Applications Of Feminist Legal Theory

Sex at Work

• ~S) Sex at Work SUSAN ESTRICH I. Introduction: The Modern Law of Rape DURING THE 19705 AND 19805, rape law reform occupied a prominent place on the agendas of feminist organizations across the country. It was said by many, and with good reason, that the history of rape law was a history of both sexism and racism; that too often the victim was victimized a second time by a legal system which focused more on determining her fault than the man's.... All of these criticisms were voiced loudly; all were largely true. And, unfortunately, they still are. This is not to say that feminist law reformers lacked the ability or skill to change the laws. In fact, the laws were changed, in virtually every state. So why wasn't the problem solved? Part of the answer is that in practice the law had long drawn distinctions between different kinds of rape. These distinctions survived, and in some cases obscured, attempts at law reform. When a woman was raped by a stranger, or better yet, by two strangers jumping from the bushes and brandishing weapons, courts waved aside the substantive requirement of resistance.... These are the cases that the system has long considered to be "real rapes," and "real rape" has always been considered a serious crime.... That has not been the case when the man is a friend, neighbor, or co-worker; or when the force consists of words and hands instead of guns and knives.... Reform or no reform, most such cases are never reported by their victims, most that are reported do not lead to prosecution and conviction.... Even so, the new statutes could easily have served as vehicles for meaningful reform. . . . In practice, [however] the revised statutes have not always protected women from being judged blameworthy. The inquiry has too often remained focused on the arr propriateness of the male-female relationship and the woman's role in provoking, accepting , endorsing, and affirming the rightness of her rape.' In the last analysis, reform failed not because feminists are not good at writing statutes, but because if there is one area of social behavior where sexism is entrenched 43 Stan. L. Rev. 813 (1991). © 1991 by the Board of Trustees of the Leland Stanford Junior L·niversity. Copyrighted Material 755 756 I SUSAN ESTRICH in law ... it is in the area of sex itself, even forced sex. Guns and gangs may be recognized as criminal, but to go beyond that is to enter a man's protected preserve, in life and in law. In life, this male domain is protected by the wielding of real power-economic , physical, psychological, and emotional. In law, it is protected by doctrines of consent, corroboration, fresh complaint, and provocation. It is protected by manipulating these doctrines to embrace female stereotypes which real women cannot meet. ... It is protected, in short, by the operation of sexism in law.... These very same doctrines, unique in the criminal law, are becoming familiar tools in sexual harassment cases. The rules and prejudices have been borrowed almost wholesale from traditional rape law. The focus on the conduct of the woman-her reactions or lack of them, her resistance or lack of it-reappears with only the most minor changes. The evaluative stance is distressingly familiar: One judges the woman's injury from a perspective which ignores women's views; or one compares her view to that of some ideal reasonable woman, or that ofwomen afraid to speak out against harassment for fear of losing their jobs; and thus one applies a standard that the victim cannot and does not meet. The old demons, such as corroboration and fresh complaint , are invoked as if decades of criticism of the criminal law had never taken place. All this is attached toa cause of action which carries no prison sentence, nor even the possibility of compensatory damages, let alone punitive ones, and where relief is limited to an often toothless remedy in equity.... Given their recent vintage, sexual harassment suits presented unique opportunities to shape the cause of action with a heightened awareness of the traditional sexist doctrines which the feminist efforts to reform rape laws highlighted. The fact that many federal courts jettison such opportunities daily, that the worst of rape litigation stands more as an example followed than one rejected, is the most persuasive and painful evidence of the durability of sexism in the law's judgement of the sexual relations ofmen and women. This essay seeks...