Applications Of Feminist Legal Theory

Introduction

Introduction FEMINIST CONCERN with rape emerged early in the women's movement.l Although the feminist agenda was first dominated by other issues (employment discrimination, passage of the Equal Rights Amendment, abortion),2 attention soon focused on male sexual violence toward women.3 Early feminists' views on rape reflected a singular consensus : Within the women's movement ... rape in the early 1970s was the feminist issue . It symbolized women's unique vulnerability to attack from men at any time and an attack involving a fundamental violation of their physical and sexual being . Unlike other issues at the time, such as prostitution or abortion, rape had the advantage of uniting all women, whatever their status, values or beliefs. Indeed , it has been wryly observed that on rape, and on rape alone, women on the radical right and on the radical left find themselves in agreement.4 Scholars credit 1971 as the year marking the beginning of scholarly attention to rape.5 In that year appeared Susan Griffin's "Rape: The All-American Crime" (included herein) 6 and Barbara Mehrhofand Pamela Kearon's "Rape: An Act ofTerror."7 Griffin's discovery of the fear of rape spawned other studies exploring the consequences of this fear.8 Mearhofand Kearon introduced the radical feminist view of rape as a political act that keeps women subordinate. With the publication ofSusan Brownmiller's classic in 1975,9 the topic ofrape took center stage. Brownmiller made several important contributions. First, she placed rape in historical perspective, from Biblical times to the present, thereby revealing rape as a pervasive although largely unexplored practice.1O Her book sparked further historical feminist studies of sexual violence.11 Copyrighted Material 405 406 I RAPE Brownmiller's work is noteworthy, too, for its reliance on sociological research. Behavioral scientists had long been interested in the subject of sex offenders.12 In 1971 Menachem Amir, an Israeli sociologist and student of famed criminologist Marvin Wolfgang, had conducted the first in-depth study of rape.13 Amir explored patterns and characteristics of the crime, including such factors as age, race, relationship, and previous arrest record ofboth victim and offender; modus operandi; and temporal and spatial patterns of the offense. Brownmiller's book disseminated Amir's research to a broader audience and thereby refuted rape myths. Among the most common myths are: (1) Mrican-American men are more likely to attack white, rather than Mrican-American, women; (2) rape usually occurs between persons unknown to each other; (3) rape is predominantly an explosive, unpremeditated act; (4) rape is always a violent crime in which physical force is inflicted; and (5) rape is always characterized by a showing of resistance by the victim . Although Amir's work had its feminist critics,14 his findings played a role in the law reform movement. Brownmiller made another contribution with her feminist analysis of the legal response to rape.I5 In particular, she criticized the requirement of corroboration; the admissibility of the victim's past sexual history; the requirement ofresistance by the victim ; evidentiary rules (inapplicable to other crimes) stemming from the male fear of a false rape charge; the chastity requirement; and the prejudicial effect of a previous sexual relationship between offender and victim. Prior to 1971, legal scholars had directed little attention to the topic ofrape. However , in that year, references to rape escalate.16 Early commentary emphasized the defendant 's rights, statutory rape, prior sexual history as evidence of character, consent as a defense, and corroboration. Subsequent studies call for law reform and criticize reforms as they are enacted. In addition, the focus shifts to the victim rather than the defendant, largely due to the concerns of feminist scholars.I7 Also, at that time, women formed consciousness-raising groups. They organized more structured discussions of rape soon thereafter. In 1971 a woman's group, the New York Radical Feminists (NYRF), held two conferences on rape. At the New York Radical Feminists Speak-out on Rape, participants revealed personal experiences. Conference participants criticized the criminaljustice system for its insensitive handling of victims. The subsequent New York Radical Feminist Rape Conference concentrated on statutory criticisms, especially in regard to New York's legislation.I8 The issue of rape also captured attention on the federal level. A major achievement of the anti-rape movement was the establishment of rape crisis centers.I9 In 1972 the National Institute ofJustice's Law Enforcement Assistance Administration funded the first rape crisis centers in Los Angeles; Washington, D.C.; and Ann Arbor, Michigan...