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Even according to its critics, feminism has been one of the most important influences on the substantive criminal law in the past fifty years. Feminism has changed legal understandings of rape and battering as well as the law of homicide and self-defense. Indeed, there is a growing awareness and body of scholarship showing that feminist concerns are not simply limited to ‘‘women’s’’ crimes—crimes either committed by female defendants (such as battered women who kill their husbands) or crimes disproportionately affecting women (such as rape and battering). Instead, the feminist critique emerges within the criminal law anywhere gender is found, namely anywhere the law reflects social norms about women, men, and their relationships. What follows considers four different feminist approaches: the call to equality, to subjectivity, to norms, and to civil rights.
Early Efforts to Reform The Law of Rape and Battering
Early efforts to inject feminist consciousness within the criminal law emphasized formal equality. And, not surprisingly, feminist concern and writing tended to focus on those crimes that appeared to burden women unequally— battering and rape. Early feminist writers urged that stereotypes about women infected legal understandings and prevented adequate law enforcement. They stressed, for example, that prosecutors often failed to ‘‘believe’’ women because of these stereotypes. A short skirt, a messy past, or an intimate relationship were all reasons to assume that the victim had consented, provoked the incident, or fabricated it for manipulative reasons. This credibility gap resonated widely and became a part of the culture’s understanding about why rape and assault laws had failed to protect women.
Based on this shift in cultural understanding, major efforts were launched in the 1970s to reform the law of rape and battering. In the case of battering, efforts focused on a new civil system of redress: A grassroots shelter movement advocated new laws authorizing emergency stay-away orders and criminal and civil penalties for violating those orders. In the case of rape, a national task force coordinated efforts to amend state rape statutes, recalibrating and renaming rape statutes, imposing gender neutral language, and limiting marital rape exceptions. While reform in the area of battering focused on prevention, legal doctrine itself was the target of much of the rape reform movement. Requirements of resistance, and corroboration of witnesses, were soon viewed with skepticism by judges and scholars. Legislatures enacted rape shield laws as courts jettisoned jury instructions warning that rape complaints were to be viewed with peculiar suspicion. By the end of the 1980s, the substantive criminal law of rape and the enforcement of domestic violence laws bore little resemblance to that which governed decades earlier.
The Second Wave Critique of Rape Law
By the 1980s, feminist theory had brought to bear upon rape law two significant and influential critiques—those of Catharine MacKinnon and Susan Estrich. MacKinnon argued that rape was part of a larger problem of female subordination. Rape law was not fundamentally about punishing forceful sexual acquisition, MacKinnon argued, but instead was intended to perpetuate male dominance by achieving female subordination. Since rape law did not prohibit much that was coercive sex, it legitimized male sexual aggression, thus encouraged women to seek male protection, and thereby reinforced the dominant position of men in society generally. Rape law defined rape for men, creating ‘‘rapists,’’ and thus leaving men free to achieve sexual acquisition by other coercive means. MacKinnon’s critique created substantial controversy by appearing to equate much that society viewed as consensual with coercive sex and, thus, rape. Ultimately, and despite this controversy, MacKinnon’s work would breed not only a new generation of feminist criticism of rape law but would also help to push legislators and others to consider rape law as emblematic of the ways in which the state might perpetuate women’s inequality even as it purported to reject that same inequality.
The second critique, by Susan Estrich, relied on more traditional ways of talking about the problems of rape law within the context of criminal law doctrine. Estrich’s immediate point was that rape law envisioned a particular kind of violence that made the only kind of ‘‘real rape’’ to be rape by strangers. In contrast, Estrich offered an account of the ‘‘simple rape,’’ a rape accomplished without ‘‘extra’’ violence and often by intimates, as ‘‘real rape.’’ Estrich’s account helped to focus substantial public attention on the problem of acquaintance rape, forcing students and scholars to question whether the criminal law had chosen to focus on a stereotyped version of the knife-wielding rapist to the exclusion of the more common and troubling cases of intercourse accomplished against the victim’s wishes. Although this debate raised serious questions about the meaning of force in the law of rape, much of the debate centered on questions of consent. Soon, criminal law scholars began to focus on questions of mental state and whether and what the defendant needed to know about the victim’s consent to constitute rape. Estrich took the position that the defendant could be held liable for rape based on a negligent mistake about consent, a proposition considered controversial from a traditional criminal law standpoint as inconsistent with a liability regime based on the defendant’s consciousness of wrongdoing.
The Estrich and MacKinnon critiques changed the way that rape law was taught in classrooms across America. But their influence was not without sustained criticism. Indeed, the entire feminist focus on rape came under significant attack. Popular skeptics urged that, by equating rape with consensual sex, the feminist critique was prudery in disguise. Other critics charged that feminists were simply exaggerating the problem and engaged in a highly publicized debate about the precise number of rapes in the country. Some legal critics put forth reform proposals that sought to separate ‘‘truly’’ coercive rapes from ‘‘sexual misunderstandings.’’ Even feminists’ traditional allies began to urge that the feminist account was partial. Critical race theorist Angela Harris and criminal law scholar Dorothy Roberts argued that white feminists had occluded rape as a means of racial domination, obscuring the ways in which black women experienced rape as the oppression of the ‘‘master’s’’ free sexual access.
Partly in response to these developments, feminist scholarship turned more explicitly to consider questions of coercion and autonomy. Lynne Henderson reminded students and scholars that rape law’s idea of force and consent was built upon social understandings of coercion that amounted to ‘‘scripts’’ of male innocence and female guilt. From here, new questions were asked about whether a policy of laissez-faire reform, popular in 1970s reform efforts, truly served women or, instead, left them to ‘‘bargain’’ for sex from a position of weakness (Hirshman and Larson). Views of statutory rape laws shifted dramatically because of this new emphasis. In the 1970s, many feminists supported the deregulation of sex between minors. By the 1990s, critics charged that statutory rape reforms had failed to recognize the degree to which, in the name of sexual ‘‘freedom’’ for minors, the law actually sanctioned forceful and exploitative encounters (Oberman; Olsen).
The quest for equality in rape law continues. Periodically, questions arise as to whether rape reform has really accomplished as much as it promised. It has been argued, for example, that feminists have been too quick to believe in the success of their critique. Some have maintained that despite ancient reforms the law remains too much the same. Elimination of the resistance requirement in theory, for example, has not eliminated resistance in fact because courts typically require a showing of something more than lack of consent to find rape (Schulhofer). Similarly, it has been argued that, despite apparent elimination of the spousal exception to rape rules, there is still no parity between rape by a stranger and rape by an intimate (West; Nourse, 2000). Finally, controversy remains about the true nature of consent in a world where norms about sexual relations are changing (Schulhofer).
Pornography and Violence
Catharine MacKinnon’s critique of rape law was a small part of a larger argument about the social subordination of women. That critique has focused attention not only on violence itself but also on representations of violence. MacKinnon argued that pornographic representations of women as subordinated objects (for example, women who experienced rape as pleasure) was central to the construction of a sexuality of dominance and inequality: ‘‘[p]ornography is a means through which sexuality is socially constructed. . . . It constructs women as things for sexual use and constructs its consumers to desperately want women to desperately want possession and cruelty and dehumanization.’’ Thus, MacKinnon goes on to state, ‘‘through pornography, among other practices, gender inequality becomes both sexual and socially real.’’ (MacKinnon, 1989, pp. 139–140).
MacKinnon worked with Andrea Dworkin to draft a model anti-pornography ordinance that attacked both the violence of the pornography industry and its portrayals of violently subordinated women. The groundbreaking ordinance, adopted in Indianapolis in 1984, defined pornography as a practice that discriminated against women; it thus explicitly linked the law’s notion of discrimination to violence against women. The Indianapolis law provided a civil cause of action to those victimized by pornography, allowing them to sue makers and distributors of pornography for damages caused by harmful representations. The two principal classes of potential plaintiffs envisaged by the statute were women who had been coerced into making pornographic films and battered or raped women who could show that the abusers’ use of pornographic material had contributed to the abuse.
The MacKinnon fight against pornography proved to be quite controversial among feminists because it appeared to impinge on free speech and liberal ideals of choice. Critics argued that the MacKinnon/Dworkin ordinance invited censorship and played into Victorian notions of women as asexual beings. Liberal feminists argued that women should be able to decide for themselves the kind of material they found enjoyable, sexually arousing, or dominating. Critics further predicted that the ordinance would have a chilling effect upon representations of unorthodox sexual conduct, including the sexual conduct of lesbians and gays. Supporters of the ordinance replied that the statute was being misconstrued by critics and that it did not attempt to censor all sexually explicit material but only discriminatory representations that harmed and subordinated women. The harm in question, they argued, was not so vague as to prohibit all explicit material but, rather, a form of harm with an evidentiary basis that had to be proved in court. In American Booksellers Ass’n. v. Hudnut (771 F.2d 323 (7th Cir. 1985)), aff’d, 475 U.S. 1001 (1986)), the Seventh Circuit court of appeals struck down the Indianapolis ordinance as unconstitutional. Admitting, at least for the sake of argument, the statute’s premise that pornography did subordinate women, the court of appeals nevertheless concluded that the law was a content-based regulation impermissible under the First Amendment. According to the court, the statute’s definition of pornography was the equivalent of ‘‘thought control,’’ establishing an ‘‘‘approved’ view of women.’’
The pornography battle revealed a significant rift within feminism between liberal and dominance feminists. That debate has certainly tempered enthusiasm for dominance-feminism. Yet, MacKinnon’s argument has proved influential in other guises. For example, despite the failure of the Indianapolis ordinance, a statutory definition of pornography similar to MacKinnon’s was ultimately sustained by the Supreme Court of Canada in Regina v. Butler (89 D.L.R. 4th (S.C.C. 1992)). MacKinnon’s notion of ‘‘harm’’—the harm caused by pornographic imagery—has been invoked in other debates within the criminal law, in particular, debates about hate crime statutes. More importantly, the link between violence and discrimination has proved quite influential, both legally and politically. Indeed, despite the judicial criticism of MacKinnon’s ordinance, by 1990, legislators began to propose a federal statute linking civil rights to anti-female violence.
The Call of Perspective: Self-Defense
Feminist influence in the criminal law has not been limited to questions of either rape or assault, subordination or formal equality. It has also focused attention on questions of perspective and difference. Self-defense law has been influenced quite dramatically by feminists’ insistence that the law failed to accommodate women’s ‘‘different’’ perspective. In the case of battered women, for example, feminists urged that the law failed to incorporate the lived experience of battering and lacked the kind of nuanced, contextualized standard necessary for fair adjudication of self-defense claims. As a result, feminists urged the need for legal standards and evidentiary reforms appropriate to women’s difference.
The call to perspective led to three important developments in the law of self-defense and elsewhere. First, courts adjudicating criminal cases involving female defendants were asked to address whether the proper legal standard was consistent with ‘‘women’s particular viewpoint and experience.’’ And some courts did, indeed, adopt legal standards applying the perspective of the ‘‘reasonable woman’’ or the ‘‘reasonable battered woman’’ (Cahn). Second, defense lawyers sought introduction at trial of battered woman syndrome testimony (Schneider). Relying upon the work of social psychologists and others, appellate courts in some cases and legislatures in others began to acknowledge that juries did not understand the different position of women in battering relationships, their perceptions of harm, and their difficulties in leaving. Third, in some cases, governors were urged to award clemency to battered women whose experience had been excluded at trial. In 1990, for example, Governor Richard Celeste of Ohio granted clemency to more than twenty battered women convicted of killing or assaulting the men who abused them on the theory that these women had been convicted under legal and evidentiary rules that failed to consider the relevancy of prior battering to their claims. Governor Schaefer of Maryland followed the next year with several commutations, which led to similar campaigns in other states.
While some feminists urged the need to contextualize the battered woman’s situation, others emphasized the degree to which the law of selfdefense was skewed toward the male image of a barroom brawl. Some argued that the rules of self-defense were inherently biased against women and that this applied to a variety of questions about the nature of the threat, the degree of its imminence, the proportionality of the response and the duty to retreat. Was it really a fair fight, they asked, if women are typically far less able to respond with their fists? Was it proper to assume that, if the woman had a weapon, it made her violence disproportionate? Did the retreat rule simply impose a duty to ‘‘leave’’ the relationship? Did exceptions to the retreat rule for cases occurring in the home impose an undue burden on those most likely to be victimized in the home?
Debate about these questions soon came to be standard fare for criminal law courses. Juxtaposing controversial cases, like Bernhard Goetz’s subway shooting, with battered women’s claims, casebooks presented a portrait of law in flux. Much of this debate still centers on controversial cases like the decision of the North Carolina Supreme Court in State v. Judy Norman (378 S.E. 2d 8 (N.C. 1989)). Norman’s case was an egregious one. She had been abused for almost two decades; her husband had forced her into prostitution, made her sleep on the floor and other indignities; she had tried to kill herself and, when she sought aid, her husband told the paramedics to let her die. Following upon these events, Norman killed her husband in his sleep. For this act she was convicted of homicide and the North Carolina Supreme Court refused to rescind that ruling based on the defendant’s claim of self-defense. For some feminists, Norman is representative of the problems of a law that assumes the battered woman who kills to be a vigilante rather than a victim of her circumstances. For critics, to accept Norman’s claim of selfdefense is to invite lawlessness. Although much legal commentary has been devoted to the Norman case, and its meaning for self-defense law, some feminists have questioned whether this is the proper focus of the legal inquiry, urging that most battered women kill in confrontational situations, not as in Norman while the man is sleeping (Maguigan).
Over time, there were some changes in the doctrine of self-defense, notably a tendency by courts to be more sympathetic to a ‘‘subjectified’’ standard. The most significant development associated with this contextualized approach, however, was evidentiary: the rapidly spreading approval of battered woman syndrome testimony by appellate courts. Reliance on such evidence moved from murder and assault cases to cover a wide variety of claims and defenses: Posttraumatic stress disorder or battered woman syndrome has been used by defendants under the rubrics of temporary insanity, diminished capacity, and duress in cases as various as fraud, child abuse, and manslaughter. Battered woman syndrome has been borrowed by prosecutors to prove criminal intent in murder prosecutions and to explain why a battered woman might not report the violence or refuse to testify. More controversially, analogues to battered woman syndrome, such as battered child syndrome and other excuses based on prior abuse, have appeared to burgeon in the wake of the success of battered woman syndrome testimony.
Not surprisingly, battered woman syndrome has become quite controversial. High profile cases in which male defendants have sought to borrow the arguments of battered women have caused many traditional scholars to doubt the wisdom of the syndrome, to question its scientific validity, and to emphasize its ability to encourage ‘‘abusive excuses’’ (Wilson; Faigman). This criticism has not gone unnoticed by feminists. Some have openly voiced doubts about whether ‘‘reasonable woman’’ standards perpetuate the very stereotypes that feminists have fought hard to overcome (Cahn). Others have worried that the subjectivity of the standard tends to undermine ‘‘women’s agency,’’ reimposing ancient images of women as helpless victims (Coughlin; Schneider). Others have suggested that the focus has been on the wrong problem, urging that one needs no special rule, no syndrome, to fit women within conventional self-defense doctrine. Instead, these feminists argue that the real problem is with our image of the battered woman and the law—our image of a woman killing a helpless man rather than a woman trying to leave (Mahoney) or a woman battling a knife (Maguigan).
The Power of Norms: Provocation
In the late 1990s, criminal law scholars interested in feminism focused on new topics and old topics in new ways. From the original focus on ‘‘women’s crimes,’’ such as rape and battering, attention has turned toward the way in which gender norms affect more conventional distinctions within the criminal law, such as the line between murder and manslaughter. Some of this work has served to highlight the role of emotion in the law and how ideas of emotion may carry with them gender norms that influence doctrines as various as duress, provocation, and even the voluntary act requirement (Kahan and Nussbaum). At the core of the shift in thinking is a move not only from surface equality or special treatment of women but toward a recognition of the ways in which cultural norms about relationships may be played out in all criminal law doctrines (Nourse, 2000).
At the center of this work is the provocation doctrine, which divides murder from manslaughter and, in some states, aggravated from less serious assaults. Provocation has been controversial among feminists for some time on the theory that it was a ‘‘male-focused’’ doctrine (Taylor). In the 1980s, this controversy was often targeted on the ‘‘cooling time’’ requirement in the law. Much feminist criticism focused on a widely taught California case, People v. Berry (556 P. 2d 777 (Cal. 1976)), in which a defendant choked his wife to unconsciousness, returned to her home to wait for her for twenty hours, killed her, and claimed, with an appellate court’s approval, that he was entitled to argue that he killed in the ‘‘heat of passion’’ (Coker). In the 1990s, however, this kind of argument erupted in the public sphere in response to a widely publicized case in Maryland, in which Kenneth Peacock shot his wife several hours after he found her in bed with another man. In explaining his October 1994 decision to impose a minimal sentence on Peacock, Maryland Judge Robert B. Cahill stated, ‘‘I seriously wonder how many married men, married five years or four years would have the strength to walk away, but without inflicting some corporal punishment . . . . I shudder to think what I would do’’ (Schafran, p. 1064).
The Peacock case ignited public protest and a judicial investigation because the judge articulated the normality of ‘‘punishing’’ women for violating the ‘‘rules of relationship.’’ This, in turn, raised new questions about the provocation doctrine. Under conventional criminal law approaches toward provocation, it was thought simply ‘‘natural’’ that a defendant did not have the power to resist the passions inspired by an unfaithful wife. Legal scholarship in the late 1990s, however, challenged the philosophical and normative bases of the idea of emotion as ‘‘irrational’’ or ‘‘compelling,’’ suggesting instead that claims of passion were in fact partial claims of reason (Kahan and Nussbaum). Under this view, the provoked killer’s claim for our compassion is not simply a claim for sympathy; ‘‘it is a claim of authority and a demand for our concurrence’’ in the reasons for his emotion (Nourse, 1997). This kind of critique made it easy for feminists to emphasize the degree to which the ‘‘rationality’’ of certain emotions may depend less upon psychology than upon social understandings of gender.
The focus on emotion and norms also helped to reinforce earlier shifts in feminist thought away from focusing on women’s victimization rather than their agency. In 1991, Martha Mahoney argued persuasively that battered women should not be viewed as victims but as agents, as women who were ‘‘trying to leave’’ relationships rather than women who were inexplicably ‘‘staying.’’ New work on provocation tended to confirm Mahoney’s efforts to shift the conversation toward women’s efforts to leave. Just as selfdefense law had failed to see battered women as ‘‘agents’’ seeking to separate from relationships, so too provocation law had failed to see that many of the cases denominated as ones of ‘‘passion’’ were in fact cases in which women had left or were trying to leave (Nourse, 1997). From this perspective, the provocation doctrine, it was argued, was less about protecting ‘‘emotion’’ than about protecting male prerogatives to enforce relationships; indeed, the provocation doctrine seemed to protect, in emotional guise, those who battered and stalked (Coker).
Questions about gender norms and the criminal law are likely to continue in debates about the law of homicide. Serious questions remain, for example, about the ways in which the law incorporates gender norms within the idea, not only of passion, but of time. This is important because of controversies about ‘‘imminence’’ in selfdefense claims brought by women and ‘‘cooling time’’ in provocation claims made by men. Some studies tend to show that men and women kill in different circumstances: Although women tend to kill when physically attacked, men tend to kill when their wives leave or are unfaithful. If this is right, then one set of doctrines, self-defense, is likely to govern female murder defendants and another set of doctrines, provocation, to govern the male defendants. This raises the question whether different emotion and timing rules in fact govern these claims and, if so, whether these claims are in fact different because they absorb social norms of gender. Put another way, they raise questions about why the criminal law has tended to see the cuckold-killer as a victim of his own emotions but the battered wife killer as a vigilante.
Criminal Law, Sex, and Civil Rights
If feminism has had a strong influence on criminal law statutes, doctrine, and scholarship, it has also spurred efforts to attack questions of inequalities by means of federal law. In 1994, the Congress passed and the president signed the Violence Against Women Act, a federal statute rendering changes in federal criminal law and creating a new ‘‘gender-motivated crime’’ subject to civil rights protection.
The Violence Against Women Act includes several kinds of provisions relevant to the criminal law. Some of its provisions specifically target existing federal criminal law and seek to encourage states to reform their criminal laws relating to rape and domestic violence. For example, the bill requires that states provide ‘‘full faith and credit’’ to other states’ domestic violence orders; offers incentives to states to increase law enforcement; and authorizes programs to advance the treatment of women victimized by violence, ranging from rape education and prevention to training state and federal judges. In two respects, however, the act makes significant, and controversial, changes in federal and state criminal laws.
The act provides, for the first time, federal penalties and prosecution for ‘‘domestic violence’’ crimes. State law enforcement officials had complained to Congress that, in some situations, batterers avoided prosecution or apprehension by moving across state lines. In response to such complaints, the Congress created a federal criminal statute addressing battering. One provision of the act makes it unlawful to travel across a state line with the intent to injure a spouse or intimate partner and then to commit a crime of violence during or as a result of that travel. Another provision asserts federal jurisdiction over conduct involving interstate travel with the intent to violate a domestic violence protective order. Thus, assuming the requisite intent and resulting injury, a defendant who attacks his wife may be charged, under federal law, for battery, rape, homicide, or kidnapping, as long as there is the requisite interstate travel. The constitutionality of this provision has been upheld despite attack on the ground that, like most traditional criminal jurisdiction of the federal government, these provisions require interstate travel.
More importantly, and certainly more controversially, the Violence Against Women Act created the first civil rights remedy for victims of crimes ‘‘motivated by gender.’’ This provision aimed at discriminatory violence, permitting women to sue for injuries inflicted by gendermotivated crimes. The congressional hearings leading to enactment of the Violence Against Women Act compiled a lengthy record of the failure of states, in law and in practice, to provide adequate legal remedies to women. These hearings also emphasized the ways in which rape and battering can be acts of sex discrimination.
In May of 2000, the Supreme Court of the United States struck down the civil rights portion of the Violence Against Women Act in United States v. Morrison (529 U.S. 598 (2000)). The court ruled on federalism grounds, holding that the federal government had no constitutional power to legislate a remedy aimed at discriminatory violence against women. The court rejected the argument that the federal government could act under the commerce clause, holding that Congress had no power to legislate under that clause unless economic activity was involved. The court also held the Fourteenth Amendment inapplicable because the remedy attacked private conduct rather than state-sponsored discrimination. Feminists decried this result, urging that the Supreme Court had misconstrued the remedy as a crime measure rather than an antidiscrimination statute. They also questioned whether the case was really about federalism, pointing out that many states had filed briefs supporting the constitutionality of the provision as consistent with states’ rights.
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