Up Against a Wall: Rape Reform and the Failure of Success

2. The Anti-Rape Movement and the Turn to Law

21 CHAPTER TWO THE ANTI-RAPE MOVEMENT AND THE TURN TO LAW Systems change, social change has to be paramount in what we do. . . . [We have to] change the social systems—the institutions and their practices, policies, and protocols—[to] recognize that historically women have been oppressed and assigned roles that we are to fulfill. (Michigan, urban) In this chapter, I explore not only how feminist activists changed laws regarding sexual violence, but how the movement itself was significantly altered by its engagement with legal concepts, language, categories, and constraints. Rape law reform was described by observers and participants as a resounding success, but it carried significant costs for the movement that have gone largely unacknowledged. The political history of the feminist rape law reform project I offer here is deeply influenced by socio-legal scholarship. Most researchers who have studied the anti-rape movement and rape law reform employ an uncomplicated understanding and assessment of legal change, evaluating the impact of reforms as a function of change (or lack thereof) in areas such as the attitudes of police and prosecutors, reporting and attrition rates, and experiences of victims (Bevacqua 2000; Martin 2005; Matthews 1994). This instrumentalist understanding mirrors the way most anti-rape activists themselves thought about law: as a social movement “tactic” that could be used and discarded at will, with few effects aside from the success or failure of specific reform campaigns.1 While it is clear that these are important indicators in assessing the success of law reform, the socio-legal tradition insists that engaging with law can have broader, more transformative effects than a narrow focus on implementation alone offers. The feminist rape law reform movement used law as a tactic for social change, but this choice had long-term consequences far beyond instrumental change. I argue that, viewed through a socio-legal lens, rape law reform occupies a much more interesting, contested, and transformative role in the trajectory of the anti-rape movement than has previously been acknowledged. Despite its rich history and claims of success, almost no scholars have explored the social movement legacy of law in the anti-rape movement—separate from the need for and impact of reforms themselves—even though a critical perspective on law and legal institutions was very present in the minds of early rape law reformers, as will be shown later in this chapter. 22 The Anti-Rape Movement and the Turn to Law Anti-rape activists had deep antipathy toward law that made them outsiders to the legal process. The poor political “fit” between feminist ideology and legal actors and institutions was compounded by the insufficiency of criminal law as a vehicle for aspirational reforms. As a result of the choice to focus on criminal law, reformers never articulated a positive vision of rights to go along with their political and ideological critique of rape. Feminist lawyers who participated in statutory reform campaigns moved on to other issues after the first wave of reform was complete, leaving the articulation and protection of the rights of rape victims in the hands of legal and medical professionals allied with state interests. And without the presence of a committed and engaged social movement or the assistance of committed legal strategists, RCCs quickly lost political leverage to ensure that those professionals complied with even minimum standards of fair treatment of those victims. Thus, an approach that takes into account social-legal understandings of the relationships among law, politics, and movement practices helps us to understand not only why the movement succeeded so effectively in the 1970s, but also why it failed so dismally over the course of the next two decades. Furthermore, the effects of legal mobilization helped to create the legal and political conditions that explain the forms and failures of the recent crop of rape law reform efforts—SANE programs, EC in the ER laws, and SORCN statutes—profiled in the case studies that follow. Re-Evaluating Law in the Anti-Rape Movement The role of law in movements for social change has been a hotly contested topic for more than four decades. While I do not intend to exhaustively review these debates over the role of law in social movements, since that has been done effectively and at length by other authors, I will highlight several themes that are important to understanding the scope and evolution of the anti-rape movement and which enrich our understanding of legal mobilization overall. As described in chapter 1, the conventional...