Rape, Feminism, and the War on Crime

• Jurisdiction: United States,Federal
• Citation: Vol. 84 No. 4
• Publication year: 2021

RAPE, FEMINISM, AND THE WAR ON CRIME

Aya Gruber(fn*)

Abstract: Over the past several years, feminism has been increasingly associated with crime control and the incarceration of men. In apparent lock step with the movement of the American penal system, feminists have advocated a host of reforms to strengthen state power to punish gender-based crimes. In the rape context, this effort has produced mixed results. Sexual assault laws that adopt prevailing views of criminality and victimhood, such as predator laws, enjoy great popularity. However, reforms that target the difficulties of date rape prosecutions and seek to counter gender norms, such as rape shield and affirmative consent laws, are controversial, sporadically-implemented, and empirically unsuccessful. After decades of using criminal law as the primary vehicle to address sexualized violence, the time is ripe for feminists to reassess continued involvement in rape reform. This Article cautions feminists to weigh carefully any purported benefits of reform against the considerable philosophical and practical costs of criminalization strategies before making further investments of time, resources, and intellect in rape reform. In advancing this caution, the Article systematically catalogues the existing intra-feminist critiques of rape reform and discusses reasons why these critiques have proven relatively ineffective at reversing the punitive course of reform. The Article then crafts a separate philosophical critique of pro-prosecution approaches by exposing the tension between the basic tenets of feminism and those animating the modern American penal state. Finally, it discusses why purported cultural and utilitarian benefits from rape reform cannot outweigh the destructive effect criminalization efforts have on feminist discourse and the feminist message. The Article concludes that feminists should begin the complicated process of disentangling feminism's important stance against sexual coercion from a criminal justice system currently reflective of hierarchy and unable to produce social justice.

INTRODUCTION................................................................................582

I. BRIEF HISTORY OF CRIMINAL RAPE LAW REFORM.......586

A.Early Reforms Eliminated Formal Prosecution Barriers .... 586

B.Realist Rape Reforms Address De Facto Sexism in Rape Trials...................................................................................594

II.EXISTING FEMINIST CRITIQUES OF CRIMINAL RAPE LAW.............................................................................................603

A. Criminal Rape Laws Negatively Affect Female Agency ... 607

B.Criminal Rape Laws Negatively Affect Female Sexuality.............................................................................611

C.Criminal Rape Laws Abridge Civil Liberties.....................613

D.The Criminal System is Culturally and Structurally Inconsistent with Feminism................................................614

III.CRIMINALIZATION STRATEGIES SUPPORT CONSERVATIVE POLITICAL IDEOLOGY............................617

IV.RAPE REFORM HAS PRODUCED LIMITED BENEFITS......626

A.Rape Reform Has Limited Potential to Change Norms Regarding Date Rape.......................................................... 627

1.Prevailing Gender Norms Restrict Rape Reform's Expressive Value..........................................................629

2.Prevailing Criminality Discourse Thwarts Rape Reform's Norming Potential........................................637

B.Rape Reform Does Not Substantially Benefit Victims ...... 644

1.Broader Date Rape Criminalization Will Not Solve the Problem................................................................... 644

2.Encouraging Punitiveness May Harm Victims............. 647

V.FEMINISTS SHOULD DISENGAGE FROM RAPE REFORMS THAT STRENGTHEN THE PENAL STATE.........651

CONCLUSION....................................................................................657

INTRODUCTION

Over the past several years, feminism has become increasingly identified with crime control and the prosecution of men who commit offenses against women. Some feminist scholars have begun to express grave concern that "a punitive, retribution-driven agenda" now constitutes "the most publicly accessible face of the women's movement."(fn1) Twenty-six years ago, feminist scholar Catharine MacKinnon exposed the theoretical incongruity between feminism and the "liberal"(fn2) protection of women's rights through police power.(fn3) She observed, "The liberal state coercively and authoritatively constitutes the social order in the interest of men as a gender, through its legitimizing norms, relation to society, and substantive policies."(fn4) Despite MacKinnon's insistence that only radically social, as opposed to liberal, strategies adequately address rape, most feminists took her basic message(fn5) as a call to legal arms against rapists.(fn6)

The United States is one of the most punitive nations on earth.(fn7) Fear of crime constitutes a meaningful part of Americans' everyday lives and exerts significant influence on how Americans live.(fn8) As the United States became more and more punitive, feminists hopped on the bandwagon by vigorously advocating reforms to strengthen the operation of criminal law to combat gendered crimes. Today, many associate feminism more with efforts to expand the penal laws of rape and domestic violence than with calls for equal pay and abortion rights.(fn9) The zealous, well-groomed female prosecutor who throws the book at "sicko" sex offenders has replaced the 1970s bra-burner as the icon of women's empowerment.(fn10) Indeed, many regard criminal law reform as one of feminism's greatest successes.(fn11)

Feminists' feelings of victory are certainly understandable, given the widespread implementation of rape and domestic violence reforms and the massive shift in mindset on gendered crimes during the late twentieth century. Society moved from viewing domestic violence as legitimate or private to regarding batterers as among the lowest forms of criminals.(fn12) Rapists, especially those who violently rape children or strangers (as opposed to dates, wives, or acquaintances), are widely considered predatory monsters deserving of the most brutal forms of punishment.(fn13)

Nonetheless, for all the vitriol lodged against certain perpetrators of gendered crimes, feminist policies that challenge popular gender constructions and accepted views of criminality are not so well-liked. Even as they vehemently condemn sadistic abusers, many continue to deem other forms of coercive domestic control noncriminal and even acceptable.(fn14) Rape shield and affirmative consent laws, which I will refer to as "realist reforms," attempt to shelter date rape trials from gender stereotypes. However, these have proven unpopular and empirically ineffective.(fn15) Although reformers secured widespread legislative adoption of rape shield laws, such laws are riddled with exceptions, enforced sporadically, and remain controversial. Affirmative consent is nearly universally rejected by judges and legislatures, and the concept of requiring a "yes" before sex continues to engender public disdain.(fn16) For decades, the women's movement has made enormous investments in criminal law, and it is now time to examine critically the world feminist crime reform created.(fn17)

Feminists hoped enlisting state prosecutorial power would improve the lives of individual women and change norms about female sexual agency, male dominance, and courtship behavior. Unfortunately, that is not what happened. Although general criminal prosecutions have increased significantly, date rapes continue to be underreported and underprosecuted.(fn18) Some scholars even note the phenomenon of young women embracing retrograde notions of feminine mystique.(fn19) By adopting a prosecutorial attitude, which largely conceives of rape (and crime in general) as a product of individual criminality rather than social inequality, the feminist rape reform movement strayed far from its anti-subordination origins and undermined its own efforts to change attitudes about date rape. The feminist effort to send society messages about gender equality through criminal law was drowned out by the din of American criminal justice's ever-louder declaration of the war on crime.

This Article asserts that given the philosophical tension between criminal punishment and feminism, the problematic politics of the current American criminal justice system, the limited potential of rape laws to shape gender norms, and the effects of criminal rape law on women victims, feminists should be extremely wary of further entanglement with the penal system.(fn20) It exhorts feminists to commence a discursive shift and consciously distance scholarly dialogue about and political strategies to counter sexual violence from arguments and strategies that strengthen the American penal state.(fn21) Part I provides a brief history of rape reform, concentrating on doctrinal changes that culminated in rape shield and affirmative consent laws. This Part also sketches early feminist theorizing on rape. Part II surveys feminist literature on sexual violence and distills four primary critiques of rape reform from within feminist theory. Part III provides a new theoretical critique of the alliance...