To catch a sex thief: the burden of performance in rape and sexual assault trials.

• Author: Rayburn, Corey

All the world's a stage, And the men and women merely players: They have their exits and their entrances; And one [wo]man in [her] time plays many parts. (1)

Jacques' observation in Shakespeare's As You Like It describes the typical rape and sexual assault trial in the United States. The complainant (2) plays many different characters throughout the course of the trial. Prewritten cultural scripts dictate her (3) lines. The setting is both the courtroom and the scene of the alleged rape as imagined by the jury. Unique to a rape "play," however, an accuser cannot be sure which role the jury will assign to her by the time it begins its deliberations. Is she to be cast as a whore? (4) A vengeful liar? A tease? Mentally unstable? If she has the "proper" background and the defendant is a stranger, can she play the role of an innocent Madonna whose perceived purity may result in the rarest of events: a guilty verdict?

While every trial has elements of theater, (5) rape and sexual assault cases are unique because they emphasize the gender performances of the accuser and the accused. Complainants who testify are not just recounting the events of the alleged rape. They are also defining the essential parts of their gender roles for the jury. Every statement, mannerism, action, and emotion of the accuser on the witness stand relays information about her gender to the jury. If the jurors deem a performance too emotional, they may assume the accuser is stereotypically hysterical and unreliable. If, however, she appears cold and calculating, the jury may believe she is a "gold-digger" using the criminal trial as a prequel to a lucrative civil suit. If she shows too much anger (as though it were possible for someone who has been raped to be "too angry"), the jury may see vengeance as her motive for "crying rape." Which predefined gender roles the jury assigns the accuser and accused during the trial are important in determining whose story the jury will ultimately believe.

At its core, a criminal rape trial taps into the linguistically and culturally founded beliefs of the jury in order to reach a desired outcome. In most cases of "simple rape," (6) as Susan Estrich has labeled acquaintance rape, the defense attempts to access certain meta-narratives about sex and rape to convince the jury that the alleged rape event was really consensual sex. These rape myths and the rhetoric of rape and sex, not statutory rules and procedures, are the critical pivot points for shaping the jury's decision. (7) The trial itself is like a play where the actors and their agents fight to define the roles and script utilizing these meta-narratives. As Stephen Schulhofer has written, "[s]ocial attitudes are tenacious, and they can easily nullify the theories and doctrines found in the law books. The story of failed [rape law] reforms is in part a story about the overriding importance of culture, about the seeming irrelevance of law." (8)

The William Kennedy Smith, Jr., Big Dan's Tavern, Central Park "wilding," and Mike Tyson trials, as well as the failed trial of Kobe Bryant, illustrate an important concept of law in America: the roles assigned by the media and jurors to the accuser and accused are fundamental to the outcomes of rape trials. When the defense attorneys for Kennedy Smith, Jr. successfully painted him as a respectable doctor from a good family and his accuser as an unstable money-grubber, the jury found him not guilty. (9) Kobe Bryant's defense team successfully deployed a similar strategy and his case did not even go to trial. (10) In the Big Dan's Tavern trials, the defendants were portrayed as wild Portuguese immigrants who represented a culture built on misogyny. (11) Similarly, the Central Park "wilding" cases were framed less as traditional rape cases than as general acts of violence by Black and Hispanic hordes against innocent, civilized New Yorkers who needed protection. (12) Mike Tyson was the embodiment of the wild man who could not be controlled by society's rules and the prosecution exploited that perception. (13) In each of these cases, and in most other rape trials in America, the outcomes have been determined not so much by specific evidentiary decisions and legal rules, but by utilizing the narrative structure most appealing to the jury. (14)

While feminist jurisprudential critiques and efforts at reforming rape law have focused on procedural and substantive defects of statutes and judicial decisions, (15) there is a more significant factor that determines rape trial outcomes: what this Article terms the "burden of performance." This burden, which will be described in depth below, is in addition to the burden of proof and persuasion already upon the prosecution. When complainants testify, they assume roles that put their gender identity into question. How they perform in these roles is fundamental to the jury's decision-making process. Defense attorneys use the predefined roles and certain rhetorical techniques to compare a particular complainant's experience with those in society's collective consciousness. (16) Specifically, the defense takes advantage of a jury's exposure to rape and pornography images and anecdotes. When a complainant is telling her story, she must impress a jury that has been inculcated with a lifetime of rape imagery and accounts, making the burden of performance a substantial impediment. Accusers must convince a jury, jaded by rape stories and pictures, that her story is "special" enough to warrant a guilty verdict. The end result is that prosecutions are doomed to fail in most situations. (17)

To understand rape law reform and its failure, it is absolutely essential to comprehend the unique performative problems that stifle efforts to reduce the occurrence of rape. Existing legal scholarship has ignored important developments in communication theory and has omitted significant considerations, contributing to the failure of reform efforts. As a result, existing feminist and mainstream proposals to improve American rape law are inherently suspect. To address this existing shortcoming, this Article offers new theories for analyzing rape trials and rape law derived from the burden of performance.

This Article argues that rape law reform must be fundamentally reoriented to address the problematics of performance and language that determine the outcomes of rape and sexual assault trials. Part I gives a brief account of the modern history of rape law reform and critique in the United States. Part II outlines the existing limited scholarship on representational and performative critiques of rape law. In Part III, the Article turns to a thought experiment derived from the scholarship of Jean Baudrillard that illustrates the unique nature of performances in rape trials as compared to other crimes. Part IV uses the hypothetical example in Part III to articulate and explore the concept of the burden of performance. In Part V, the Article focuses on the overriding factors that ensure the burden of performance will be insurmountable for most accusers. These impediments are derived from the scholarship on disaster pornography, sexual pornography, and the effect of the media's construction of rape, sex imagery, and myths. Finally, this Article offers some conclusions about how the burden of performance fundamentally alters the discussion of American rape law reform.

1. A BRIEF HISTORY OF RAPE LAW REFORM IN AMERICA

   The history and details of America's attempts to reform rape law have been written about many times before, (18) so this section is brief. A popular notion in the mainstream American press is that rape law has gone too far, that the pendulum has swung from failing to protect rape victims (19) to targeting innocent men. (20) This viewpoint has been inspired by a backlash against political correctness and sexual harassment laws, as well as a general social move away from feminism. (21) Opponents of rape law reform have had incredible success in convincing America that rape law has drastically changed in the last thirty years so that it now covers conduct that should not be criminal. (22) The Dotson case, where the victim recanted her rape story years later, further fed the media's portrayal of the feminist agenda gone too far. (23)

   Quite simply, the idea that rape law reform has overreached is a myth without any basis in fact. (24) While there may be successful prosecutions of innocent men, that would make rape law no different than any other area of criminal law. (25) To single out rape law as having gone too far, given its incredibly low prosecution and conviction rates, is a specious argument. In any given year in the United States, 250,000 (26) to nearly 900,000 (27) attempted or completed rapes occur. It is estimated that only sixteen percent of rapes and sexual assaults are reported to police. (28) According to a 1993 report, of the total number of reported rapes, only two percent resulted in conviction and incarceration. (29) Little has been altered in the substance and procedures of rape law in the last thirty years to justify the popular belief of radical change. (30) Rape conviction and plea bargaining rates have not substantially increased and most victories for reformers have been "symbolic." (31)

   This is not to deny that rape law in America has gone through numerous evidentiary and substantive changes over a longer time frame. The traditional elements of the crime of rape throughout most of the twentieth century were (1) sexual intercourse; (2) between a man and a woman who is not his wife; (3) achieved by force or threat of severe bodily harm; and (4) without her consent. (32) The force requirement was a derivative of the older, and difficult to overcome, "utmost resistance requirement." (33) Even in the face of specific violent threats, consent could be given through "voluntary" submission to the rapist. (34) Thus, if a victim eventually gave up resisting, courts...