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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.
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