resistance during penetration. In the eyes of the law it becomes unclear if the victim consented or not because of the lack of resistance offered during the actual act, when in reality, the victim is clearly not consenting.

“As educators, it’s important for us to know, is it the point of penetration or the act of penetration that counts?” Russo said.
The Violence Prevention Program offers resources such as crisis intervention, information and referrals and educational programming.
According to UI’s Risk Management Office there have been three cases of rape in the last four years on campus, two of which were in 2006 and one in 2004.
“There’s no question that cases were referred to us that we’d like to prosecute, but the facts of the case did not meet the elements of the statutes that the legislators have given us to work with,” said Bill Thompson, prosecuting attorney for Latah County. “The inadequacies in the law have hindered our ability to respond appropriately to inappropriate sexual conduct.”

But cases don’t slip through the cracks all the time, he said.
“We’ve had plenty of cases that fit into the law and we’ve been able to prosecute many cases,” he said. “It’s hard for me to say whether it’s the majority (that slip through) or not. It happens.”

For this reason, Thompson thinks that Idaho’s laws are antiquated.
“We would be better off having a continuum of sexual offenses that are blind of gender,” he said.

Prosecutors and educators aren’t the only groups that see need for reform. After spending 17 years as a private criminal defense attorney in Moscow, Tim Gresback has found that even being accused of rape is tantamount to guilt for many people. The accusation can stick around and hurt a person almost as much as an actual conviction would.

“Once a citizen is labeled a sex offender, it’s the same as a civil death penalty,” he said. “We’ve made the penalties so severe that offenders now are disillusioned to admit wrongdoing, and as a result we’re having many more trials and many more acquittals.”

He believes that the laws have consistently grown in favor of the accuser for the past 20 years.
One thing that makes rape charges hard to defend against is the rape shield law. Under this law, the sexual history of the accuser is not allowed to be used in the defense of the accused, unless the accuser has made false allegations of sex crimes in the past, the accused believes that someone else was the source of semen, the accused has a history of sexual behavior with the accuser or if the accuser was engaging in sexual behavior with other parties at the time of the alleged attack.

“The judge should have more discretion on when to let prior conduct in,” Gresback said. “The rape shield is a big factor in many cases.”
Like Thompson, Gresback thinks that a continuum of sexual laws would be a step in the right direction.

“Uncle Charley fondling a breast of a 12-year-old one time over the clothing is radically different than anal intercourse with a four-year-old,” he said.
Since the statutory rape law is condensed into the rape code in Idaho, if an 18-year-old male has consensual sex with a 17-year-old female, he could be charged with rape. However, if an 18-year-old female were to have sexual relations with a 17-year-old male she could not be charged with anything.

“Statutory rape is different from rape at knifepoint or something much more egregious from a physical violence point of view,” Thompson said.
Gresback thinks that the statutory rape law needs revision as well.

“I’ve seen 18-year-olds and 15-year-olds at the same emotional age. I find a lot of time they’re in love and are doing what their bodies are telling them,” he said. “Statutory rape should fit into a different crime.”

In Washington, an 18-year-old male engaging in a sexual act with a 17-year-old female does not fall under the banner of rape as it does in Idaho. Instead, under their continuum of sexual laws, the male would be charged with Sexual Misconduct With a Minor in the First Degree.
Washington also features a continuum of sex crime laws.

Rape is split into three different degrees of severity, depending on circumstances. Rape in the third degree is defined as “where the victim did not consent to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct, or where there is threat of substantial unlawful harm to property rights of the victim.”
According to the Revised Code of Washington, consent “means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.”

The two higher degrees are for more violent and brutal cases. Rape in the first degree says that weapons must be involved, or the victim must be kidnapped.
Washington’s laws are also blind of gender. Both men and women can be charged with rape and other sex offenses.

“If the woman says no, and the male has sex with her anyway, it’s still serious,” Thompson said. “Is that as serious as holding someone at knife point (and raping them)? No. That’s why a continuum of laws is a much more enlightened way of dealing with sexual conduct.”

Russo helped change Idaho laws in 2002, eliminating a loophole in the Idaho Rape Code. The phrase “privity of the accused” was once part of the subsection that dealt with unconscious or drugged victims. Therefore, if someone were to force sex with somebody else who was incapacitated or too drunk to consent, the only way they could be prosecuted was if they had provided the victim with the alcohol.

While that was struck from the rape code in terms of male-on-female rape, that phrase still stands in the section of the Idaho Code that deals with male-on-male rape.

Since rape is defined as penetration, it is impossible for a woman to rape a man in the state of Idaho.
As the law stands, if a woman were to rape a man the most she could be charged with is battery and false imprisonment, unless a weapon was used Both of those charges are misdemeanors, resulting in a maximum sentence of two years in jail and $6,000 in fines. Rape carries a sentence of up to life in prison.