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FEMINIST JURISPRUDENCE: Equal
Rights or Neo-Paternalism?
by Michael Weiss and Cathy Young
Speech Codes
Not content to limit their assault on free speech to the workplace,
radical feminists have been in the forefront of the effort to establish
campus speech codes that prohibit "discriminatory" or
"harassing" speech. A student at the University of Michigan was
threatened with disciplinary action for pointing out in a computer
bulletin-board exchange that a charge of date rape could be false. A memo
from the dean informed him that his opinion constituted
"discriminatory harassment." [73]
In an attempt to counteract restrictions on speech on college campuses
across the country, Senator Larry Craig of Idaho sponsored the Freedom of
Speech on Campus Act of 1991. The bill would have prohibited universities
that receive federal funding from taking "official sanction"
against any student for speech protected under the First and Fourteenth
Amendments that had caused offense to others.
In 1992, MacKinnon testified in Congress against the bill. First noting
that to the extent that the legislation tracks the First Amendment, it is
redundant, she proceeded to advocate what amounts to an evisceration of
the First Amendment, defending speech codes as "policies . . .
regulating discrimination that takes expressive and other forms . . . for
the purpose of promoting equality in university settings." [74] That
is to say, it is appropriate to stifle words and ideas if the purpose is
to "promote equality." Unlike laws covering libel or slander,
which redress a particular injury intentionally directed at an individual,
such rules seek to redress alleged generalized injuries to more than half
of the population by silencing the other half. And, typically erasing the
distinction between words and conduct, MacKinnon asserted that for a
student to call another a "fucking faggot" was an
"assault" that "effectively threw [the listener] off campus
and out of class."
Ironically, MacKinnon uses workplace sexual-harassment rules to support
the effort to police expression on campus. Completing the circle, she
castigates courts that "have rendered discriminatory harassment as
protected speech" for failing "to follow the clear workplace
precedents which have recognized the activity the policies cover as
actionable for over 15 years." [75] She marvels that without speech
codes, "KKK scrawled on the wall [is] discrimination at work but . .
. protected speech in school." [76] The court-approved feminist
concept of harassment in the workplace turns out to be a legal toehold to
extend its influence to other areas such as colleges.
As the University of Michigan example cited above illustrates, campus
speech codes often affect not only racial or sexual slurs but the
expression of "insensitive" ideas. In the spring of 1993 on the
same campus, several students sent a letter to the Sociology Department,
the Affirmative Action Office, and the university president accusing
sociology professor David Goldberg of "racial and sexual
harassment" in his graduate course on statistics. His crime was not
insulting or mistreating anyone, but using statistical analysis to
challenge some claims of race and sex discrimination--such as the
assertion that blacks were disproportionately denied mortgage approval
because of race, or that women earned 59 cents to a man's dollar because
of discrimination. Although the university did not pursue harassment
charges, Goldberg was forbidden to teach the statistics class or any other
required course. His punishment was reduced after protests by senior
faculty members: the 35-person class was split into two sections, ne of
which Goldberg was allowed to continue teaching. [77]
The true agenda of the radical feminists (and other campus radicals) is
revealed by MacKinnon's comment that the "real issue of free speech
on campus [is] the silencing of the disadvantaged and those excluded by
the advantaged and powerful." [78] In this view, all debates are
nothing but struggles for power.
The Freedom of Speech on Campus Act never got out of committee. Recently,
several campus speech codes (including those of the universities of
Michigan and Wisconsin) have been struck down by courts as too broad;
other colleges, including Tufts University and the University of
Pennsylvania, have "voluntarily rescinded speech codes after
concluding they were ineffectual, divisive or illegal." [79] Still,
according to a survey by the Freedom Forum First Amendment Center, nearly
400 public colleges and universities in the United States have speech
regulations. About a third of the codes target not only threats of
violence but "advocacy of offensive or outrageous viewpoints . . . or
biased ideas." [80]
New Areas of "Harassment"
Another radical feminist proposal is that harassment policies should cover
schoolchildren. In California and Minnesota, state legislatures have
passed laws "to end sexual harassment by children." The
California law penalizes "physical, visual or verbal actions of a
sexual nature" that "have a negative impact upon an individual's
academic performance or create an intimidating, hostile or offensive
educational environment," and covers children from fourth through
twelfth grade.
For some, even that is not enough. Sue Sattel, a gender equity specialist
for the Minnesota Department of Education, complains that "California
is sending a message that it's okay for little kids to sexually harass
each other. . . . Title IX protects kids from kindergarten through
college." [81] On her home turf, Sattel has been more successful. The
Minnesota sexual harassment law covers children all the way down to
kindergarten. In the 1991-92 school year in Minneapolis alone, over 1,000
children were suspended or expelled on charges related to sexual
harassment. [82] In 1993, Cheltzie Hentz of Eden Prairie, Minnesota,
became the youngest complainant ever to win a federal sexual-harassment
suit--at the age of seven. She had been the target of abusive language by
boys on the school bus. [83]
Once again, the language defining prohibited behavior is extremely broad
and speech is punished as conduct. What is "a verbal action of a
sexual nature" that has a negative impact on academic performance?
Should ten-year-old children be expelled from school for making comments
about each other's developing bodies? Margaret Pena of the California
Civil Liberties Union correctly complains that the laws are not only vague
but confusing and unnecessary--as redundant as the Freedom of Speech on
Campus Act was according to MacKinnon. [84] School administrators already
have authority to discipline students who attack other children or use
obscenity, and they generally use their discretion to decide what action
is warranted in each case. Feminist activists are trying to take that
discretion away by raising the specter of lawsuits if the complainant
feels that adequate steps were not taken. In the case of Cheltzie Hentz,
school authorities had responded to letters from the girl's mother, Sue
Mutziger, by suspending afew of the boys and replacing the school bus
driver, after which the teasing stopped. Mutziger was not satisfied and
pursued her complaints with the federal and state governments. [85] The
U.S. Department of Education ruled that the school had "failed to
take timely and effective responsive action." [86]
Not content to allow traditional parental and school supervision to set
the boundaries of children's behavior, radical feminists are aiming to
impose their view of "correct" action and speech at the earliest
stages of development. One educational resource lists such "sexually
harassing behaviors" as "name-calling (from 'honey' to
'bitch')," "spreading sexual rumors," "leers and
stares," "sexual or 'dirty' jokes," "conversations
that are too personal," "repeatedly asking someone out when he
or she isn't interested," and "facial expressions (winking,
kissing, etc.)." [87] In some states, such behaviors--long considered
a normal part of childhood and adolescence--can now be severely punished.
What if some people still fall through the cracks of sexual-harassment
regulations? Increasingly, the argument that women are entitled to a
working or learning environment free of offensive or unwelcome sexual
expression is expanding to claim that they are entitled to such an
environment everywhere. Cynthia Grant Bowman, a professor of law at
Northwestern University, has proposed more legislation to stop behavior
that radical feminists dislike: "street harassment."
Writing in the Harvard Law Review, Bowman defines street harassment as
"the harassment of women in public places by men who are strangers to
them." [88] This includes wolf whistles, leers, winks, grabs,
pinches, and remarks ranging from "Hello, baby" to "You're
just a piece of meat to me, bitch." Examples are taken from sources
that include Mademoiselle magazine and a novel by Joyce Carol Oates.
According to Bowman, street harassment is not merely vulgar or
distasteful, but political. "By turning women into objects of public
attention when they are in public, harassers drive home the message that
women belong only in the world of the private." It can also
"serve as a precursor to rape." In any event, it "takes a
toll on women's self-esteem," restricts women's mobility and, even
when seemingly trivial, objectifies women.
Bowman's solution, of course, is a legal remedy. She argues that laws
directed at such behavior could be modeled on defamation laws or the
sexual-harassment laws under Title VII, and also suggests that street
harassment could be regulated as "low-value speech." Moreover,
she calls for the passage of statutes specifically targeting street
harassment, and litigation aimed at redefining the torts of assault,
intentional infliction of emotional distress, and invasion of privacy. Her
proposed model statute includes this language: "Street harassment
occurs when one or more unfamiliar men accost one or more women in a
public place . . . and intrude . . . upon the woman's attention in a
manner that is unwelcome to the woman, with language that is explicitly or
implicitly sexual."
In fact, truly egregious street harassment is covered by existing legal
remedies. Sexually aggressive physical contact such as grabbing or
pinching constitutes indecent assault or sexual battery. However, most of
the expression that Bowman and other activists seek to curb does not fall
into those categories. (An article in a women's magazine deploring the
plague of street harassment featured the "harassment diaries" of
10 women. Although among them they totalled over 50 incidents in a week,
none involved physical contact and only one involved obscene language.
Many consisted merely of ogling or staring; typical remarks were,
"Hi, baby. It's a nice day. You enjoying the weather?,"
"Have a nice day. God bless you," "Nice,"
"Sexy," and "You're beautiful.") [89]
The statute proposed by Bowman would punish a man for starting a
conversation with a female stranger with any sort of implicitly sexual
language--including, perhaps, an "unwelcome" pickup line in a
singles bar. Unconstitutional vagueness and overbreadth would appear to
stand in the way of such legislation. Even Bowman concedes that the
"Supreme Court would be inclined to strike down any such regulation
as gender-based, content-based, or underbroad." [90]
Such action by the high court is not only likely; it is mandated by
longstanding legal precedents. The risk of occasionally being offended is
the price we pay for living in a free society. The Supreme Court cautions
us against "the facile assumption that one can forbid particular
words without also running a substantial risk of suppressing ideas in the
process. Indeed, governments might soon seize upon the censorship of
particular words as a convenient guise for banning the expression of
unpopular views." [91]
However, most feminist legal theorists do not even deny that their intent
is to censor particular words because they serve as conduits for evil
ideas--namely, that it is proper for men to treat women as objects of
sexual attraction. Even if one agrees with their view that such
"sexual objectification" is detrimental to women's status, that
hardly warrants eviscerating First Amendment freedoms.
Pornography
Radical feminists have been conducting a far more outspoken--and far more
controversial--attack on the First Amendment in the realm of what they
view as pornography. MacKinnon, along with noted feminist writer Andrea
Dworkin, has been in the forefront of the fight to regulate sexual
expression they consider degrading to women.
While censorship of what Dworkin and MacKinnon call
"pornography" is opposed by many feminists--including some who
share many tenets of radical feminism--the pro-censorship position
dominates at present in feminist legal scholarship. When ACLU President
and New York University law professor Nadine Strossen examined post-1980
law review publications dealing with the Dworkin-MacKinnon approach to
pornography, she found that a slight majority of the relevant pieces
endorsed their position (not even including the writings of Dworkin and
MacKinnon themselves). With only two exceptions, law review publications
written from a feminist perspective supported the pro-censorship position;
most of the articles challenging it were written by men. [92] Strossen
adds that leading law schools have sponsored "conferences that are
heavily, if not exclusively, oriented toward the feminist pro-censorship
view." [93] At some of these conferences, anti-censorship feminists
were themselves censored. [94]
In 1983, the City of Minneapolis contracted with MacKinnon and Dworkin to
draft a suitable pornography code. While normally the city attorney would
have supervised the project, that was not the case here. Dworkin and
MacKinnon drew up a law that would make "pornography" a
violation of women's civil rights. Any materials in which "women's
body parts . . . are exhibited such that women are reduced to their
parts" or "women are presented as whores by nature" were
defined as pornographic. [95] Essentially, the law allowed any woman who
felt that certain "degrading" sexually explicit materials
violated her civil rights to sue the producers and distributors of
pornography for monetary damages or to seek an injunction on the
distribution of the materials. In addition, it gave women who had appeared
in pornographic materials the right to sue for "coercion into
pornography." A finding of coercion would not be negated by proof
"that the person showed no resistance or appeared to cooperate
actively in the photographic essions or the events that produced the
pornography; or . . . that the person signed a contract . . . that no
physical force, threats, or weapons were used . . . or . . . that the
person was paid or otherwise compensated." [96]
Allowing so broad a cause of action would in effect ban pornographic
materials through the bankruptcy courts. Rather than attack expression
they disliked through prior restraint, MacKinnon and Dworkin crafted a
more subtle approach that would enable them to eliminate such expression
through a statute giving new meaning to tort law.
The law forbade the defense "that the defendants did not know or
intend that the materials were pornography or sex discrimination."
[97] Examples of pornography for purpose of ordinance given by MacKinnon,
Dworkin, and their supporters included not only X-rated materials but
Rolling Stone album advertisements, French and Italian art films, and
works by lesbian writers and avant-garde artists. [98] In Canada, under
similar legislation based on the theories of Dworkin and MacKinnon, the
infamous Two Live Crew video, "As Nasty as They Wanna Be," has
already been banned. [99] Con
trast that to the treatment of Two Live Crew in the United States, where,
no matter how distasteful their material, no attempt to suppress it
succeeded under prevailing First Amendment standards, despite efforts by
zealous local prosecutors.
Can any sexual expression be considered "non-degrading"
according to Dworkin and MacKinnon? Dworkin is on record as stating that
"sexual intercourse remains a means or the means of psychologically
making a woman inferior." [100] And MacKinnon tells us that "the
liberal defense of pornography as human sexual liberation . . . is a
defense not only of force and sexual terrorism, but of the subordination
of women. . . . What in the liberal view looks like love and romance looks
a lot like hatred, a torture to the feminist. Pleasure and eroticism
become violation . . . admiration of natural physical beauty becomes
objectification." [101] Laws written by activists who hold such views
are likely to result in even more extensive restrictions on expression
than the ones imposed by traditional obscenity laws.
Because of the liberals' traditional revulsion toward censorship, the
anti-pornography effort led by Dworkin and MacKinnon caused dissension in
feminist circles. In 1984, a number of anti-censorship feminists founded a
group called the Feminist Anti-Censorship Taskforce (FACT). When an
Indianapolis ordinance similar to the one in Minneapolis and also crafted
by Dworkin and MacKinnon was challenged in court in American Booksellers
Association v. Hudnut, FACT filed an amicus curiae brief opposing the
statute. The brief was joined by the Women's Legal Defense Fund and by
prominent feminists such as law professor Susan Estrich, National
Organization for Women founder Betty Friedan, battered-women's advocate
Susan Schechter, and writers Kate Millett and Adrienne Rich--some of whom
otherwise share many tenets of radical feminism. [102] (MacKinnon has
compared anti-censorship feminists to "house niggers," saying,
"The labor movement had its scabs, the [anti-]slavery movement had
its Uncle Toms, and we have FACT.") 103]
In 1985, the United States Court of Appeals for the Seventh Circuit struck
down the Indianapolis ordinance as unconstitutional. [104] In an opinion
by Judge Frank Easterbrook, the court found that "the ordinance
discriminates on the ground of the content of the speech," since
"speech treating women in disapproved ways--as submissive in matters
sexual . . .--is unlawful no matter how great the literary or political
value of the work taken as a whole." [105] This, the Seventh Circuit
accurately noted, was a blatant violation of the Constitution, which
"forbids the state to declare one perspective right and silence
opponents." Indeed, it amounted to "thought control." [106]
Throughout its opinion in Hudnut, the court underscored the genius of
American free speech jurisprudence and the dangers of straying from its
fundamental tenets in the name of fighting the allegedly unique harms
caused by pornography. It pointed out that "[u]nder the First
Amendment the government must leave to the people the evaluation of
ideas." [107] All ideas, including the superiority of one race over
another, the confiscation and redistribution of all property, or the
eternal damnation of unbelievers, no matter how deplorable to some or most
of us, are allowed free traffic throughout our society. As the Seventh
Circuit panel emphasized, one of the things separating our society from
others in which people have been jailed for expressing opinions disliked
by the ruling régime is "our absolute right to propagate opinions
that the government finds wrong or even hateful. . . . Any other answer
leaves the government in control of all of the institutions of culture,
the great censor and director of which thouhts are good for us."
[108]
Clones of the unconstitutional Indianapolis statute have sprung up from
Los Angeles to Suffolk County, New York; its most recent incarnation is
the Act to Protect the Civil Rights of Women and Children introduced in
the Massachusetts state legislature in 1992. [109] So far, their efforts
have been for naught. (Another law based on the MacKinnon-Dworkin model
anti-pornography ordinance, enacted by voter referendum in Bellingham,
Washington, in 1988, was also struck down by a federal court.)
Undaunted by those losses, MacKinnon, Dworkin, and their followers keep
trying to find ways to devise legislation that could technically survive
First Amendment tests but would still enable them to suppress visual and
printed materials these new Puritans consider harmful. In 1991, the
anti-porn feminists joined forces with some religious conservatives to
introduce a bill in the U.S. Senate that put a new twist on the MacKinnon
approach. The Pornography Victims Compensation Act (PVCA) would have
permitted victims of sex crimes to sue anyone involved in the production
or distribution of pornography if the victim could show a link between the
pornographic material and the crime. [110] The bill's main sponsor, Sen.
Mitch McConnell of Kentucky (a conservative Republican), received advice
from Catharine MacKinnon in the early stages of its drafting.
However, as with the Indianapolis ordinance, the bill ran into opposition
not only from civil libertarians but from liberal and even radical
feminists. In addition to FACT, another group, Feminists for Free
Expression (FFE), was organized to oppose the PVCA and collected
signatures from prominent women writers, artists, and activists on a
letter to the Senate Judiciary Committee against the bill. The New York
and California chapters of the National Organization for Women opposed it.
While the Committee approved the bill by a 7-6 vote, the full Senate
failed to vote on it before the end of the 1992 session; it seems unlikely
to be revived.
The sweeping view of obscenity proposed by anti-pornography radical
feminists has made its strongest inroads in Canada, where free-speech
protections are in some ways considerably narrower than in the United
States. (For instance, Canadian law criminalizes expressions of ethnic,
racial, or religious hatred.) In February 1992, the Canadian Supreme Court
voted unanimously in Butler v. The Queen to redefine Canada's criminal
obscenity laws to apply to any material that "subordinates, degrades,
or dehumanizes." [111] That decision ran counter to the position of
many liberal professionals' and women's groups who favored retaining the
modern view of obscenity law. The Court's response to their objections was
that free speech guarantees were only intended to protect
"non-violent" expression. Justice John Sopinka stated that any
free speech interest in a case involving a Winnipeg adult store owner was
offset by "harm engendered by negative attitudes against women,"
that is, by the likelihood that pornography would cuse men to mistreat
women physically and emotionally. [112]
This Canadian Supreme Court precedent is certain to spawn a flood of
expensive litigation--not only because more material will facially fall
into a category so broadly defined, but also because the Court left the
precise criteria for "degrading" material to prosecutors'
imaginations. Police detective Bob Matthews explains the obvious: "[I]t
won't be until we've had more court decisions dealing with actual material
and the term 'degradation' that we will be able to say with any real
certainty what is degrading material and what isn't." [113] In the
United States, such a broadly phrased law would presumably be invalidated
by the constitutional requirements that laws must be sufficiently clear
for a reasonable person to know when his actions violate that law.
Anti-censorship feminists point out that what some feminists find
degrading--for example, images of women joyfully engaging in sex acts with
many partners--could be considered liberating by others. [114] Again,
while demeaning someone through words or imags may be vulgar and
offensive, our modern jurisprudence has generally not found that to be
sufficient cause for legal action, drawing a clear line between conduct
that causes physical harm and expression that does not. It is a
distinction worth preserving.
As censorship opponents had warned, the anti-pornography feminists, armed
with the powerful weapon of the Supreme Court decision in Butler, were not
content to limit its reach to "hard-core" pornography. Canada's
radical feminists have stepped up the campaign to impose their views on
the rest of society. Without even resorting to a friendly legal system,
they have succeeded in banning the Miss Canada Beauty Pageant and pulling
"sexist" beer commercials from television. [115]
In other countries, anti-pornography feminists have resorted to more
militant action, not unlike the old temperance advocates who supplemented
their legal battles with smashing liquor store windows. Sometimes, they
have been shielded from accountability for their acts by sympathetic
judges. In Australia in 1993, Magistrate Pat O'Shane acquitted five
protesters caught defacing an advertising billboard which showed a woman
being sawed in half by a magician. O'Shane used a discretionary provision
of state law to release the women without convictions, costs, or damages,
declaring that the real offenders were the advertisers. Criticized for
gender bias, O'Shane responded, "Women have a different worldview
than men. . . . We have a duty to bring that to bear on how we discharge
our functions." [116]
To disapprove of censorship is not to say that people have no right to
object to offensive materials. Certainly, private owners of stores,
newsstands, and movie theaters can exercise discretion in the types of
materials they choose to display, and citizens have the right to attempt
to influence--though not through harassment or intimidation--private
owners' decisions about the materials they carry.
The constitutionality of zoning ordinances that permit communities to
limit the locality of enterprises trafficking in sexually explicit
materials is not the subject of this paper. What is certain, however, is
that broad restrictions on expression that go beyond those limitations and
attempt to stamp out certain kinds of material altogether are impossible
without eviscerating the First Amendment.
Criminal Law
In addition to civil rights such as free speech, radical feminists are
also trying, in effect, to dismantle equal protection in the criminal
code. In their well-founded concern with violent crimes against
women--particularly rape and domestic battery--the radicals are intent on
eliminating many procedural protections for men accused of such crimes. Of
course, there is no reason to think that such encroachments on procedural
process will remain confined only to rape cases; but to those feminists
who dismiss autonomy, liberty, and privacy as mere male illusions, that is
not a matter of great concern. At the same time, radical feminists are
taking exactly the reverse doctrinal approach to cases of women who kill
their partners. They have worked to create a new procedural defense for
such women--the battered woman syndrome, which, if taken to its logical
extreme, could free any woman who committed violent crimes. This paradox
suggests that to the radical feminists, procedural protections belong
exclusively to woen. The overweening power men theoretically possess in
the "patriarchy" in which we live is used as justification for
eviscerating the rights of actual men.
Rape
Historically, Anglo-American law has treated rape as one of the gravest crimes,
deserving of capital punishment. However, feminists in the 1960s had cause to complain
about the treatment of complainants in rape cases. Many courts took the position that rape
complainants were inherently less trustworthy than complainants in other crimes. Their
attitude was encapsulated in the admonition of 17th-century jurist Lord Matthew Hale:
"Rape is . . . an accusation easily to be made and hard to be proved, and harder to
be defended by the party accused, tho never so innocent." [117]
In many states until the 1970s, a version of that warning was used to advise juries to
examine cautiously the testimony of the complaining witness, particularly if she was
"unchaste." [118] Many courts demanded independent
corroboration of every element of the woman's testimony although such corroboration was
not a prerequisite to conviction in robbery, assault, or kidnapping cases. [119] Rape laws usually required proof not only of force but of
resistance to force; the prevailing view was that "rape is not committed unless the
woman resist the man to the utmost limit of her power." [120]
Victims of other crimes against person or property were not required to resist to prove
that a crime had been committed.
It should be noted that legal precedent in many states stressed only
"reasonable" resistance. In a 1968 ruling, the California Supreme Court said,
"The amount of resistance need only be such as to manifest her refusal to
consent." [121] California courts have generally followed
such a standard since as early as 1931. Most traditional rape laws also modified the
resistance requirement in cases where the victim was prevented from resisting by threats.
In New Jersey, the Appellate Division invalidated the "utmost resistance" test
in 1961, noting that "[s]ubmission to a compelling force, or as a result of being put
in fear, is not consent." [122]
Nonetheless, in a number of fairly recent cases female complainants were held to a
standard that seemed to require them to risk physical harm. In 1973, the Wyoming Supreme
Court reversed the conviction of a man who got into the car of a woman he had met in a bar
(despite her protests), made her stop on a deserted road, and told her he was going to
rape her. When she protested, he "put his fist against her face and said, 'I'm going
to do it. You can have it one way or the other.'" [123]
The court found that the trial judge (sitting without a jury) had erred in considering the
actual fear that the woman experienced rather than "reasonable ground for such
fear," and that evidence of a threat sufficient to justify nonresistance was
"far from overwhelming." [124]
The 1970s saw a concerted push for rape law reform to substantially modify or drop the
resistance requirement and eliminate inquiries into the sexual lives of complainants. In
1986, the California Supreme Court ruled that under the state's revised rape statute,
physical resistance was not necessary to prove rape. [125]
However, proof "[t]hat the act was accomplished by means of force [or fear of
immediate and unlawful bodily injury]" was still required. [126]
In the instant case, the woman had been prevented from leaving the defendant's house by
his refusal to unlock the front gate, and had finally submitted to sexual intercourse
after prolonged verbal and physical intimidation by him (which included grabbing her by
the collar, flexing his muscles and saying, "I can make you do anything I
want"). [127] In its decision, the court emphasized:
Although resistance is no longer the touchstone of the element of force, the reviewing
court still looks to the circumstances . . . including the presence of verbal or nonverbal
threats, or the kind of force that might reasonably induce fear . . . to ascertain
sufficiency of the evidence of a conviction. [128]
For many feminists, that is not a sufficiently radical position. They pursue a double
strategy: first, to reverse the presumption of innocence in rape cases by making consent
an affirmative defense instead of an element of the crime (thereby making sexual
intercourse per se suspect and in need of defense); second, to change the definition of
consent so as to make it more difficult to prove, thus facilitating convictions. Both
reforms are already established in Canadian law; parts of these proposals are also being
incorporated into law, both by statute and by judicial fiat, in the United States.
The new feminist jurisprudence hammers away at some of the most basic foundations of
our criminal law system. Chief among them is the presumption that the accused is innocent
until proven guilty. The meaning of that rule is encapsulated in the oft-repeated maxim
that it is better to free ten guilty persons than convict an innocent one. Long ago, we as
a society decided not to sacrifice the rights of individuals to the benefits of punishing
more people, and mandated that only those unquestionably guilty should suffer the
penalties of the criminal law. [129]
Closely related to the application of this principle is the requirement that the state
must prove its case beyond a reasonable doubt in order to convict a defendant. The Supreme
Court gave constitutional status to this requirement in 1970 when it declared that the
"Due Process Clause protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime with which he is
charged." [130] The purpose of this rule, which has been
a part of the common law since at least the 18th century, is to reduce the risk of a wrong
conviction. [131] "Throughout the web of the English
Criminal Law," noted a British court, "one golden thread is always to be seen,
that is the duty of the prosecutor to prove the prisoner's guilt." [132]
To convict a person of any crime, the state must ordinarily prove two things: an act
(actus reus) and a guilty state of mind (mens rea). Each crime is defined by its elements,
which dictate what actions and what state of mind must be shown in order to prove a
defendant's guilt. [133] Thus, burglary requires entry into a
dwelling at night to commit a felony therein. [134] That means
the elements of burglary are: 1) activity occurring between dusk and dawn, 2) penetration
into a place where people dwell, and 3) an intent to commit a felony once inside the
dwelling. To convict a person of the crime of burglary, the state must prove all three
elements beyond a reasonable doubt.
There are some very limited circumstances in which the burden of proof shifts to the
defense. In some crimes, once the act has been proven, the defendant may show certain
excuses or justifications that serve as exculpatory affirmative defenses. Some of those
affirmative defenses include self-defense, duress, and insanity. The defendant generally
bears the burden of proving those defenses by a preponderance of the evidence. A
defendant, however, is only required to prove an element if the defense is
"especially unusual." [135]
As commentators have pointed out, frequent shifting of burdens of proof onto defendants
would severely undercut the constitutional and common law precept that the prosecution
must prove its case beyond a reasonable doubt. Otherwise, "legislatures would be free
to impose substantial burdens of proof on defendants by merely re-defining crimes, taking
out critical elements and fashioning them into defenses instead." [136] One of the definitive treatises on criminal law, appearing
in the Columbia Law Review more than 40 years ago, gives an uncannily prescient
example of just this sort of unacceptable burden-shifting:
[A] state legislature, outraged by some shocking crime, might attempt to re-define rape
by abolishing that crime and imposing a similar penalty for "fornication"
defined as extramarital sexual intercourse, but permitting the accused to escape liability
if he could prove consent. [137]
Yet what was once considered an obvious example of injustice is very close in essence
to what many feminists propose today.
To circumvent the "reasonable doubt" standard in rape cases, feminists have
sought to alter the elements of the crime. The crime of rape, for instance, has
traditionally been defined as "forced sex without consent." [138] Under that definition, the burden of proof on the issue of
consent, as with every other element of the crime, fell upon the government.
In states such as Michigan and Illinois, revised rape statutes have eliminated
nonconsent as an element of the crime, instead making consent a defense available to the
accused. At least in theory, that is a step toward destroying the presumption of innocence
on the issue. However, both states specify that once the affirmative defense is raised,
the burden of proving nonconsent shifts back to the prosecution. [139]
That shift had made the statutory changes unsatisfactory to many feminist legal scholars.
A 1988 law review Note, Focusing on the Offender's Forceful Conduct,
explicitly proposed a "burden-shifting criminal sexual assault statute" that
defined criminal sexual assault as an act in which "[t]he actor uses any . . . form
of force, threat of force, or coercion to accomplish sexual penetration" and
permitted consent as an "affirmative defense," requiring the accused to prove
consent "by a preponderance of the evidence." [140]
Consent is defined as "a freely given agreement to the act" rather than
"lack of physical or verbal resistance or submission." The proposed model
statute specifies that "force, threat of force, or coercion" includes but is
not limited to circumstances in which "the actor overcomes the victim through
the use of physical force," threatens to use violence, or uses a position of
authority to coerce the victim. [141]
The State of Washington has openly shifted the burden of proving consent to the
defendant. The Washington Supreme Court states that "we believe the removal from the
prior rape statute of language expressly referring to nonconsent evidences legislative
intent to shift the burden of proof on the issue to the defense." [142] The result of this unconstitutional burden-shifting will be
not to jail more violent rapists--lack of consent is easy enough for the state to prove in
those cases--but to make it easier to send someone to jail for failing to get an explicit
nod of consent from an apparently willing partner before engaging in sex.
In 1979, for instance, New Jersey passed the so-called NOW bill designed to make it
easier to prosecute rape cases. In this instance, the revised rape statute eliminated any
references to nonconsent and defined "sexual assault" as "an act of sexual
penetration with another person [when] [t]he actor uses physical force or coercion." [143] In a 1992 case styled In the Interest of M.T.S.,
the New Jersey State Supreme Court ruled that absent "affirmative and freely given
permission," the requirement of "force or coercion" is satisfied simply by
the physical pressure inherent in the act of penetration. [144]
The case involved a male teenager found guilty of juvenile delinquency for an act of
sexual assault on a teenage girl. The trial judge in Family Court determined that the
teenagers had voluntarily gotten into bed together and engaged in consensual "heavy
petting" but the boy had initiated intercourse without the girl's consent. (When told
to stop, he withdrew almost immediately.) The Appellate Division reversed the verdict
because the girl expressed no objection to intercourse and there was no "unusual or
extra force" involved in penetration. The Supreme Court voted unanimously to
reinstate the adjudication of delinquency. In a decision that extensively quoted from
feminist legal literature, the court stated:
The New Jersey Code of Criminal Justice does not refer to force in relation to
"overcoming the will" of the victim, or to the "physical overpowering"
of the victim, or the "submission" of the victim. It does not require the
demonstrated non-consent of the victim. Under the new law, the victim no longer is
required to resist and therefore need not have said or done anything in order for the
sexual penetration to be unlawful. The alleged victim is not put on trial, and his or her
responsive or defensive behavior is rendered immaterial. . . . To repeat, the law places
no burden on the alleged victim to have expressed non-consent or to have denied
permission, and no inquiry is made into what he or she thought or deired or why he or she
did not resist or pro-test. [145]
Susan Herman, the assistant deputy public defender in the case, was prompted to quip
that from now on in New Jersey, "you should have a condom and a consent form when you
go on a date." [146] Another way of shifting the burden
of proof is for the judge simply to omit instruction on the state's burden of proof beyond
a reasonable doubt, which is essentially what was done in the celebrated rape trial of
heavyweight boxer Mike Tyson in Indiana in 1992. [147]
Some feminists are deeply skeptical of the very concept of consent as a defense in rape
cases. Carol Sanger writes in the Los Angeles Times,
Consent--agreeing to something--is usually not a hard concept to understand. It may at
first appear more complex in the context of rape. One reason is simply its unexpected
presence. There is no other crime defined in terms of consent. Only in rape is the victim
asked, "Did you agree to it?" Compare "Did you agree to be punched in the
face?" "Did you agree to be mugged?" [148]
That comment reveals an astounding lack of comprehension that almost every illegal act
is framed in terms of consent. Battery, for instance, is "intentional and wrongful
physical contact with a person without her or his consent that entails some injury or
offensive touching"; theft is the taking of property without the owner's consent. [149] The point is that almost no one (except boxers) agrees to
be "punched in the face," but people do routinely agree to sexual intercourse;
therefore one cannot assume lack of consent from the act itself. Intercourse is very
rarely accompanied by explicit consent. That is why in rape trials, proving actual
nonconsent has been essential before a person can be convicted and imprisoned.
Some feminist legal scholars proclaim their commitment to traditional standards of the
burden of proof. "The constitutional requirement of proof beyond a reasonable doubt
may well be difficult in cases where guilt turns on whose account is credited as to what
was said," writes Susan Estrich. "If the jury is in doubt, it should acquit. If
the judge is uncertain, he should dismiss." [150] The
catch is that Estrich would expand the definition of nonconsent and therefore lower the
threshold of the proof needed to show nonconsent. She criticizes revised rape statutes
that focus on force or coercion by the defendant rather than on resistance by the victim
because those laws fail to "recognize a woman's interest in saying no and in having
her word respected in situations where force or threats in traditional terms are not
present." [151] Estrich also makes it clear that the only
reason she does not advocate verbal consent as the standard in rape cases is that the
country is "not ready" for such an approach. [152]
Meanwhile, she opts for the strict construction of "no means no," meaning that
men who persist (without using force) after a woman says "no" should be held
liable.
One such case occurred in Pennsylvania in 1988. A college student, Robert Berkowitz,
was accused of raping a woman student in his dorm room. The woman, his roommate's
girlfriend, had previously engaged Berkowitz in explicit sexual banter. On the afternoon
of the alleged rape, after they had talked for a while, the woman said that Berkowitz
moved over and "kind of pushed [her] down. . . . It wasn't a shove, it was just kind
of a leaning type of thing." [153] He began to kiss and
fondle her despite her protestation that she had to go and meet her boyfriend. According
to her, she said "no" several times but did not push him away. He claimed that
she returned his kisses and whispered "no" several times but moaned
"amorously" as she did so. Then they both got up and Berkowitz went to lock the
door; the lock worked so that the door could not open from the outside but opened from the
inside by turning the doorknob. The young woman admitted she knew this; she made no
attempt to leave. Next, he "put [her] down on the bed" and undressed her while
she was "just kind of laying there"; after less than a minute of intercourse,
during which she softly moaned "no," he pulled out and ejaculated. Berkowitz was
convicted of rape and sentenced to a year's imprisonment. [154]
On appeal, the Superior Court concluded that while the young woman's lack of resistance
did not invalidate her claim of rape, her own account contained no evidence of
"forcible compulsion" since she was not pushed down, restrained, or threatened.
In 1992, Berkowitz's conviction was struck down; that ruling was upheld by the
Pennsylvania State Supreme Court in June 1994. The decision was greeted by an outcry from
feminists and rape victims' advocates, who asserted (incorrectly) that it required victims
to resist. Said Kathryn Geller Myers, a spokeswoman for the Pennsylvania Coalition Against
Rape, "We've been educating people and the police have been educating people not to
resist so you don't face grievous bodily injury. Now the Supreme Court appears to say
you're going to . . . have to fight to the utmost. . . . That's what so dangerous." [155] (In fact, the court explicitly stated that its decision was
based on the lack of a threat of harm, not on lack of resistance; Pennsylvania law already
specifies that "the victim need not resist the actor in prosecutions" under the
rape statute. [156]) Under pressure from women's groups,
politicians immediately lined up behind a proposal by state Rep. Karen Ritter to change
the law so as to eliminate the forcible-compulsion requirement. [157]
"Politically, I call it rape whenever a woman has sex and feels
violated," says Catharine MacKinnon. [158] The courts
seem to be coming close to embracing this as a legal standard as well.
Feminist lawyers have pursued two other tacks to circumvent the constitutional
protections of the accused in rape cases. The first is the creation of a parallel civil
offense in which close cases would be much easier to prove. [159]
In a civil trial, the modicum of proof needed for a showing of liability is lowered
significantly, from "beyond a reasonable doubt" (about 99 percent) to "a
preponderance of the evidence" (about 51 percent), and evidentiary rules are relaxed.
[160] The second and much more ominous development is the
proposal to make rape a federal hate crime. [161]
The Violence Against Women Act, (VAWA) introduced by Sen. Joseph Biden and co-sponsored
by 60 senators, was passed by Congress in 1994 as part of the Crime Bill. That legislation
will, among other things, make "crimes of violence motivated by the victim's
gender" a federal civil rights violation. While the text of the bill gives no clear
definition of "gender-motivated violence," the statements of its sponsors leave
no doubt that they intend the provisions to apply to virtually all sexual assaults on
women. According to Senator Biden, "One of the things that we are trying to do . . .
is to make it a policy of the country that rapes are hate crimes committed against women,
crimes of violence directed disproportionately at one group based on their gender." [162]
Intuitively, the claim that "women are raped because they are women" may ring
true. But does that make it a crime of "sex discrimination," any more than a
man's pattern of having consensual sex with female partners only represents bias against
men? Of course, rape is primarily an act of violence and aggression, not of passion; but
the violent and aggressive impulse is channeled into what is indisputably, in the
technical sense, a sexual act. When a man's sexual impulses are directed toward women,
chances are that his sexual aggression will be, too.
The view that rape invariably or usually stems from hatred of women is not accepted by
researchers who study sex offenders. Psychologists Robert Prentky of the Boston University
School of Medicine and Raymond Knight of Brandeis University identify several types of men
who rape. The true women-haters, whom Drs. Prentky and Knight label "vindictive"
rapists, constitute about one-fifth of incarcerated sex criminals: "These men resent
women for all their perceived problems, and [the] sexual assault is intended to hurt and
humiliate them." About one-tenth are angry at the whole world, not just at women, and
are "as likely to assault men as women." Five percent are sexual sadists who
"derive pleasure from the victim's fear or pain." The rest are more or less
evenly divided between "sexual nonsadistic rapists" who "feel they are so
inadequate that no woman in her right mind will willingly sleep with them" and
fantasize about winning a woman's love by raping her, and "opportunistic"
rapists who are primarily interested in sexual gratification and "rape on impulse
either while committing another crime [such as a burglary] or if they happen to find
themselves alone with a woman somewhere." [163]
Moreover, the theory of rape as an act of gender bias is undermined by the fact that
males too are sexually assaulted. While the true percentage of men among the victims is
unknown, one study found that about 10 percent of rape victims treated at a medical
facility in New Mexico in 1978 were male; in another, men accounted for 6 percent of the
victims treated at a South Carolina community mental health facility. [164] An analysis of Toledo police data by the Toledo Blade
in 1989-92 showed that about 7 percent of victims of reported rapes were men; in another 4
percent of the cases, the gender of the victim could not be determined from the name. [165] In one campus study of sexual victimization, the incidence
of date rape for gay students (three-quarters of them male) was 50 percent higher than for
heterosexual women. [166] Finally, the Bureau of Justice
Statistics National Crime Victimization Survey indicates that 6 to 10 percent of sexual
assaults involve male victims. [167] That's not even counting
sexual assaults on children, where up to a third of the victims are probably boys. And it
doesn't count prison rape, a crime the prevalence of which is little known.
The absurdity of the "hate-crime" approach to rape became evident when one
supporter of such legislation noted that "[i]f the assailant had a habit of raping
both men and women, it might be more difficult to show that the rape was motivated by
gender bias." [168] Is the "equal-opportunity"
rapist less reprehensible? Do males who are raped deserve less legal protection than
female victims?
VAWA will allow only damage suits, not criminal prosecutions, in federal courts. But
feminists are likely to argue that since crimes motivated by race are subject to criminal
prosecution under federal civil rights statutes, it is discriminatory to treat
gender-motivated offenses as lesser crimes. In that manner, federal civil rights
legislation could circumvent the double jeopardy clause of the Fifth Amendment--as in the
Rodney King case--by allowing two successive prosecutions for the same alleged sexual
offense. [169]
The "gender-motivated violence" civil rights provision of the VAWA can lead
to serious intrusions on civil liberties. One commentator notes that it would "invite
publicity-oriented trials in which the desire is not so much to win as to call attention
to the supposed injustice of American society." [170]
Civil rights suits for rape may open the way to inquiries into supposedly bigoted motives
and attitudes. Boston attorney Andrew Good points out that "with a civil case, you
face the prospect of a very intrusive investigation of your views: 'Are you or have you
ever been a sexist?'" [171]
That is exactly what the radical feminists want. In an op-ed article written after
William Kennedy Smith's acquittal in the Palm Beach case, MacKinnon enumerated the
advantages of treating rapes as civil rights cases: "Instead of asking did this
individual commit a crime of battery against that individual, the court would ask did this
member of a group sexually trained to woman-hating aggression commit this particular act
of woman-hating sexual aggression? . . . The testimony of other women . . . would be
central: how does this man treat women sexually? . . . We might have learned whether
pornography . . . was part of the defendant's training." [172]
Radical feminist legal theories of rape have made their furthest
inroads in Canada. In its path-breaking "no means no" rape law
passed in 1991, the Canadian government reversed the burden of proof in
rape cases, narrowed the definition of consent, and drastically limited
the definition of "consensual sex." [173]
The new definition will presumably make it much easier to convict
accused rapists. Under the law, sex is rape when the man fails to
"take reasonable steps" to ensure consent. [174]
Even with explicit consent, sex can be rape if the woman is drunk and
therefore considered incapacitated, or if one party is found in
"abuse of a position of trust or authority" over the other. [175]
Some Canadian courts have continued to hold that if the woman has not
"indicated at any point by words or actions that she objects,"
then "legally she has consented unless the man has used force,
threats, fraud or a position of authority to gain her submission." [176]
On the basis of this, the Nova Scotia Court of Appeal exonerated a man
of raping his teenaged stepdaughter (who was not under his authority,
since she was a ward of the province). At the behest of feminist groups,
who decried the decision as "reinforc[ing] the myth that a woman
being sexually assaulted should behave in a certain way," the
Canadian Supreme Court agreed in May 1993 to hear an appeal of the case. [177]
Should it reverse the lower court decision, the "no means no"
law will definitively become an "absence of a yes means no"
law.
continued on page 3
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MENSIGHT
