Copyright (c) 2000 Board of Regents of the University of Wisconsin System
Wisconsin Women's Law Journal
Spring, 2000
15 Wis. Women's L.J. 3
ARTICLE: RACE AND TWO CONCEPTS OF THE EMOTIONS IN DATE RAPE
Andrew E. Taslitz *
* Professor of Law, Howard University School of Law; Visiting Professor, Duke University
School of Law, 2000-2001; J.D., University of Pennsylvania, 1981; former Assistant District
Attorney, Philadelphia, PA. The author thanks his wife, Patricia V. Sun, Esq., and Professor
Margaret L. Paris, for their comments on earlier drafts of this article, and his research
assistants, Vicky Byrd, Mekka Jeffers, Rikki McCoy, Carla Bedrosian, and Sylvia Irvin.
Appreciation also goes to the Howard University School of Law for its funding of this project.
The author also thanks Loyola University of New Orleans, whose invitation to speak at their
conference on Women and Sexual Assault in April 1998 inspired this article.
SUMMARY:
... This means that women are held responsible for their emotions connected to sexual
desire while men are not. ... Based on that judgment, she feels the emotion of sexual desire.
... The primary trigger for male repression of sexual desire is a demure, modest woman. ...
The notion of gendered differences in sexual desire was with us at the birth of our nation. ...
In contrast, women's sexual desire is more rational. ... Yet even those who might generally
concede the wisdom of the evaluative view might reject it for sexual desire. ... Male sexual
desire, including that of the rapist, is both thought and feeling. ... There is some support for
the mechanistic view of Black female sexual desire in our cultural imagery. ... A whore's
sexual desire has a large cognitive component. ... Furthermore, sensitivity is a concept that
we can give clear conceptual content in a way of use to both judges and juries. ... Jurors
should be educated by an expert about how and why most of us hold a mechanistic view of
male sexual desire, but an evaluative view of female desire. ...
TEXT:
[*4]
I. Introduction
The rape law reform movement, which began during the 1990s, never achieved its goal of
substantially improving the reporting and conviction rates in date rape cases. n1 Nor did the
movement significantly tilt the system toward treating rape victims with greater dignity. n2
In a recently published book, I suggested changing the law of evidence in ways that might
help to fix some of the reform movement's failures. n3 My book, while suggesting a new
feminist approach to evidence law, did not, however, address the changes also needed in the
substantive definition of date rape in criminal law. This article seeks to fill that gap by redefining date rape to address gender and racial biases inherent in current definitions.
The article builds on the work of the philosopher Lois Pineau. Pineau argued that a man who
failed to make the necessary efforts to obtain affirmative evidence of a woman's voluntary
consent to sexual intercourse should be guilty of date rape, even if he sincerely believed that
the woman was consenting to that act. n4 She justified her approach [*5] based on the
theory of "communicative sexuality" - the idea that no sensible woman would ever consent to
sex without real communication about her sexual wants. n5 Any man who fails to make
serious efforts at communication must therefore assume the risk that he is wrong in believing
that "she wants it." n6
1
Pineau's proposal has faced devastating critique from commentators on three grounds. First,
her model of communicative sexuality has been deemed utopian, with radicals charging that
in a male-dominated world, communication can never render sex truly "consensual," and
liberals arguing that some women like sexual domination. n7 Second, she has been criticized
as imposing strict liability for a malum in se crime (a crime morally wrong in itself), an
approach inconsistent with sound principles of criminal punishment. n8 Third, her proposal
has been described as useless because rape myths, not the legal definition of date rape,
control how judges, juries, and police determine guilt. n9
I reject each of these critics' arguments and respond to the charge that Pineau's theory is
utopian by explaining that her critics ignore two competing notions of the emotions in law and
popular [*6] culture. Under one view, the "mechanistic conception," emotions are forces
impelling persons to action, physiological states over which we have little control and which
do not contain or respond to thought. n10 Our moral responsibility for having particular
emotions is thus nil, our moral responsibility for actions caused by our emotions limited. n11
Under the second view, the "evaluative conception," emotions express cognitive appraisals
and persons can, therefore, individually and collectively change their emotions through moral
education. n12 Accordingly, we are fully morally responsible both for having our emotions
and for acting on them. n13
My argument is that society wrongly views men as governed by mechanistic emotions, sex as
an uncontrollable force for which men are not fully responsible, while viewing women as
governed by evaluative emotions, sex as a rational choice for which women are fully
responsible. Current legal definitions of rape and date rape create room for these cultural
gendered conceptions of emotions to set the ground rules for rape trials. n14 However, the
evaluative view is more empirically accurate and morally desirable for both sexes.
Communicative sexuality embraces these observations, treating both men and women as
capable of controlling both their sexual desires and their resulting behavior. n15
As to the second objection to Pineau's theory, that it unjustifiably imposes strict liability, I
argue that Pineau's critics have misread her. Her theory would impose negligence liability on
a man who fails to make reasonable communicative efforts. n16 Pineau did not, however,
define how we gauge "reasonableness." I do so by arguing for the actions of the "sexually
sensitive personality." To explain what this means and why its use is wise, I argue for a
version of character morality (imposing criminal liability based on who we are, as revealed by
our actions) rather than for the now-dominant action morality (imposing criminal liability
based on what we do and on our accompanying mental states). n17 Under action morality,
negligence liability and strict liability are both controversial. n18
However, the morality crafted here embraces negligence liability, viewing indifference to
another's needs as "evil." n19 I therefore adopt a secular notion of evil as appropriate in
criminal law and explain why non-communicative date rape displays aspects of both the
lesser "instrumental [*7] evil" (using another person merely to further your own ends) and
"pure evil" (wanting to harm another). n20 Character morality also offers the theoretical basis
for understanding why we should be held responsible for how we feel, that is, for our
emotional life, when inflicting character-based harms.
The third objection to Pineau's proposal, that it is useless because rape myths rather than
rules of substantive criminal law decide rape trials, has some merit. My article concludes by
explaining how changes in substance make it easier to justify and implement changes in
procedure. Moreover, at several points in the article I examine the expressive function of the
criminal law: how the messages sent by a communicative theory of sexuality help to change
rape myths. n21 Changes in substance, procedure, and message combine to offer guarded
optimism about the future.
Our culture's attitudes toward race combine with those toward sex to complicate each of my
three major points in interesting ways, as I explain throughout the article. In particular, some
sexual behavior reaches our subconscious attitudes about racial deference - our "raced
2
emotions" - in ways that only the approach examined here can make evident. n22 For
example, it explains why African-American rape victims are particularly likely to be
disbelieved and what the law can do to redress that imbalance.
This article seeks to explore the implications of gendered emotions for date rape and to
articulate a coherent character morality justification for changed date rape laws, a task
ignored by other authors. Furthermore, this article both revises and revitalizes an important
feminist contribution, the theory of communicative sexuality, in a way that makes the theory
more practical and more effective by using justifications entirely missed by the theory's
original proponents. Additionally, this article examines the close connection in date rape trials
between substance and procedure. Finally, this article helps to complete a comprehensive
reform scheme articulated in my recent book, which is the first book-length treatment of a
feminist approach to evidence law.
Part II, which immediately follows this Introduction, defines the two competing concepts of
the emotions and explains how and why our culture embraces these concepts in thinking
about human sexuality. The Bible, American history, and social science demonstrate a
longstanding American belief that male sexuality is mechanistic while female sexuality is
evaluative (much space is devoted to history precisely to show the deep-seated nature of this
gendered emotional dichotomy in American life). Part II explains, however, that this belief is
empirically inaccurate and morally flawed, promoting rape trials [*8] based on both sexist
and racist preconceptions. The latter point is explored by examining White Americans'
attitudes toward African-American sexuality, revealing a link between American culture and
the legal system's embrace of the mechanistic vision of male sexuality and American racism.
The evaluative concept of sexual emotions holds everyone, male or female, Black or White, to
a realistic, non-utopian standard of equal responsibility.
Part III continues the argument by explaining why Pineau's imposition of a new form of
negligence liability is fully consistent with the moral dictates of the criminal law. Challenges to
imposing criminal punishment for "mere" negligence ignore the insight that the most
appropriate justification for invoking the criminal law is to condemn evil character. Part III
explains why this is so and why date rapists are "evil." Because the concept of "evil" includes
indifference to another's pain, a description shown to fit even the negligent date rapist,
negligence liability is a perfectly appropriate standard for criminal punishment. Specifically,
the non-communicative date rapist fails to demonstrate the "sexually sensitive personality"
that should be seen as the most morally sound guide to all Americans' sexual feelings and
behavior. Not only women, but men as well, can control and change their sexual character in
positive ways and should be held accountable for failing to do so. Communicative sexuality
promotes a theory of equal human worth in sexual relationships rooted in each person's
responsibility for his or her individual character, a worth that exists regardless of the
participant's sex or race.
Part IV concedes, however, that changes in the substantive definition of rape to match the
theory of communicative sexuality will not alone produce significantly fairer rape trials.
However, a new substantive definition of date rape, and new justifications for this redefinition, improve the chances for certain changes in rape trial procedures. Part IV explains
why this is so for five proposed procedural reforms: (1) relaxation of the bar in many
jurisdictions on admitting evidence of a rape defendant's prior acts of sexual coercion; (2)
new jury selection procedures to screen out jurors embracing the mechanistic conception of
male sexuality; (3) new jury instructions to educate jurors about communicative sexuality
and the sexually sensitive personality; (4) new forms of expert testimony to further this same
education; and (5) new techniques of cross-examination to expose a date rapist's indifference
to his victim's pain.
The article concludes in Part V by expressing the hope that the combination of substantive
and procedural changes recommended here can play a significant role in achieving the asyet-unrealized dream of rape trial juries seeing past distorted and oppressive patriarchal
values.
3
[*9]
II. Two Concepts of the Emotions in Criminal Law
A. Conflicting Views of the Emotions
Western philosophers have long debated about the nature of our emotions. The debaters fall
into two camps: the mechanistic view and the evaluative view. n23 Under the mechanistic
view, emotions are innate forces that impel us to action. n24 Emotions are "impulses,"
"drives," or "forces" more akin to physiological reactions than thoughts or perceptions. n25
While emotions may have an object, for example, a particular person with whom you are
angry, the object is seen more as an external cause triggering that emotion rather than
something that helps define the emotion itself. n26
The mechanistic view fits many of our popular conceptions about emotions. Emotions seem to
come from something other than the core of what we think of as our "self." They course
through the body with heat and urgency. n27
Because emotions are things that humans cannot control, under this view none of us are
morally responsible for what we feel. n28 We can, however, sometimes be held responsible
for choosing to act on our emotions. Even then, society feels compassion for actions
motivated by some strong emotions, say, jealousy, because our culture understands the
power of these forces that come upon them even when they wish they would not. n29
Nevertheless, society will hold people who act badly because of their emotions to some level
of culpability because each person can suppress the behavior, if not the feelings. The criminal
law, therefore, can promote conditioning, behavior modification, and suppression as ways to
put a lid on our emotions. n30
Most psychologists and philosophers today agree, however, that the evaluative conception is
more empirically accurate and normatively desirable. n31 Under this conception, reason and
emotion are inseparably [*10] linked. All people feel emotions largely because they have
certain thoughts. If they feel fear, it is because they have decided that a person or object is a
source of danger. n32 However, thoughts do not merely cause emotions. Thoughts also help
to constitute our emotions. n33
Why do most theorists adopt this view of emotions as rational activity? First, our physiological
reactions must be interpreted. Is a fast-beating heart, a dry-mouth, and a sweaty brow
indicative of fear, excitement, love, or a combination? Our understanding of the relevant
circumstances and our own nature helps us decide. n34 Second, even when we understand
that we are experiencing a particular emotion, our thoughts can vary the quality of the
emotion. Many people truly feel grief over the death of a beloved pet. For most such people,
however, the experience of grief over the pet's death is very different than that caused by a
child's death. n35
Correspondingly, social norms offer a basis for the moral critique of our simply having
emotions, as well as of our resulting wrongful actions. n36 Merely feeling emotions becomes
a subject of moral critique because we are seen as capable of changing our thoughts. We can,
through practice, education, and new experiences, learn to think in new ways. If we can
change our thoughts, then we can change our feelings. Therefore, we are responsible for
having those feelings. n37 Criminal law can also help to deter wrongful actions through its
educative function, changing how we feel. n38
Having certain emotions can be criticized, either because the factual beliefs inspiring the
emotions are wrong, or the beliefs are right, but we disapprove of the idea that those beliefs
justify having the emotion [*11] in question. n39 Operating under a false premise, a White
person may fear assault from a Black male because he believes that Black skin denotes
danger. Similarly, it is also excessive for someone to react with rage at the accurate
impression that another has forgotten his name. To the evaluativist, therefore, our emotions
can be shaped by moral education - teaching the White person not to fear Black skin and the
4
enraged person not to view others' forgetfulness as a grave insult. n40
Despite overwhelming empirical and normative support for the evaluative view, the criminal
law remains deeply conflicted in its attitude toward the emotions. Both the mechanistic and
evaluative views make their way into criminal law doctrine. n41 One example is common law
voluntary manslaughter. n42 One element needed to reduce murder to manslaughter is
killing in the heat of passion. n43 "Heat of passion" is described by courts as "blind,"
"unreasoning," or a force that "dominates volition." These words convey the heat and
physical urgency of the mechanistic view. n44 Under that view, a defendant's punishment
should be mitigated because his emotions impaired his volition. n45 In many jurisdictions
heat of passion alone, even if unprovoked or unreasonable, reduces murder from first to
second degree. n46
A further reduction to manslaughter requires more. The provocation into the heat of passion
must be by the victim. n47 In many jurisdictions, only certain kinds of provocation count - for
example, [*12] adultery. In other jurisdictions, while there are few precise limits on the
types of provocation, the jury must conclude that the type involved would provoke any
"reasonable man." n48 The law thus rejects the idea that uncontrollable passion necessarily
justifies mitigation. Instead, the law expresses an evaluative judgment: society feels
compassion for the offender only if he was justified in feeling such passion. Also, the law finds
such justification only if the victim provoked the offender with particular conduct. n49 Thus,
the law assumes that the defendant is responsible for his emotions, which is the essence of
the evaluative view. The law also judges the wisdom of the defendant's acting on his
emotions, for he deserves compassion only if he directed his rage at its cause: the victim.
n50
It is not only the law on the books that matters, but also the law in action: how juries,
judges, and lawyers understand and apply the law. n51 Regarding rape, the law in action
applies the evaluative view to women and the mechanistic view to men. This means that
women are held responsible for their emotions connected to sexual desire while men are not.
The consequences at trial are further abuse of the victim and a greater chance of acquittal for
her assailant. The law's adoption of the two competing conceptions of the sexual emotions
are rooted in our culture's adoption of a stereotypical model of gendered desire.
B. The Two Views and Rape Culture
1. The Model of Gendered Desire Described
In our culture's model of gendered desire, women are often portrayed as weak, dependent
creatures, more easily subject to the sway of hormone-enhanced emotion than reason. n52
Men, on the other hand, are portrayed as strong, cool under fire, the source of reason and
rationality. n53 These cultural images are curiously reversed when sexual [*13] desire is the
subject of discussion. In this realm, men are viewed as subject to an almost uncontrollable
lust, a biological urge they must fulfill. n54 Their natural inclination is toward beast-like
aggression to achieve sexual satisfaction. n55 Society does not blame men for this urgency.
Indeed, it is the hallmark of a real man. n56 For the sake of social peace, however, society
looks for ways to suppress males from acting on their desires. Even here, society sets outer
limits only. Society expects males to pursue sexual satisfaction aggressively, but society
labels provable male aggression beyond a certain point as bullying. Still, social norms allow a
wide range of aggression before the healthy male becomes a bully. n57
Our culture employs a variety of weapons to suppress male beast-like lust: fear of disease
and pregnancy; shame for adultery; and for the religious, fear of perdition. n58 While there
are competing images of sensitive men concerned about women's souls, n59 the animalistic
image retains its powerful grip. n60
Even after the purported sexual revolution of the 1960s and 1970s, however, society viewed
female sexual desire as less animal-like and more rational than men's. As a general matter,
society assumes [*14] that men will pursue and women will resist. n61 For some women,
5
resistance is attributed to a lower biological need for sex than felt by men. Today we
recognize that many women may indeed have strong sexual needs. However, their needs are
not ever-present, insistent, and rooted solely in physical attraction. Often, their passion is
stoked by caring, love, and commitment. n62
In the evaluative view of emotions, the woman makes a cognitive judgment about the worth
of an object, here, a man. n63 Based on that judgment, she feels the emotion of sexual
desire. n64 The intensity and quality of that emotion are partly defined by the cognitive
judgment of the man's worth. As the judgment of worth rises, so does the quality and
intensity of the emotion. None of this is to deny that biology plays a role too, but the
cognitive as well as the physical are constitutive aspects of the emotion. n65
The divergence in our society's concepts of sexual emotions based on gender reduces male
but increases female responsibility for sexual conduct to which one of the parties to a sexual
encounter objects. Remember that the evaluative view permits us to hold a person
responsible for what she feels, while the opposite is true under the mechanistic view. With
sexual desire, this means that women are responsible for feeling lust while men are not.
Under both views of emotion, we can be held responsible for acting on our emotions,
although the mechanistic view substantially mitigates that responsibility. The reason for
mitigation under the mechanistic view is that our other cognitive and behavioral processes
are impaired by emotions over which we have no control. Repression of explosive energies by
our impaired cognitive processes is the only hope for controlling behavior. The primary trigger
for male repression of sexual desire is a demure, modest woman. When sexually rational and
thus responsible women behave "provocatively," beast-like, barely rational men cannot
[*15] be blamed for misunderstanding or for the subsequent release of pent-up sexual
energy. n66
The picture becomes even more complex because we hold a dualistic notion of female
sexuality. We do believe that some women ("sluts") can be consumed by a physical,
animalistic lust, much like that experienced by men. n67 However, we judge such women's
animal needs differently than men's. We view women who feel such needs as "giving in" to
their bestial side. By "giving in", we mean more than that they let their emotions rule their
behavior, something for which we might condemn men for as well. Instead, we believe that
good women approach sex in an evaluative fashion; that is, we believe that women are
capable of rational emotions concerning sex. n68 A woman who is "swept away," therefore
becomes responsible if men misunderstand her behavior as showing that she consented to
unlimited sexual license. n69 Even after a rape, these women worry that they "sent the
wrong signals," "led him on," or "let the situation get out of control." They feel a sense of
blame and may not even characterize their being forced into non-consensual sexual
intercourse as "rape." n70 When women behave consistently with the mechanistic vision of
emotions, we thus continue to judge them by evaluative standards. n71 Either way, the
[*16] woman bears the risk of miscommunication or abuse. If she behaves rationally, she is
responsible for male behavior, and if she behaves mechanistically, she is responsible for the
consequences of her unseemly choices.
2. Biblical Roots
Having described the model of gendered desire, I now turn to its origins. Although Western
concepts of gendered emotions may have changed over the centuries, current concepts draw
on historical notions and ancient texts as seen through modern eyes. Many biblical tales, for
example, embody the roots of our dichotomous views of gendered sexual emotions.
Perhaps the most obvious of these tales is that of Lot and his two daughters. n72 God had
just destroyed Sodom and Gemmorah. Lot's wife, punished for the sin of looking back at the
destruction, had been turned into a pillar of salt. Lot's daughters, believing that they are the
only women left alive, and their father the only man, hatched a plot:
6
And the first-born said unto the younger: "Our father is old, and there is not a man in the
earth to come into us after the manner of all the earth. Come, let us make our father drink
wine, and we will lie with him, that we may preserve seed of our father." n73
The sisters did exactly as they planned, the elder daughter sleeping with Lot on the first
night, the younger on the next night. On each night, the daughters plied Lot with wine until
he was too drunk to be aware of their actions, then slept with him. Lot was little more than a
beast, easily stirred to desire when barely conscious, unaware of the object of his desire,
perhaps even unaware of his desire itself. For Lot's daughters, their desire stemmed from
their need for children, and they carefully planned how to sate that desire. They succeeded,
each bearing a son. n74
Many other Bible stories reflect these images of rational female desire, biological male desire.
n75 There are counter-stories, but even [*17] they generally fit the gendered scheme of
emotions argued for here. One example is the story of Joseph and Potiphar's wife. n76
Potiphar's wife does arguably at first seem to have a male-like physical need for Joseph, and
she labors mightily to seduce him. Joseph resists, either because of great strength of
character or because he does not feel a need to do that which he knows is wrong, n77 that is,
sleeping with his master's wife. To punish Joseph for spurning her, Potiphar's wife cries rape,
and Joseph is imprisoned. Joseph's behavior is viewed as saintly and a mark of his great
religious faith, precisely because it is so unusual. n78 Potiphar's wife is vilified in our culture,
a failed seductress who then lies, claiming rape, to seek her revenge. n79 Potiphar's wife's
intense need and fraudulent ways indeed serve as the source of the modern image of the
spurned woman who cries rape. However, Potiphar's wife and her modern descendants are
held responsible for their sexual misbehavior because they, more than ordinary, non-saintly
men, can and should do better.
The Bible also depicts other seductresses, like Delilah, who face willing males. n80 But Delilah
is villainous too, precisely because she knowingly uses her seductive power to prey on men's
mechanistic sexual needs. Delilah's desire is for Samson's strength, to steal that strength to
aid the Philistines and get for herself eleven hundred shekls of silver. n81 Samson is unwilling
to part with Delilah despite her nagging him to reveal the secret of his strength, so reveal it
he does. n82 She quickly has his hair cut, he loses his strength, and the Philistines put his
eyes out. Delilah is thus the wily seductress n83 and Samson the victim of her charms. n84
[*18] Accordingly, the best-known Bible stories, especially as portrayed in movies and seen
through modern eyes, depict female sexual desire as partly a cognitive, controllable emotion
and male sexual desire as biological, uncontrollable, and irresponsible. These biblical themes
recur throughout much of American modern popular culture. These themes recognize that
both genders can feel intense sexual need, but the nature and consequences of that need are
very different for men and women. Those differences show up even more strongly in the
sweep of American history.
3. History
a. The Eighteenth Century
The notion of gendered differences in sexual desire was with us at the birth of our nation. n85
Even in the early eighteenth century, there were complaints that many virtuous citizens
welcomed into their homes "an abandon'd Fellow, who has been often over-run with a polite
Disorder, debauched two or three innocent Virgins or kept half a dozen Negro Wenches in the
Face of the Sun." n86 Benjamin Franklin is one of the better known men stricken with "that
hard-to-be-governed passion of youth," embracing sexual adventures in Philadelphia and
London. n87 By the late eighteenth century, complaints about such male behavior waned,
however, for libertinism became an important aspect of masculine popular culture in America
and England:
7
The role of seducer and rake attracted men more than the role of husband. Rape was
glorified, a source of amusement, a demonstration of masculine sexual prowess. Men talked
about sex as a conquest, in which the woman was "taken," as if she were a piece of property.
Such "military metaphors," historian Anna Clark points out, "blurred the distinction between
rape and seduction." n88
The masculine libertine ideal clashed with the feminine ideal of passionlessness. n89
Passionlessness stressed female sexual self-control as among the highest of human virtues.
Female chastity thus symbolized the best in human morality. n90 Society only expected
passionless women because they were thought to possess "to an extraordinary degree, far
more than men, the capacity to control the bestial, irrational, and potentially destructive fury
of sexual pleasure." n91 Evangelical Protestant churches, where women became the
numerical majority between [*19] the 1790s and the 1830s, spread the new ideology, an
ideology well-received by women because, "by placing the solitary burden of moral agency on
women, which in Puritan society had been borne more equally by both sexes, women found
power in their submission and superiority in their righteousness." n92 In the name of
Christian duty, women entered the public sphere to battle prostitution and licentiousness.
Women thus became the "gatekeepers of an explosive, uncontrollable male sexuality," thus
ensuring the "continued reality of male libertinism...." n93
However, female sexuality was also seen as dualistic. Older notions of women's inherent
lustfulness remained. n94 Nevertheless, women were thought far more capable than men of
controlling such lust and thus were far more responsible when they chose to give in to their
lust. The stress was on "the biblical ideal that 'women who embodied God's grace were more
spiritual, hence less susceptible to carnal passion.'" n95 Men have less control over their
passion and therefore could be forgiven or even glorified, while female passion could not be
forgiven, nor its consequences forgotten. n96
In eighteenth century criminal trials, many features of near-modern rape trials took hold.
n97 A woman's sexual character became relevant to her responsibility in a sexual encounter
because a sexually experienced woman seemingly behaved like a male libertine rather than
the passionless ideal to which she was expected to conform. Unlike men, female libertines
were responsible for their choices, especially for behavior that ignited male lust. n98
Moreover, because women were presumptively responsible for controlling their own and
men's sexual passion, claims of rape were distrusted. Lord Hale's caution that 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" n99 entered American legal ideology via Sir William
Blackstone's Commentaries on the Laws of England, which reached the American colonies in
the late 1760s. n100 Blackstone urged jurors to receive Hale's caution and to consider
whether the witness was of "good" or "evil fame," how quickly the crime was reported,
whether the accused tried to flee, whether there was corroboration, and whether the victim
cried out. n101 All these concerns remained part of the law of rape until [*20] the antirape movement of the 1970s and 1980s. These same concerns continue to dominate
lawyers' arguments and jury deliberations, even in a post-rape-law-reform world. n102
b. The Nineteenth Century
In the nineteenth century, women's dualistic nature seemed magnified, with most women
being dominated by one half or the other. n103 Women were either "true" women or
prostitutes. A "true woman" displayed the virtues of piety, purity, submissiveness, and
domesticity. n104 "She preferred death to loss of innocence. As one man advised women in
1807, being by nature 'stronger and purer,' the true woman never gave in to let men 'take
liberties incompatible with her delicacy.'" n105 By contrast, "any woman found to be
engaging in premarital intercourse was in danger of being labeled a prostitute regardless of
whether money was exchanged or not." n106
8
Rape cases played on this dichotomy. Appellate judges saw rape trials as serving two goals:
protecting true women's chastity, but also protecting men's loss of liberty from the lies of
lustful females. n107 However, according to at least one commentator, judges disagreed
about whether women's consent lay primarily in the body or the mind. n108 Some courts
believed that the accuser had to show lack of consent in both the woman's body and in her
mind. Judicial decisions often stressed a woman's character. "Loose character" was evidence
that a woman, having had sex willingly before, was more likely to do so again. Indeed, to
ensure that neither body nor mind consented, courts required the utmost resistance by a
woman to male advances. n109 Leading commentator Peggy Reeves Sanday viewed such
practices as [*21] buying into the Puritan view that the body rules the mind and that sex is
essentially addictive. n110
Sanday's interpretation of these practices ignores why evidence of character and resistance
were admitted: to show the woman's ultimate responsibility for the sexual encounter. The
man was expected to be sexually aggressive, but it was the woman who presumptively had
the power to decline. The mind/body distinction can be seen as relevant to female
responsibility for sexual conduct in one of two ways. First, a woman might say no but really
mean yes. Her mind indeed wants to consent but either sees it as socially unacceptable to do
so or is excited by the male's continued aggression and thus by the game of resistance. In
this view, "every sexual encounter required a bit of struggle to overcome most women's
veneer of reluctance." n111 Furthermore, the men "assumed the women involved to be, at
heart, as willing as they." n112 The body's reaction thus simply revealed the female mind's
true consent to male overtures.
Alternatively, the woman's body may have felt desire, but she still refused consciously to
consent. She resisted. Men, too, were overwhelmed by desire and encouraged to resist giving
in to their need completely if a woman protested sufficiently and resisted to the utmost. Men,
however, were not blamed for feeling these deep needs, or even, up to a point, for acting on
them. But women were so blamed. They were derisively labeled "prostitutes" rather than
"true women." Full responsibility assumes free will and choice. n113 If women were blamed
for their sexual bodily feelings, then they were assumed to have some measure of control
over them. The mind in fact ruled the body, contrary to Sanday's interpretation. n114 In any
event, the ideal of womanhood was one in which women's minds ruled their sexual bodies.
Women for whom this was not true were, therefore, not "true" women and were thus
unworthy of the law's protection. n115
There were true prostitutes, whose business thrived in the nineteenth century. n116 This
thriving business reflected "sporting-male sexuality," which exalted emotionally detached
sensual pleasure and sex as a game. This culture also fostered violent games such as
cockfighting. [*22] Consequently, the "sporting-male culture defended and promoted male
sexual aggressiveness and promiscuity." n117 The rationale for the culture, which permeated
much of America, was an escape from the official middle-class ideology that males should
struggle to resist their sexual urges. n118 Prostitution and pornography fed the sporting male
culture. At the culture's most extreme, "gangs of rampaging drunks moved from one saloon
or brothel to another," raping with impunity all women met along the way. Since middle and
working class rampaged together, such "sprees" or "rows" enhanced a sense of equality.
n119
c. The Twentieth Century
In the twentieth century, "female passionlessness was transformed into a biologically-based
sexual passivity" and "sporting-male culture was recast as sexual aggression governed by
man's evolutionary affinity with the animals." n120 Krafft-Ebbing, in Psychopathia Sexualis, a
book translated into English in the early part of this century, saw "'gratification of the sexual
instinct [as]...the primary motive in man as well as in beast.'" n121 The male sex instinct was
"'a volcano that burns down and lays waste all around it...an abyss that devours all - honor,
substance and health.'" n122 Males have a "'stronger sexual appetite'" and "'a mighty
impulse of nature [which] makes...[them] aggressive and impetuous in...courtship.'" n123
9
Normal women, on the other hand, said Krafft-Ebbing, had "little sensual desire," a necessity
to contain male aggression; without women's lessened need, "marriage and family would be
empty words." n124
In his Studies in the Psychology of Sex, Havelock Ellis varied Krafft-Ebbings's position by
conceding that women had sexual desire. For Ellis, female passivity and male aggression
were necessary to excite both partners. n125 One commentator summarized Ellis' views:
"The modest, coy female plays the role of hunted animal in a game in which the goal is to be
caught. The male exerts energy to capture the female or to lead her to a state where
surrender is her only desire." n126
[*23] Sigmund Freud's ideas on sexuality had an especially powerful impact on popular
sexual attitudes throughout the twentieth century. n127 Freud echoed many of Ellis' views.
"The sexuality of most male human beings," Freud said, "contains an element of
aggressiveness - a desire to subjugate; the biological significance of it seems to lie in the
need for overcoming the resistance of the sexual object by means other than the process of
wooing." n128 Male libido is stimulated primarily by female resistance or passivity. n129
While both men and women share a sexual instinct or drive, Freud clearly saw women as far
more responsible than men for controlling that drive. Thus, Freud posited that a rape might
come about when "the attack of the man cannot be warded off through the full muscular
strength of the woman because a portion of the unconscious feelings of the one attacked
meets it with ready acceptance." n130 The woman, suggested Freud, is the one responsible
for what happens because she could have chosen to resist. n131 Some early feminists
embraced Freud's ideas, although later feminists were more critical. n132 However, despite
the efforts of later twentieth-century feminists to alter consciousness on this point, and
despite the mid-century "sexual revolution," the image of uncontrollable, animalistic male
sexuality and an ideal of responsible female sexuality persisted. n133 Women were
responsible for their own sexual feelings and actions, but had the knowledge and control to
be responsible for inciting males' sexuality:
The assumption of the naturalness of male sexual aggression meant also that women brave
enough to venture into the public spaces of the sporting-male culture - dance halls, saloons,
city streets after dark - contributed to their own sexual abuse. They "asked for it" and showed
they "wanted it" by the way they looked, danced, dressed, or comported themselves in
general, if not by their presence alone. n134
In the late twentieth century, the idea of female responsibility for male sexuality, especially in
the context of dating, became even more [*24] firmly entrenched, as an investigation into
social science studies will reveal.
4. Social Science
The authors of a recent review summarized social science research on attitudes toward dating
and date rape using a model of courtship and dating. n135 Those authors define courtship as
activities undertaken with the intention of establishing a fairly permanent relationship. n136
Dating is sometimes temporary and recreational but is seen primarily as offering the
participants a chance to evaluate one another as potential long-term partners. n137 If an
initial date succeeds, further dates are part of a process of increasing sexual intimacy as the
relationship moves closer to a long-term connection. The degree of sexual intimacy that will
be achieved at each stage is rarely discussed. n138 Rather, the process is one of "advancing
and retreating as the relationship moves towards the development of a permanent
relationship." n139 Forced sexual intercourse happens when the process gets out of control.
n140 Nevertheless, "women control the degree of sexual intimacy at each stage in the
development of the relationship." n141 While men are expected to seek ever-increasing
degrees of sexual intimacy, women are expected to resist men's pressures until the
10
relationship matures. n142 Each woman has her own personal standard for when greater
intimacy, particularly sexual intercourse, is allowed. n143 These standards are often not overt
and, while they are individual, they can include such things as the woman deciding that this is
a man with whom she wants a personal relationship, that he will not abuse her in the future,
that her sense of commitment to him is reciprocated, and that others will not label her
negatively if she does not complete sexual intimacy. n144 Furthermore,
Men are expected to be aggressive if they are to be identified as masculine. Aggression by
men in the courtship process produces a situation in which men assertively attempt to move
the courtship process forward while women resist these efforts in favor of a more deliberate
and cautious development of the relationship. n145
[*25]
This model strikingly tracks the gendered model of the emotions articulated here. Men are
expected to push aggressively for increasingly intimate sexual contact, properly urged on by
their masculine needs. Their sexual needs are always present, and they would move to sexual
intercourse quickly if only women would let them.
In contrast, women's sexual desire is more rational. Women's desire grows as they come to
believe that the man's commitment is serious and mutual, or that the man is kind. Women's
desire is nurtured by a deepening emotional bond as the relationship matures over time.
Women also remain in control of themselves and their men. They resist the male's constant
pressures and choose when and how to go further. The male complies reluctantly and with
great difficulty. n146
There are three common scenarios in which the woman, from her perspective, loses control.
First, she may agree to a significant degree of intimate sexual activity. Furthermore, both
parties anticipate and are moving towards sexual intercourse. However, the woman is not
ready, and during the course of the consensual activity, the man forces the woman to have
non-consensual sexual intercourse. Psychological damage will be small and likely neither
party will consider the act rape. The couple may indeed choose to continue developing a
long-term relationship. n147
Second, the woman may consider sexual intercourse a possibility at some point but does not
yet view the relationship as permanent. Similar to the first scenario, the man forces the
woman to have intercourse during intimate consensual activity. One or both parties might
label this act rape. If the woman does so, she will end the relationship and suffer low to
moderate psychological harm. n148
The third scenario is similar to the first two, except that the woman's deeply-held values
prohibit sexual intercourse n149 before a firm permanent relationship is established. The
likelihood is high that the woman will define this incident as rape, but the man may or may
not [*26] do so. The woman will break off the relationship, usually suffering high
psychological damage. n150
These scenarios may come about because the woman's expectations of the man are unclear
and, given the expectation of male sexual aggression, males misinterpret women's ground
rules. n151 These events may also happen because the male takes advantage of the
opportunity, either using his greater strength or his knowledge that the woman may fear that
too much resistance at that point will permanently damage a relationship she wants to
preserve. n152 In any of the three scenarios, however, "the woman may accept responsibility
for the outcome, and the man might see this as an acceptable/anticipated outcome." n153
This model does not address the "predatory, blitz, or confidence rape." n154 In such rape,
the male engages in dating or courtship behavior to gain a position from which he can safely
force a woman into sexual intercourse. His only goal is sex and not the pursuit of a relatively
11
long-term relationship. He will try to gain consent, but if that fails, he will use force. Nor does
this model address situations where both parties see sexual intercourse as a recreational part
of casual dating, yet differ in regard to when, how, or where the sexual intercourse should
take place. n155 Both predatory and recreational rapists likely fit popular notions of "date" or
"acquaintance" rape. Yet the same gendered perceptions of emotions govern these two
situations as well.
Some studies indicate that victims are generally viewed as more responsible for the forced
sex in date rape than in rape by a stranger. n156 These perceptions can be gendered, as
some research suggests that men are more likely to believe that the woman on the date was
responsible or asked to be raped. n157 For both men and women, however, [*27] other
studies show a reduced willingness to label a sexual act rape as sexual intimacy increases.
n158 A woman who "leads on" her date, wears sexy clothing, permits the man to spend large
sums of money on her, goes to the man's apartment, or asks the man out are all factors
making it less likely that a dating incident will be labeled rape. n159
The victim is also more likely to be blamed for the forced sexual intercourse if she was
intoxicated, physically attractive, ambiguous about her willingness to engage in intercourse,
sexually experienced, felt sexual pleasure, placed herself in circumstances where the
intercourse was perceived as foreseeable, had prior social contact with the assailant, or faced
an offender using relatively little force. n160 The man's misinterpretation of these signals is
generally attributed to the woman. n161 Moreover, many people continue to adhere to rape
myths, such as the notion that women can prevent rape and that they provoke men and
want them to use force. n162 All of these factors paint a picture of women as being
responsible for their own sexual feelings and actions and for choosing to provoke
uncontrollable sexual feelings and actions in men. Current substantive rape law in turn
makes ample room for defense attorneys to paint these same cultural pictures in the
courtroom, as the next section explains.
5. How Legal Definitions of Rape Promote Gendered Emotions
The mechanistic versus evaluative view of emotions is analogous to the law's mind/body
distinction. The law generally constructs the body as an entity distinct from the mind.
Because of that distinction, "a potential political struggle opens up over who is to be the
master of the two." n163 Rarely, however, does criminal law discourse constitute the body as
a threat to, or as controlling, the person or mind. n164
One exception to this observation is Regina v. Charlson, n165 an English case in which the
defendant hit his ten-year-old son over the head and threw him out of a window. He was
permitted to raise the defense of involuntariness caused by a brain tumor. Professor Meir
Dan-Cohen sees the Charlson case as appropriately concluding that the human subject is not
responsible though his body is responsible. The tumor, says Dan-Cohen, is in no way a part
of the defendant's person, [*28] but is instead an intrusive external agent. n166 He cannot
therefore be held responsible for actions that he did not (but the tumor did) cause. n167
Dan-Cohen contrasts Charlson with a rapist who claims that he is not responsible because his
sex glands caused him to rape:
Although it takes some effort, we can imagine a self for whom the sexual drive is an intrusive
external force no different in kind from the pernicious emanations of a brain tumor. The effort
needed to imagine such a self, however, is evidence that our culture (by which I mean at
least contemporary Western culture) does not encourage the enactment of such a self. Hence
the relative ease with which [the rapist] would be held responsible: "I am not responsible for
my sexual drive" is simply not a viable argument in our culture. One of the ways in which this
culture helps constitute a self that inexorably integrates the sexual drive but not a brain
tumor is by ascribing responsibility for the former while withholding responsibility for the
latter. n168
12
Dan-Cohen misses the point that the law in action and the law on the books are related but
not the same thing. n169 He is correct in saying that the "my sex glands made me do it"
claim will be rejected by the courts as the legal basis for an involuntariness defense.
However, the law of rape makes a space for cultural conceptions of gendered emotions that
lead juries to accept something much like the sex glands defense despite the seemingly
contrary law on the books.
In American culture, the penis is much like the tumor in Charlson's case: an outside force
controlling the helpless male person. n170 As one commentator has noted, if the law were to
expressly construct bodies without minds that acted "without our leave," the "penis would
become that body part par excellence to which independent agency would be attributed."
n171 Culture, however, accomplishes covertly what the rules of law will not do overtly:
It is true that a rapist is not acquitted simply by attributing agency to a discursive
construction called a "sexual drive." As the work of feminist legal scholars has shown us,
however, I do not agree that rapists in contemporary American legal culture are convicted
with "relative [*29] ease" or that the argument "I am not responsible for my sexual drive"
has no resonance as a legal defense. The argument certainly seems implicated in all the
successful rape defenses of the general form: "I am not responsible for my sexual drive
because she was." n172
The law on the books makes room for these cultural constructs of the male "self" as
controlled by the penis by using "pourous, self-contradictory legal language" that provides "a
vocabulary to construct any sort of body required by male power." n173 Thus, the absence of
consent is effectively part of the legal definition of rape in nearly all jurisdictions, n174 but
consent is rarely defined. n175 One meaning jurors might give consent is a "meeting of the
minds," thus requiring the victim's agreement. But the line between acquiescence and
agreement is sometimes murky. All choices involve some coercion, psychological or
otherwise. n176 The question is how much is too much? That is, how much would render an
agreement not truly voluntary and just mere acquiescence, or not an agreement at all? n177
Jurors will answer this question, however, by applying their own values. n178 Gendered
conceptions of the emotions demonstrate that those values will tolerate a great deal of male
sexual aggression before a woman's relenting becomes seen as involuntary and thus not
consensual. n179
Subjective notions of consent may also reflect values in that there are varying mental states
graded according to moral culpability. n180 Ordinary people gauge their moral judgments
much like the Model Penal Code, by asking whether an action was done purposely, knowingly,
or recklessly. n181 Values affect which mental state is deemed the minimal one necessary for
imposing liability or guilt. A jury might consider a woman's willingness to engage in certain
behavior, despite her conscious awareness of the risk of forcible sexual intercourse
(recklessness), as a subjective agreement to intercourse and thus consent. n182 Of course,
jurors will not consciously debate whether purpose, knowledge, or recklessness will be the
test for consent. They will nevertheless subconsciously or implicitly make judgments guided
by values. n183 Because the law rarely defines consent, jurors' own normative notions of
consent thus become the law for the particular case.
[*30] Correspondingly, the law usually requires some level of awareness by the defendant
that the woman did not consent. n184 The gendered conceptions of the emotions so
permeate our culture that they will at least subconsciously affect juries' judgments of
responsibility. n185 Yet many theorists recognize that legal conceptions of mental states
contain a normative as well as an empirical component. n186 For a jury to find that a
13
defendant had the necessary mental state, the jury must conclude that the defendant, not
the woman, was primarily responsible for the sexual acts. Unfortunately, our culture often
views women as more responsible than men for inciting or favorably responding to male
sexual desire. Indeed, we assume that women know when their actions will ignite male
passion, which thus makes men justifiably entitled to perceive certain female behavior as
inviting sex. n187 Empirical studies bear this out. A wide variety of social science studies
show that women engaging in provocative behavior are far less likely to be seen as "raped."
Women, not men, are considered responsible for the unwanted acts of sexual intercourse.
n188 Furthermore, some of the women in these studies admit to saying "no" while hoping
men will continue the pursuit. n189 Such attitudes and behavior feed a societal willingness to
assume that the man merely misread the woman's signals. The woman, not the man, has the
responsibility for clear communication. n190
Alternatively, jurors might apply objective, rather than subjective, standards in judging the
absence of consent. An objective test for consent asks whether a reasonable woman under
these circumstances would be able to accept or reject a sexual overture, that is, did she
impliedly consent? n191 Such notions of reasonableness enter into our everyday notions of
consent. n192 A car buyer, for example, who gave in to a high pressure sales pitch only to
later realize that he forgot to ask for and had not gotten airbags would be stuck with the deal.
Absent any misrepresentations by the car dealer, we expect car buyers to be able to resist
smooth sales pitches and ask the right questions. We do not view the purchase as involuntary
simply because it is based on ignorance and the dealer's emotional manipulation. n193 The
buyer voluntarily [*31] consented to purchase the car. We must hold him to the agreements
that would bind reasonable people. Similarly, we expect women to resist the aggressive male
"sales pitch" because reasonable women are responsible for doing so. n194 Again, our
notions of gendered emotions feed the ideas of uncontrollable male aggression and controlled
female response.
Correspondingly, in some jurisdictions, the law may convict a rapist whose honest belief in
the woman's consent was unreasonable. n195 Arguments like those just made concerning
implied consent will come into play here as well. If a woman can control her own sexual
emotions and knows what will spark a man's uncontrollable desire, then any man may
reasonably interpret provocative female behavior as consent. n196
The requirements of consent and mental state ("mens rea") make the law in practice
incorporate dualistic gendered conceptions of the emotions. Thus, rape laws both reflect and
contribute to cultural conceptions of "proper" gendered behavior. Because cultural
conceptions hold women more responsible than men for sexual desire, rape trials tend to
focus on the woman's responsiblity more than the man's. Altering the definition of rape and
candidly recognizing these realities broadens the inquiry into one of the equal and mutual
responsibility of both parties for sexual interaction.
C. Why the Mechanistic View of Sexual Emotions Is Wrong
Section IIA explained why the mechanistic view of the emotions is generally viewed as both
philosophically and empirically wrong. Yet even those who might generally concede the
wisdom of the evaluative view might reject it for sexual desire. Such desire, they might
argue, is no emotion at all or is better explained by the mechanistic view. n197 Richard
Posner has stated the most influential version of this view in his book, Sex and Reason, n198
which opens thus: "There is sexual behavior, having to do mainly with the excitation of the
sexual organs." n199 To Posner, sexual desire is a biological urge alone, its satisfaction being
a commodity for which people will pay like any other. n200 The [*32] other person in a
sexual "exchange" is but an instrument of physical satisfaction "that could have been
provided equally by another person, by an animal, by a rubber doll or a piece of Kleenex."
n201
Posner's reduction of sex to a physical act is empirically wrong as well as morally
reprehensible. Yet his image is part of a well-respected tradition, perhaps rooted in modern
times in the theories of Sigmund Freud, who saw the aim of sexual desire as the "'union of
14
the genitals in the act of copulation, which leads to a release of the sexual tension and a
temporary extinction of the sexual instinct - a satisfaction analogous to the sating of
hunger.'" n202
[*33] But sexual pleasure is not entirely like eating. Sexual pleasure "is not just a tingling
sensation; it is a response to another person, and to the act in which one is engaged with
another. The other person may be imaginary: but it is towards a person that one's thoughts
are directed, and pleasure depends on thought." n203
A classic criminal law example that makes this point is of a woman who makes love to a man
posing in the dark as her husband. n204 Had she known of the fraud, she might not have felt
desire. Similarly, in the well-known movie The Crying Game, a man madly desires a beautiful
young woman, yet loses all desire when, in the course of making love, he discovers that she
was really a man. n205 Thought is thus an inseparable part of sexual arousal, and the type of
thought involved makes for a wide spectrum of arousal that may differ in kind and degree.
Moreover, these thoughts are usually of a particular person. Arousal may begin in generalized
thoughts, but generally later focuses on a particular other. Indeed, the sense of arousal
depends on focusing on that other to the exclusion of the rest of the world. This explains why
the expression of sexual desire usually requires privacy for the parties involved. n206 The
individualized nature of arousal is expressed in the Bible in the story of Jacob and Rachel.
Jacob's lust for Rachel cannot be satisfied by sex with any other woman, including his first
wife, Leah: "Jacob's desire for Rachel seemed to be satisfied by his night with Leah, only to
the extent that, and for as long as, Jacob imagined it was Rachel with whom he was lying."
n207
That sexual desire partly consists of individualized thoughts about a particular other does not
mean that those thoughts are necessarily kind ones. n208 To the contrary, a man's desire for
a woman, especially [*34] in the case of rape, may stem from wanting to dominate a
particular woman whom he feels compelled to "put in her place." Or he may desire a
particular woman because he believes she will be easy to dominate and this is what feeds his
desire. Indeed, much empirical data links sexual desire to aggression as the primary
motivating force for the individual rapist. Nicholas A. Groth, in his classic study, Men Who
Rape: The Psychology of the Offender, summarized the commonalities among the four broad
classes of rapist:
Regardless of the pattern of the assault, rape is a complex act that serves a number of
retaliatory and compensatory aims in the psychological functioning of the offender. It is an
effort to discharge his anger, contempt, and hostility toward women - to hurt, degrade, and
humiliate. It is an effort to counteract feelings of vulnerability and inadequacy in himself and
to assert his strength and power - to control and exploit. It is an effort to deny sexual
anxieties and doubts and reaffirms his identity, competency and manhood .... Sexuality is not
the only - nor the primary - motive underlying rape. It is, however, the means through which
conflicts surrounding issues of anger and power become discharged. n209
Male sexual desire, including that of the rapist, is both thought and feeling. The evaluative
view of emotions is partially thought that is subject to education. Thus, under our control is
an accurate empirical description of both male and female desire. Moreover, the evaluative
view, rendering men as responsible as women for holding back and acting upon their
emotions, is more normatively desirable.
[*35]
D. How Race Complicates the Picture
15
Race complicates the analysis in ways that on the surface seem to call into question the two
gendered concepts of the emotions. Notably, dominant cultural images of African-American
men are consistent with a hyper-mechanistic view of the emotions. Black men are often
viewed as little more than sex-obsessed beasts. The central stereotypical metaphor is of the
Black man as "a kind of walking phallic symbol" n210 in a "savage state of 'promiscuity."
n211 Frantz Fanon, writing in the 1950s of the White preoccupation with the Black male as
"beast and penis," n212 used a word association test to measure the fears of his White
psychiatric patients. Almost 60% of the patients associated the word "Negro" with "biology,
penis, strong, athletic, potent...savage, animal, evil, sin." n213 The sociological inquiries of
Roger Bastide echoed these conclusions, n214 and modern studies reveal continuing images
of Black males as lazy, violent, dangerous beasts. n215
These images have their roots in slavery and the corresponding White construction of Africa
as a sensual, bestial place of darkness and fear. n216 The images accounted for much
lynching in the South, n217 which played a role in the infamous Scottsboro rape case of the
1930s, n218 and have continued to dominate popular culture, appearing [*36] in movies,
novels, and the news media. n219 Even White sympathizers of Black causes have written
romantically of the Black man who "subsisted for the Saturday Night Kicks, relinquishing the
pleasures of the mind for the more obligatory pleasures of the body, and in his music ...
[giving] voice to ... the infinite varieties of joy, lust, languor, growl, cramp, pinch, scream
and [the] despair of his orgasm." n220 Rose Finkenstaedt concisely summed up the theme
revealed by the totality of these images:
The stereotype of the black brute has engendered fantasies not only of the overendowed
properties of the Negro male and female but also of their gross performances. It was - and
still is - commonly believed that the black had "larger ... sexual organs," as a psychologist
recorded; the black was looked on as "an inexhaustible sex-machine with oversized genitals
and a vast store of experience. "Their wild, unrestrained passion," their "always controlling
force," was presumably for the white woman. As Ishmael Reed observes, "Everybody knew
that all black men did was rape white women"; or, as Langston Hughes poeticized, "... a tall
white woman/ In an ermine cape/ Looked at the black and/ Thought of rape." n221
This image of Black male sexuality as an uncontrollable physical force appears to reflect the
mechanistic view of male sexual emotions at its most extreme. Yet Black men are arguably
sometimes held more responsible for their sexual behavior, precisely the opposite of what the
gendered model of the emotions predicts. The apparent puzzle is solved by examining when
Black males are held more responsible for their sexual behavior. Empirical data and cultural
themes about Black male sexuality suggest that at least some criminal justice system actors
[*37] hold Black males more responsible for rape when the victims are White but less
responsible when the victims are Black.
I must stress, however, that the empirical data on the impact of race on the justice system's
processing of rape cases is limited. n222 The leading study remains one done by Gary LaFree
in 1989, using data from the early 1970s. n223 LaFree's study continues to be cited by
scholars, even in the prestigious recent work on violence against women by the National
Research Council. n224 LaFree concluded, however, that:
Compared to other defendants, blacks who were suspected of assaulting white women
received more serious charges, were more likely to have their cases filed as felonies, were
more likely to receive prison sentences if convicted, were more likely to be incarcerated in the
state penitentiary (as opposed to a jail or minimum-security facility), and received longer
sentences on the average. n225
16
On the other hand, LaFree noted that "black offenders charged with raping black women
[were treated] less harshly." n226 While the evidence of discrimination was not overwhelming
for any single processing outcome (for example, the severity of the charge brought), "the
cumulative effect of race ... was nonetheless considerable." n227
LaFree's quantitative data also showed that "race composition did not have a significant effect
on arrest and verdict." n228 LaFree suggested, however, that the data could not distinguish
legal from extralegal factors, nor did the data account for all variables relevant to the role of
race at rape trials. n229 Thus, LaFree's intensive qualitative study of an individual rape trial
suggested that lawyers adjust their strategy to reduce the effect of race in a Black offenderWhite victim dyad. n230 For example, a defense lawyer might raise misidentification rather
than consent as a defense because the effect of race is likely to be strongest in a consent
defense case. n231 Given these problems and the [*38] long history of overt racial
discrimination in rape cases, LaFree cautioned against concluding that race has little
independent impact on verdicts. n232 Moreover, LaFree's results on the relationship between
race and rape came from a statistical analysis of forcible rape cases processed in Indiana.
n233 Because each case is in some sense unique, statistical analysis alone is of limited value
in determining jurors' reasoning processes. LaFree also intensively studied all Indianapolis
rape trials over a two year period, including observation of the trials, 90 minute post-trial
interviews with most of the jurors, and post-trial juror questionnaires. n234 The latter data
revealed that the "victim's race was also an important predictor of jurors' case evaluations.
Jurors were less likely to believe in a defendant's guilt when the victim was black." n235
Moreover, LaFree concluded:
Our interviews with jurors suggested that part of the explanation for this effect was that
jurors - many of whom were middle-class whites - were influenced by stereotypes of black
women as more likely to consent to sex or as more sexually experienced and hence less
harmed by the assault. In a case involving the rape of a young black girl, one juror argued
for acquittal on the grounds that a girl her age from "that kind of neighborhood" probably
wasn't a virgin anyway. Other jurors were simply less willing to believe the testimony of black
complainants. One white juror told us: "Negroes have a way of not telling the truth. They've a
knack for coloring the story. So you know you can't believe everything they say." n236
There are several ways to interpret LaFree's data. First, it might be argued that there is too
little data on the impact of race on rape trials to draw any conclusions from that data alone.
The cultural and historical images of Black men are, however, consistent with the mechanistic
view of male sexual emotions. Thus, we might decide that race probably does not alter the
conclusion that jurors judge males based on a mechanistic view of the emotions.
Second, LaFree's data may be the best that is available, but it should be read conservatively.
This interpretation at least supports the conclusion that police, prosecutors, and judges do
treat Black men more harshly than White men. However, given LaFree's statistical data
concerning all Indianapolis rape case outcomes that he studied, we might be reluctant to
reach any conclusions regarding the impact of race on jury verdicts while we await further
study.
[*39] Third, we might read LaFree's data more liberally. Based upon LaFree's qualitative
jury reasoning-to-verdict research, we might conclude that Black male rape defendants are
treated more harshly when their alleged victims are White, less harshly when those alleged
victims are Black. This liberal reading of the social science data on attitudes toward rape and
race is strongly supported by historical data, by modern cultural conceptions of race generally
and of race and sexuality's intersection specifically, and by social science data outside of
sexuality showing continued White willingness to believe in Black inferiority and
17
dangerousness in a wide array of areas. n237
It is the last two options, especially the third, that I find most interesting. Option one leaves
the gendered model of the emotions, as initially articulated here, untouched. But options two
and three either challenge the model or require us to modify it. Under these latter two
options, Black males are still viewed as governed by biological urges. Yet at least some
criminal justice system actors hold Black males significantly responsible in some cases,
namely, where the victim is White, which is contrary to the model's conclusion of mitigated
male responsibility for sexual desire. That Black males are held more responsible when their
victims are White, less responsible when their victims are Black, suggests, however, that it is
race, not sex, that explains this disparity. n238
My hypothesis is this: Black males, like White males, are still governed by mechanistic
conceptions of their sexual emotions. Black males' emotions about race are judged by
evaluative standards. Therefore, when a Black male assaults a White woman, he is seen as
reacting to her skin color as a symbol of power and oppression. The cultural meaning of skin
color is a learned conception, a cognitive evaluation resulting from education and
socialization. n239 Accordingly, Whites view a Black male assault on a White woman more as
a challenge [*40] to White domination than to female sexual autonomy. In short, Whites
view the Black male's act as literally "fucking" the opposition. n240
Indeed, in the 1960s, Eldridge Cleaver expressly called for the raping of White women as a
political act. n241 According to Cleaver:
Rape was an insurrectionary act. It delighted me that I was defying and trampling upon the
white man's law, upon his system of values, and that I was defiling his women - and this
point, I believe, was the most satisfying to me because I was very resentful over the
historical fact of how the white man has used the black woman. I felt I was getting revenge.
n242
Cleaver's description of both his actions and motivations as a Black man is atypical, partly
because few rapes by Black men are of White women. Most rapes are indeed intra-racial.
n243 Cleaver's attitude articulated White fears well: that Black-on-White rape was and is a
political act, a protest against, and undermining of, White male power. The historical and
continued existence of this White fear has been too well-documented to deny. Several
histories of the slaveholding South have examined the sources of this fear: "Aware of his
wholesale transgression against the Black female slave, which he refused to conceptualize as
criminal rape, the slaveholder was eternally vigilant against a reverse of the syndrome."
n244 This fear constituted, during Reconstruction, a pervasive Southern "rape complex." This
rape complex tied Black desire for White women directly to Black autonomy from White
power. Historian W. J. Cash put it this way:
What the Southerners felt was that any assertion of any kind on the part of the Negro
constituted in a perfectly real manner an attack on the Southern woman. What they saw,
more or less consciously, in the conditions of Reconstruction was a passage toward a
condition for her as degrading, in their view, as rape itself. n245
[*41]
This White fear of Black "uppitiness" continued throughout Jim Crow and the era of lynching.
n246 The link to sexuality was expressed in laws and practices treating Black-on-White rape
more severely than other sorts of rape. n247 In modern times, while these fears have gone
underground, they still remain. In particular, the American culture is imbued with messages
18
of appropriately deferential behavior by Blacks towards Whites; of a belief in some continued
separation between the races; and of a sense of Black status inferiority. n248 The differential
treatment of Black males in rape cases suggests a continuing link of these fears to Black
male sexuality.
Accordingly, Black males are judged as responsible for their emotions of desire for having or
challenging White power and status. But Black male sexuality in itself is still seen as bestial
and indeed hyper-mechanistic. With Black-on-White rape, racialized desires for power merge
with sexual desire, and it is the race-based aspect of those emotions that accounts for Black
male responsibility for raping White women.
That Black male sexuality is still judged under the mechanistic view is further demonstrated
by the fact that neither Black nor White males are generally held responsible for raping Black
women. n249 One [*42] plausible explanation for this observation is that both Black men
and Black women are judged under the mechanistic view, so neither is fully responsible for
his or her sexual feelings and actions.
There is some support for the mechanistic view of Black female sexual desire in our cultural
imagery. While the "Mammy" may also once have been a central image of the Black woman
in the past, today that image has generally given way to the "welfare queen," the oversexed,
lazy, Black woman. n250 The image changes in film to the overt prostitute, street walker, or
druggie selling her wares for a fix. "The image of the Black mother and whore thus merge in
the white mind into one. And the Black virgin is nonexistent, an oxymoron, in white
mythology." n251
The image, of course, draws on earlier historic images from the antebellum plantation of
White boys using Black women like blow-up dolls, to post-Reconstruction rape of every
handy Black female, a story of abuse justified in the White mind in part by the woman's
perceived bestial needs. n252 The unitary image of Black womanhood further grows from
Whites' general view of Blacks as "animals, outside of the providence of God." n253
Nell Irvin Painter has summarized this lengthy historical imagery powerfully and concisely:
Overdetermined by class and race, the black-woman-as-whore appears nearly as often as
black women are to be found in representations of American culture. Mary Chestnut, in her
Civil War diary, pities the virtuous plantation mistress surrounded by black prostitutes
anxious to seduce white men and boys. The stereotype that averred that there were no
virginal black women over the age of fourteen was prevalent enough in the 1890s to mobilize
black club-women nationally against it. The figure of the oversexed-black-Jezebel has had
amazing longevity. She is to be found in movies in the 1980s and 1990s - She's Gotta Have
it, Jungle Fever, City of Hope - in which black female characters are still likely to be shown
unclothed, in bed, and in the midst of coitus. n254
The logical conclusion of this unitary image in the White mind is "that no Negro woman can
be raped because they are always willing." n255 [*43] And the counterpart, noted Chester
Himes, to the ever-sexually-ready Black temptess was her unworthiness, for the White male
"turned to Negro women because in them they saw only the Black image of flesh, ...
possessing no mind to condemn, no soul to be outraged, ... no power to judge or accuse."
n256
If Himes is right that Whites view Black women as mindless flesh, then the mechanistic view
fits the Black woman well. But the dominant image of the Black woman is as a whore. n257 A
whore's sexual desire has a large cognitive component. Whores offer sex for money, gifts, or
protection, quickly losing their ardor for those too poor or unwilling to offer an exchange. The
whore is seen above all else as a businesswoman, capable of driving a hard bargain. This
19
rational assessment of the worth of sexual activity fits the evaluative view. Under either view
of the evidence, however, the Black woman loses. If both she and her partner are judged
mechanistically, neither is responsible for the rape. If she is judged evaluatively but the man
is judged mechanistically, then the man is still not responsible for rape. Black women
become trapped in a modern Catch 22.
A revised definition of rape must, therefore, be one that treats both Black men and women
as rational agents. In this way, all persons are treated as responsible for their feelings and
actions, regardless of race or gender. A definition of date rape like Pineau's - which relies on
"communicative sexuality" and judges all persons, both the alleged rapist and his victim, by
the evaluative view - is likely to promote racial as well as gender justice. This is particularly
clear when we recognize that the evaluative view permits us to condemn certain sexual
attitudes and actions as inappropriate, indeed as "evil," while rejecting the idea that it is
acceptable to evaluate the wisdom of someone's beliefs and conduct based on his or her race.
E. Taking Stock
This Section has laid the groundwork for challenging charges that Pineau's proposal is
utopian. It has been argued that, while present rape law embodies a dualistic gendered
conception of the emotions, the evaluative view is more empirically accurate and normatively
desirable for both sexes. The evaluative view is fundamentally optimistic, for it assumes that
men and women can change their characters and that law has a role to play in promoting
good character or virtue. Yet the evaluative view does not reject the radical insight that
patriarchy is a social system, not merely the work of individual men with sexist attitudes.
n258
[*44] The evaluative view is more consistent with the structuration theory of sociologist
Anthony Giddens. Structuration theory holds that the skilled performances of interacting
individuals instantiate social systems. n259 For example, every time that men and women act
in liberating fashion, they chip away at patriarchy. Individuals can thus to some extent
escape the constraints of their social systems and, by so doing, change them.
Under such a view, genuine heterosexual exchange of pleasure, affection, and romantic love
are possible, even under patriarchy. Consent can thus sometimes be real rather than merely
apparent or feigned. n260 Furthermore, law, by its symbolic, expressive function, can help
individuals to change. n261 Indeed, to the extent that the law-in-action changes how men
and women interact, law too can chip away at patriarchy.
The liberal critique of Pineau - that some women will like non-communicative sex - never
made much sense. As Pineau herself has pointed out, her approach does not bar such sex, so
long as at some time there was clear communication by the parties of this desire and of the
ground rules. n262 Some liberals find even this requirement a stultifying intrusion on
individual autonomy. n263 To those liberals, I offer two responses. First, even such leading
liberal thinkers such as John Stuart Mill, albeit in slightly different language, have recognized
that autonomy is itself compromised by "false consciousness." n264 There is significant
psychological theory and data to support the claim that women who crave truly noncommunicative sex do not know what is in their best interests. n265
Second, the evaluative view of the emotions rejects the most extreme versions of liberal
theory. Under the evaluative view, society judges people's actions that reveal unworthy
thoughts and feelings, demonstrating an "unvirtuous character." n266 So society does
reserve to itself the authority to condemn certain desires as unacceptable. Autonomy, even
where the claim is made that no one but the chooser is injured, is limited. n267 Elaborating
on when the criminal law may be concerned with good character, and the implications for
mens rea in rape cases, is necessary. Thus, further defending the evaluative view of
emotions on normative grounds is the task to which I now turn.
[*45]
20
III. Evil Character and the Date Rapist
Our predisposition to feel and act upon our emotions, including sexual desire, is a central
aspect of our characters. The evaluative conception, by holding us responsible for how we
feel, therefore adopts a character-based, rather than the dominant action-based, morality. An
action-based morality holds us responsible for the harm that our actions cause. A characterbased morality instead holds us responsible for the harm that our evil character causes.
Part III examines the nature and role of character-based morality in understanding date
rape, first explaining why strict and negligence liability are acceptable grounds for criminal
punishment, next explaining why even negligent, non-communicative date rapists are "evil."
A. The Action Morality View of Strict and Negligence Liability
Under Pineau's proposed re-definition of date rape, a man can be guilty of that crime if he
neither knew, nor should have known, of the woman's non-consent. In this sense, her
proposal makes date rape a strict liability crime. n268 However, her proposal also imposes
liability only if the man failed to make reasonable communicative efforts to determine the
woman's desires. Such efforts are required because without them there is a substantial and
unjustifiable risk of the woman's non-consent. In this sense, Pineau seeks to render date
rape a crime of negligence. n269
Most modern scholars would bristle at either approach to understanding date rape. To
retributivists, strict liability is inconsistent with the principle that one who does not choose
harm is not morally blameworthy. n270 To utilitarians, strict liability is, at best, wise for
difficult-to-track, minor offenses with small penalties, such as traffic violations. For such
violations, strict liability may be more efficient than other options in deterring hard-to-detect
dangerous activities. n271 But many utilitarians are troubled at extending strict liability to
major offenses, for individuals cannot change behavior they do not know to be unreasonable.
n272 Furthermore, most utilitarians accept that retributive concerns must check utilitarian
goals. Accordingly, society should [*46] not punish someone who does not deserve it simply
because that will deter future wrongdoers. n273
Both retributivists and utilitarians often similarly condemn negligence liability. Many
utilitarians argue, as with strict liability, that an individual cannot be deterred when he has
failed to perceive the risks of his conduct. n274 Other utilitarians disagree, however, on
grounds of general deterrence, that is, that "public policy sacrifices the individual to the
general good." n275 Punishing the offender who could not help himself will at least encourage
others not to act in the same fashion. n276 But utilitarians who accept retributive constraints
would reject the argument that the good of the many should be favored over the good of the
one. n277 Retributivists generally dislike negligence liability because, while it involves chosen
action, the risk created is inadvertent. Although that is an inadequate basis for criminal
punishment, the deterrent effects of civil liability may be perfectly appropriate. n278
Pineau's proposal is substantively best understood as creating a special kind of negligence
liability regime for date rape. Professor Kenneth W. Simons has explained the importance of
distinguishing between "formal" and "substantive" strict liability. n279 For example, a
statutory rape statute defining that crime as sexual intercourse by an adult male with a
female under age ten is formally a strict liability crime as to the attendant circumstance of the
victim's age. Substantively, however, he is "at fault for engaging in conduct that creates a
[substantial] risk of violating the criminal norm." n280 Thus, considered in isolation from
other aspects of the crime of statutory rape, an offender might reasonably believe that a girl
is eleven, not nine, years of age. n281 However,
the more holistic substantive approach asks whether the actor is justified even in creating a
risk that the prohibited circumstance might exist, in light of the wrong inherent in the rest of
his conduct. It thus properly emphasizes that the actor's wrong consists not simply [*47] in
21
his mistake as to her age, but in his choosing to engage in intercourse notwithstanding the
risks of making such a mistake. n282
Similarly, Pineau's proposal formally imposes strict liability as to the attendant circumstance
of the woman's consent. However, a new conduct requirement is imposed: the man must
make communicative efforts to determine the woman's desires. Those efforts must be
adequate ones, not half-hearted attempts. The duty to communicate is imposed because a
man who engages in the act of sexual intercourse without communication creates a
substantial risk that he will be mistaken about the woman's consent. Pineau's proposal, as I
read it, is clearer than the statutory rape example because the man is expressly required to
make "reasonable" communicative efforts.
The critics of negligence liability rely on "action morality": freely chosen actions determine
moral blame. n283 Furthermore, they criticize Pineau's theory because she judges
"reasonableness" from the woman's point of view, violating the principle that "men are not
[to be] convicted of felonies they could not reasonably have known they were [*48]
committing." n284 Character morality, unlike action morality, embraces negligence liability
where, as with date rape, the offender's conduct reveals an insensitive or even cruel
character. n285 This circumvents the problem of judging reasonableness from a woman's
point of view by defining "reasonableness" as what a sensitive person would do. A cogent
understanding of character morality reveals that we can and should seek to punish and deter
insensitive personalities. Furthermore, sensitivity is a concept that we can give clear
conceptual content in a way of use to both judges and juries. n286
B. The Character Morality Alternative
All character moralities hold that we should be punished for causing certain harms that stem
from who we are rather than merely for what we do. Specifically, character moralities seek to
condemn and deter evil character. n287 "Character" is an enduring disposition to behave in
particular ways in particular situations. A disposition consists of both thoughts and acts. n288
Thoughts alone do not show an evil character. Many of us think evil thoughts, yet would not
act on them, even if freed from criminal punishment. n289 Acts alone are also poor evidence
of evil character. n290 For example, a driver might hit a child - an evil harm - through no
fault of the driver (the child darted in front of the car before the driver could stop).
Alternatively, one person might shoot another dead (again, an evil result) because the killer
reasonably (but mistakenly) feared for his life. n291
[*49] Character morality has both utilitarian and retributive justifications. n292
Retributivists conclude that an alleged criminal should be punished only to the degree that he
freely chooses to do harm because of his character. n293 If the suspect is a kind person and
did wrong accidentally, he does not merit punishment. There are, however, degrees of evil.
The amount and probability of the harm a person risks is a measure of the extent of his evil
nature. n294 One kind of evil character is a person who does not care sufficiently about
others in the pursuit of his own goals. n295 One negligently willing to risk a 5% chance of a
single death is less uncaring, thus less evil, than one willing to risk a 100% chance of death
(the intentional killer). n296
Utilitarians punish evil characters because they are most likely to cause harm in the future.
n297 Indeed, those with good motivations do not need to be deterred from evil. It is more
efficient and effective to identify evil characters, as they are most in need of additional
incentives for proper behavior. n298
Some character moralities distinguish between true and false characters. n299 These
theorists argue that we judge people good or evil based on how they behave under normal,
not abnormal, circumstances. n300 Furthermore, a pattern of behavior, rather than aberrant
conduct, is the best indicator of "true" character. n301 Again, this can be a question of
22
degree. n302 Thus we might have compassion for an otherwise kind man who, upon finding
his wife in bed with another man, [*50] kills the lover in a jealous rage. Our compassion
stems partly from the belief that the husband acted out of character. On the other hand,
another man might have had the strength of character to avoid killing even under these
abnormal conditions. We judge the man who kills as weak under the circumstances, but he is
not habitually evil. His true character is more noble than the one that appeared under
unusual stress. We thus mitigate his punishment from murder to manslaughter. n303 In
similar fashion, we can explain all criminal law doctrines as reflecting our judgments about
the degree to which we brand another man evil. n304
Societal and individual emotional reactions to criminals embody similar judgments regarding
the connection between an offender's evil character and his wrongful acts. We often recoil not
just from the wrongfulness of a person's actions or the degree of harm he causes, but from
him. n305 We view the criminal as unclean, garbage that should be ejected from the body
politic. n306
Our willingness to blame others, however, is often said to turn on our ability to choose. We
should not be blamed for our actions where we could not act otherwise. n307 Yet our
characters are fully formed at the time of our criminal acts. Our acts are caused by our
character's response to circumstances. Because we cannot control our characters, therefore,
we also cannot control our actions. Accordingly, we seemingly should not be responsible for
what we do. n308
To the contrary, character determinism is essential to moral responsibility. Hume put it this
way:
Actions are, by their very nature, temporary and perishing; and where they proceed not from
some cause in the character and disposition of the person who performed them, they can
neither redound to his honour, if good; nor infamy, if evil. The actions themselves may be
blameable; they may be contrary to all the rules of morality and religion. But the person is
not answerable for them; and as they proceeded from nothing in him that is durable and
constant, and leave nothing of that nature behind them, it is impossible he can, upon their
account, become the object of punishment or vengeance. n309
[*51]
Thus actions that do not issue from our characters are not "ours" but are random events from
forces outside ourselves for which we cannot be held responsible.
This analysis does not mean that all choice is irrelevant to most character moralities. Most
character moralities assume that we do at some point have control over who we are. n310
Our character traits might not initially be in our control. For example, we might be raised in a
home where we were taught that some races are inferior. Consequently, we never conceived
of an alternative, egalitarian worldview.
At some point, however, we condone, endorse, or accept our racism. n311 Most adult racists
in our society have faced critiques of their views in school, at church, on the Internet, and in
the media. If a person nevertheless joins the Ku Klux Klan, he is responsible for worsening his
evil nature. n312 He could have invited persons of other races to his home for lunch, read
and carefully considered egalitarian arguments in the media, or participated in community
dialogues on racism. n313 Even if he is completely unaware of anti-racist arguments something hard to believe - he is responsible for refusing to change his attitudes or at least
acting in ways that make change more likely. n314 This notion that we have control over the
formation of our character - our virtues and vices - is ancient. Thus Aristotle said:
23
It does not follow that he can [today] stop being unjust, and be just if he wants to - no more
than a sick man can become healthy, even though (it may be) his sickness is voluntary, being
the result of incontinent living and disobeying the doctors. There was a time when it was
open to him not to be ill; but when he had once thrown away his chance, it was gone; just as
when one has let go of a stone, it is too late to get it back - but the agent was responsible for
throwing it, because the origin of the action was in himself. So too it was at first open to the
unjust and licentious persons not to become such and therefore they are voluntarily what
they are; but now that they have become what they are, it is no longer open to them not to
be such. n315
Even if Aristotle is wrong, however, and we indeed have no control over how our characters
are formed, some utilitarian character moralists would nevertheless hold us responsible for
the harm that we do. John Kekes is the leading exponent of this view. Kekes argues [*52]
that the primary goal of assigning moral blame is to minimize evil. n316 Those with evil
dispositions require punishment to deter them and others from repeating the crime. n317
Those without evil dispositions are in no need of deterring. We should, therefore, punish evil
acts stemming from evil character, whether chosen or not. n318
If we accept Kekes' formulation, we must revise our two concepts of the emotions in criminal
law. Our emotions are important aspects of our character. Our disposition to feel and act on
emotions reflects our disposition to do good and evil, our character. n319 The original
evaluative view holds that emotions are partly cognitive states, thus subject to our control
and therefore our condemnation when evil. By contrast, the mechanistic view absolves us of
full moral blame on the theory that we cannot control how we feel. n320
However, if Kekes is right that we cannot control our characters (which include our
emotions), we can reformulate the evaluative versus mechanistic debate in new terms. The
mechanistic view can be seen as accepting Kekes' premise - that we lack control over our
emotions - while rejecting his conclusion - that we are nevertheless responsible for our
actions. To the mechanistic philosopher, choice is central to blame, so Kekes' position is
incoherent. The revised evaluative philosopher disagrees and finds logic in placing blame
even on those who cannot now control who they are. To the revised evaluative philosopher,
the mechanistics err in blindly focusing on the present and the past rather than the future.
Because our emotions are partly cognitive states, they should be subject to future
improvement based upon suffering, education, and reflection. Punishment can help us to be
better tomorrow. By wrongly viewing emotions as external forces beyond our control, the
mechanistics fail to see that present blame promotes future virtue. Under all versions of
character-based morality other than the mechanistic view, therefore, it is just to hold us
responsible for harms stemming from our evil characters. The central question becomes:
what is evil?
C. The Date Rapist as Evil
Evil is undeserved harm, such as when a bolt of lightning sets a house ablaze. n321 Moral evil
is undeserved harm done by one person against another, such as a fleeing felon's running
down a child. n322 Evil comes in different forms and degrees and, in a complex world, actions
and persons are often likely to embody aspects of both good and evil. The more that a
person's vices outweigh his virtues, the [*53] more we may say that he has a truly evil
character. n323 More often, however, we face evil done by the non-monstrous, the everyday
person who has the potential for both righteous and heinous behavior. n324
There are two broad ways to categorize evil: (1) instrumental evil, defined as selfishness or
egoism in which we cause pain to another not for its own sake but to attain some prized goal,
and (2) pure evil, defined as deriving pleasure from another's pain or pain from another's
pleasure. n325
Both forms of evil may be involved in date rape, even where the defendant honestly does not
24
"know" of the woman's non-consent. A date rapist who cares only about obtaining sex, and
who may even convince himself that "she wanted it" may be instrumentally evil to a great
degree. n326
1. Instrumental Evil
Instrumental evil by date rapists may be quite common. Professor Katharine Baker has
recently reviewed empirical literature showing that one reason for date rape is that, "many
young men are eager to have sex because they want to think of themselves and to have
others think of them as someone worthy of esteem." n327 "'Scoring' is seen as an individual
accomplishment for which one earns prestige." n328 Professor Baker argues that the goal of
such men is to maximize the quantity of sexual encounters in their lives; they are indifferent
to whether those encounters are consensual or not because more encounters means more
prestige and the means by which they get sex is irrelevant. n329
This sex-maximization goal does not necessarily mean that these date rapists seek to harm
their victims. Indeed, many date rapists assume that nice girls do not have premarital sex or
put themselves in positions where they may be compromised. n330 This assumption means
that, by implication, the women on whom the rapist preys are not nice [*54] and thus must
really want it. n331 Often, the men are quite unaware of the woman's non-consent. Of
course, they may be aware of a risk of her non-consent and recklessly ignore that risk. n332
It is entirely plausible that many date rapists are so focused on their goal of having sex that
they are not consciously aware of a risk that they will rape. Moreover, many men have very
different conceptions than many women of what constitutes consent. n333 The offenders may
be unaware of the risk that they will do wrong.
Pineau's proposal imposes criminal liability on the male for creating this risk if he did so
unreasonably. n334 A standard criticism of such negligence liability in criminal law is that it
breaks the normal link between personal conduct and criminality, namely, mens rea. n335
These critics argue that only awareness of our wrongdoing creates a full sense of our personal
guilt for the crime. Negligence is not a mental state. Rather, it is the absence of a mental
state or the mere failure to notice or think about something. n336 Furthermore, there are an
unlimited number of such failures to notice, so what makes one such failure any more
culpable than another? n337
However, negligence is not the mere absence of a desired mental state. Criminal negligence
embodies or reflects attitudes of carelessness, thoughtlessness, and insensitivity. Such
attitudes are often responsible for a person's failure to act reasonably. These are conattitudes toward certain things, not the mere absence of pro-attitudes. n338 These conattitudes are negative character traits subject to moral censure. Condemning someone who
acts based upon these traits appropriately strengthens the defendant's sense of moral
urgency. n339 We cause much evil by our inaction as well as our action, so we should be
encouraged to be aware of the morally relevant demands on our cognitive and emotive
energies. n340
An insensitive person both lacks awareness of the effects his actions have on others and does
not care about these effects. n341 The sensitive person, by contrast, displays four traits: (1)
perspectiveness, a vigilant awareness about ascertaining whether anyone will be adversely
affected by his conduct; (2) caring about, and often acting to advance, the well-being of
others, while trying to avoid conduct harmful or offensive to them; (3) critical appreciation,
the ability to distinguish [*55] what is morally relevant about the situation to those who are
affected by his behavior; and (4) strong motivation to act to minimize harms that might
result from his conduct. n342 The sensitive person need not always put others' needs above
his own, but he is aware of their needs and is motivated to value them and try to
accommodate them with his own. n343 A person is insensitive to the degree that he lacks
one or more of these traits. n344 Insensitive people are more likely to cause evil, while
sensitive people are more likely to avert evil. n345
Our culture pretends to value, as a morally relevant goal, avoiding non-consensual sexual
25
intercourse. n346 Concerns about autonomy, sexuality as at the core of our sense of self,
respect for the equal worth of all persons, and rape fear's role in maintaining patriarchy add
to this goal's moral salience. n347 A person who engages in instrumental sexual intercourse
without taking reasonable care to determine whether his partner has consented demonstrates
a core insensitivity to others' sexual choices. n348 By engaging in sexual activity, he creates
a risk of non-consent. n349 When his only concern is his own self-esteem, he shows himself
coldly indifferent to the woman's well-being in a morally significant way, and he merits
punishment. n350
2. Pure Evil
Date rapists can be viewed as engaging not merely in instrumental evil, but in the more
culpable pure evil. Remember that pure evil means deriving pleasure from another's pain.
Pure evil, or something approaching it, does not require monstrous conduct. Indeed, there is
an element of pure evil in ordinary competition. In competitive activities, another's pain
becomes the occasion for our pleasure, for only by [*56] their loss do we gain. n351 This
danger is particularly acute in sports, "[a] culture dominated by sports is going to be one in
which this danger is routinely courted. At the least, countervailing forces need to be instituted
if the wrong psychology is not to be reinforced (hence the traditional insistence on the virtues
of 'good sportsmanship')." n352 The ritual of shaking the loser's hand after a game is a way
of saying, "I am glad that you did well, but I am not glad that you are unhappy, and I do not
think less of you." The rituals of sportsmanship help to cabin the attitudes akin to pure evil
that are unleashed by unbridled competition. n353
Men involved in date rape often view sex as a sport or a competition. They are competing
with other men for prestige points. Those who lose (i.e. those who have little sex) are derided
as wimps and losers; in a sense, those who have more sex "win," and they derive pleasure
from the belief that men having less sex are pained by that fact. n354 The date rapist also
competes with his date. He seeks the "prize" of sexual intercourse and assumes that she will
resist his entreaties. n355 She "wins" if no intercourse takes place, he wins if it does. The
game is zero-sum: someone wins and someone loses. n356 As in any game, however, there
are rules. n357 For example, a date rapist may see it as a violation of the rules to use
bruising force. n358 Rather, he may ply a woman with alcohol to reduce her resistance. n359
He believes that she knows precisely why he is offering her liquor. If she drinks, she takes the
chance that she will be unable to protest much. She assumes the risk of losing the game.
n360 This assumption of risk is a kind of agreement which to the date rapist translates as
consent to intercourse. n361 However, the date rapist is not bound by rules of
sportsmanship. The game does not obligate him to express regret at his victim's loss or to
seek to restore her self-esteem. To the contrary, [*57] part of the post-game ritual is to
debrief his friends, painting the woman as loose and easy, and of little status. n362
A date rapist might also gain a kind of sadistic pleasure from convincing himself that his act
was seduction, not rape. His wilful ignorance increases his pleasure. For the sadist, pain is
more than a special and total kind of domination. Severe pain can cause the sufferer to prefer
death to life. n363 Even when this is not so, the pain lessens life's value. The sadist therefore
succeeds in inverting his victim's deepest values. This is a profound and heady power. n364
In this respect, physical cruelty and seduction have an affinity. While neither is a special case
of the other, they show the same pattern:
In seduction, especially of the innocent or reluctant, the object is made to abandon [her]
normal values and desires by being swept up in bodily ecstasy. Sexual sensations cause a
disruption of the standing order of value assignments. And the pleasure of seduction is
commonly held to be enhanced by this, precisely because it involves a fundamental
transformation of the object's value structure .... The value of innocence or abstinence or
fidelity is usurped by the seducer as he creates a bodily and mental state that pushes such
scruples aside. n365
26
This is not to say that seduction approaches the evil of physical sadism, but only to say that
both share a kind of psychological pleasure that comes from the sense of harming another. In
the case of seduction, the harm is to the other's moral values, autonomy, and rationality,
rather than to the value of the victim's life. The pleasure in another's debasement is a species
of pure evil. n366
[*58] A date rapist is by definition a failed seducer, for the woman did not consent. His
wilful ignorance, as manifested by his failure to inquire about the woman's desires, and his
aggressive efforts to overcome her reluctance, are evil. He convinces himself that he has
engaged in seduction. In this sincere belief he expresses only his wish for her moral ruin. He
cares nothing for her needs, only for his power over her, perhaps also combined with his
heightened esteem in his friend's eyes.
The empirical data shows that date rapists are particularly accepting of sexist stereotypes.
n367 Date rapists draw especially sharp lines between the sexes. They view men and women
as radically different beings, with different thoughts, emotions, and capacities. Each sex plays
clearly different social roles. n368 But this emphasis on otherness is essential to pure evil.
Pure evil is interpersonal; it involves the desire that a specific other suffer, "the pleasure of
evil has the idea of the victim's sharp distinctness from me built into it: what I relish is that it
is not me that is suffering. Anything that unites the victim with me will therefore cut against
my ability to form evil intentions." n369 The date rapist's ability to see women as the other
enables him to revel in her debasement and to take pleasure in his domination of her psyche.
This character trait merits blame and punishment.
D. Hierarchy and the Retributive Emotions
The criminal law institutionalizes the retributive emotions. n370 Under the evaluative view,
those emotions have cognitive elements [*59] and are thus subject to each person's
control. n371 Contrary to the liberal tradition, the retributive emotions reflect the idea that
one legitimate concern of social life is the type of people we want to develop and flourish.
n372
Resentment is one type of retributive emotion. Resentment involves a defense of the
resenter's self-worth. Resentment is a kind of passion experienced when he suffers
demeaning treatment for which another can be blamed. n373 The cognitive component of
resentment is usually a fear that the insulter was right to treat the resenter as having
comparatively lower value. This fear is combined with the resenter's wish that his worth is
instead still high. n374 Resentment is accompanied [*60] by an act of defiance, a protest to
assert the resenter's true, higher value. n375 A resenter assails the one who has demeaned
her as a way of challenging the insulting message. n376 However, resentment is often a
companion to malicious hatred, an anger directed toward the insulter himself and not only his
message. Malicious haters seek vengeance, bringing the insulter low, even lower than what is
necessary to assert the equal worth. n377 Malicious hatred is self-defeating as its aim is to
raise the hater up by lowering another. Unfortunately, victory over the low does not affirm
the hater's high value and is therefore not fully satisfying. n378
Indignation, like resentment, involves a desire to repudiate the demeaning message. Unlike
resentment, an indignant person is so self-confident that her sense of self-worth is unaffected
by the offender's action. n379 She has no fear that she is of low value, thus she has no need
for acts of defiance to assert her worth. However, she does fear that, without punishment,
the insulter will offend again. n380 She strikes back to defeat his evil cause rather than to
defeat him. n381 Also, unlike resentment, indignation need not be personal. Persons or
groups, even society as a whole, can be indignant about another person's mistreatment.
n382 Indignation is an emotional protest against that individual's immoral abuse at another's
hands, a defense of the values assailed by the offender. n383
Retributive punishment is the defeat of the wrongdoer at the hands of the victim or her agent
27
and a necessary step in symbolizing the correct valuation of wrongdoer and victim: an
assertion of their equal worth. n384 The desire for retribution is an expression of the need of
the indignant to right the wrongful message sent by the insulter. n385 This desire, unlike
malicious hatred, is to assert the victim [*61] and offender's equal value. n386 The lex
talionis should thus be seen as meaning that the defendant must be mastered to the same
extent as he mastered his victim. n387
The desire for retribution can be accompanied by moral hatred, the sense that the
wrongdoer's "entire nature as [a] person takes on an evil cast": n388
One who could commit such a sin seems so intimately linked with evil upon which he acts
that he seems to be, in and of himself, a kind of sin, irredeemably "rotten." One's opposition
to his crime, and the insulting message in that crime, inevitably becomes opposition to him
and he generates the desire to defeat him and his cause. n389
While there can be dangers in moral hatred, it is often a legitimate response that may
encourage moral improvement. n390 Resentment, malicious hatred, indignation, and moral
hatred thus all turn on a theory of human worth. Whether we accept or reject this theory, it
provides a useful basis for critiquing the moral right to feel emotion.
The failure to feel resentment can, for example, be an indicator that the person wronged
inappropriately felt unworthy of better treatment. That person believed that she had no right
to expect more. n391 The feeling of diminishment may explain why so many women do not
see date rape for what it is. Moral philosopher Jean Hampton explains:
A rape counselor once told me of a woman who failed to tell anyone that she had been raped
by a man she knew because she thought that this was the sort of thing women had to "take"
from men. The rape victim is actually an example of someone who suffered a more severe
kind of injury than simply being demeaned. Prior to the rape she received treatment
persuading her that her value as a woman did not rule out this treatment by men. She is like
a princess who believes, after receiving treatment appropriate only for a pauper, [*62] that
she really is a pauper. Such a person cannot feel demeaned, because she has already
suffered injury to her sense of self-worth .... This injury ... [is] the experience of
diminishment following a wrongdoing. n392
Society's response to rape can either confirm or repudiate the victim's sense of
diminishment. n393 The victim and others will see this response as indicating how valuable
society considers her to be. n394 She will in turn consider society's opinion as evidence of her
true value. n395
The non-communicative date rapist sees his victim as a means to his ends: achieving greater
self-esteem or the pleasure of controlling another. He does not see the victim as an end in
herself. He certainly does not see her as worth his sincere efforts to determine her own needs
and choices. He either assumes that she wants what he does, or does not care about her
desires. At his worst, he wants her to suffer. n396 Yet, precisely because of his indifference
or his expansive notions of assumed risk, he may believe that she consented. A subjective
mental state requirement thus allows him to plead mistake of fact, n397 and he is acquitted.
His acquittal sends the message that society condones his low opinion of the victim. She is
told that he was right to not seek her permission. Moreover, although it is his mental state
that matters, it is her actions that are scrutinized at trial. Rapists often argue that victims
28
behaved in ways that led him to believe that she consented. As a consequence, he may
portray her as a tramp. n398 Thus, the trial process itself diminishes and demeans her
further. n399
The disparate treatment of Black suspects and victims also reflects a censurable theory of
human worth. The failure to feel resentment or indignation can stem from a theory about the
offender's inferiority. [*63] The Black suspect is seen as so insignificant that his behavior
need not trouble society. n400 If the criminal justice system condemns a Black rapist only
when he rapes White women, the system is saying two things. First, Black women are
unworthy of society's equal concern and protection. Second, Black men are worthy of notice
only when they impinge upon White authority:
A person's view of her value and relative rank among her fellows determines whether she will
interpret an action as demeaning. For example, she can feel demeaned by another's action if
she believes she was the superior of this person but has received treatment that accorded her
mere equality. A white person who is forced to sit next to a black person on a bus might
believe this demeans her by making it appear that they are of equal rank and value and thus
should be accorded equal treatment. n401
Sometimes, as in this example, there is no moral right to feel demeaned. Yet a system in
which Black men are punished only for assaulting White women suggests that Whites feel
demeaned by sexual contact with Blacks. A subjective mental state requirement provides a
space for White jurors to draw on this unjustified sense of outrage. Jurors may reason
(perhaps unconsciously) that the Black defendant must have known that a White woman
would not consent. Correspondingly, when the rape victim is a Black woman, an occasion is
created for jurors to conclude that an alleged rapist of any race is more justified in believing,
and thus probably did believe, that a Black woman (as opposed to a White woman)
consented. n402 Here the moral failing is not feeling outrage at the Black woman's abuse.
Racial disparities in rape cases cannot be cured solely by re-defining the mental state
element of the crime. Nevertheless, re-definition can sometimes help. Under Pineau's
proposal, a man who fails to make reasonable efforts to determine a non-consenting woman's
desires is a rapist. n403 Because it is irrelevant to Pineau whether the rapist believed that
she consented, n404 her vampish behavior is irrelevant, so that stereotypes about Black
women's sexual hunger matter less.
Stereotypes may affect whether jurors believe that the victim consented, which is still a
relevant inquiry under Pineau's re-defined crime. This means only that race affects credibility
judgments. Credibility judgments must be made no matter what definition of rape is utilized.
Only more radical procedural changes can address that problem. Under present law in most
states, a man who reasonably [*64] believed that the woman consented is acquitted. n405
Under Pineau's law, he is convicted, unless he reasonably tried to determine what she
wanted.
Perhaps even more importantly, Pineau's proposal sends a message that all women are
entitled to equal care, concern, and respect. Even if a man believes that a woman is "loose,"
he must ask. Even if a juror concludes that the offender reasonably believed that his victim
had consented, he must ask. Her race and social status do not change his obligations. Nor do
his racial or gendered prejudices or stereotypes alter his duty. All men are assumed capable
of giving, and all women capable of receiving, sexual care and concern. Any man who fails to
ask merits punishment, a mark of our belief that his worth is equal to his victim's. Punishing
the non-communicative date rapist thus embraces the retributive emotions based upon a
normatively admirable theory of equal human worth and rejects those that hold the contrary.
IV. Procedural Protections
29
One final objection made to the idea of communicative sexuality by its critics is that redefining the substantive law of rape will do little good. Judges and juries will continue to be
influenced by cultural biases that work against rape victims and defense lawyers will continue
to tell trial tales that feed those biases. n406 This objection, unlike others made to the
communicative sexuality idea, has merit. Changes in the substantive law alone will not alter
verdicts. However, changes in substance can work with new procedures to offer hope. The
goal of re-defining date rape to promote communicative sexuality is not utopian. Rather, it is
rooted in the idea that condemning evil character must be a central goal of the criminal law.
This goal is undermined by our present dichotomous notions of the sexual emotions:
mechanistic conceptions of uncontrollable urges for men and evaluative conceptions of
controllable desires for women. These same insights support procedural reforms. Reform can
be rooted in five areas: (1) character evidence, (2) jury selection, (3) cross-examination, (4)
experts, and (5) jury instructions.
[*65]
A. Character Evidence
The Federal Rules of Evidence have recently been amended to permit evidence of prior acts of
sexual misconduct against a defendant at a sexual assault trial. n407 At the same time, the
federal rape shield rule prohibits, with some exceptions, inquiry into the alleged victim's prior
sexual conduct. n408 These rules radically change prior law because they create a major
exception to the ancient bar on using character evidence to prove current conduct in sexual
assault trials. n409 In order to justify such radical changes in the law, n410 it is necessary to
understand the nature of "privacy" at the root of this apparent disparate treatment in which
prior sex acts may be used as evidence against the accused rapist, but not against the
alleged victim's veracity.
1. What is "Privacy"?
The constitutional right to an abortion, the Fourth Amendment right to be free from
unreasonable searches and seizures, and the protection of a rape victim's identity are all
examples of a "right to privacy." n411 Yet these situations seem to involve very different
interests. The right to choose an abortion involves autonomy. n412 The Fourth Amendment
protects many rights, including the right to exclude an unwanted guest from one's home, a
right associated with property ownership. n413 The rape victim's identity involves a right to
keep certain sensitive or important information secret. n414 Scholars thus debate whether
privacy has any coherent meaning at all. n415
[*66] We can bring unity to diversity by seeing privacy as marking a zone of interests
"beyond the legitimate concern of others for a certain set of reasons ...." Those reasons are
"freedom from scrutiny, judgment, and pressure to conform or to reveal one's weaknesses
and vulnerabilities." n416 Importantly, this set of reasons has expressive value. n417
Freedom from scrutiny, judgment, and conformism permit us to talk, think, and act in ways
that express and create our individual uniqueness. A sense of the unique gives us our
individual identity. The need to feel special is deep-seated in our culture. William James put it
thus:
The first thing the intellect does with an object is to class it along with something else. But
any object that is infinitely important to us and awakens our devotion feels to us also as if it
must be sui generis and unique. Probably a crab would be filled with a sense of personal
outrage if it could hear us class it without ado or apology as a crustacean, and thus dispose of
it. "I am no such thing," it would say; "I am MYSELF, MYSELF alone." n418
[*67]
30
Our sense of "self" is social too; we define ourselves in part by the groups to which we
belong. But our sense of uniqueness is a prerequisite to the social. We cannot form different
kinds of human relationships, especially intimate ones, without a sense of being separate
from others. n419
This sense of separation requires "territories of the self." n420 Our culture defines territories
within which we can bar access to either our physical or inner selves. Others treat us as
separate, unique human beings worthy of respect by avoiding territorial invasion:
Conversely, we invite intimacy by waiving our claims to a territory and allowing others to
draw close. An embrace, for example, can signify human compassion or desire, but if it is
unwelcome it can instead be experienced as a demeaning indignity. The identical physical
action can have these two very different meanings only because its significance is constituted
by the norms of respect which define personal space. n421
Similar "norms of respect" define informational space. "Just as we feel violated when our
bedrooms are invaded, so we experience the inappropriate disclosure of private information
as 'pollutions or defilements.'" n422
Revealing private information thus weakens our sense of separateness from others. n423 We
feel exposed and vulnerable. We willingly disclose our weaknesses and vulnerabilities only as
a sign of trust. However, we will not expose ourselves if we fear public scrutiny by those we
do not trust. n424 Privacy is thus central to the formation of human relationships, especially
intimate ones. n425 Intimate relationships draw their meaning and value from love, liking, or
care. Lovers [*68] exchange passionate kisses and secrets in their bedrooms, not in
business meetings. n426
Yet, some feminists have cautioned that not all human relationships should be fostered.
Subordinating relationships in particular must be challenged, not shielded. If the home is a
private preserve, then the public and the law will not discover or prevent rape, degradation,
and physical abuse in the martial bedroom. n427 A feminist law of privacy therefore protects
liberating and exposes subordinating relationships.
2. Are Prior Sex Acts Private?
Consensual sex acts are the most intimate of our relationships. n428 When information about
those intimate acts is revealed against our will, our territories of the self are invaded. We feel
polluted and defiled in a way akin to unwanted physical invasion. That sense of pollution is
magnified for the rape victim, who has already suffered among the most painful of physical
assaults. n429 To reveal a woman's prior consensual sexual activity is to wound precisely the
kind of liberating human relationships and self-expression that the law of privacy should
protect.
However, nonconsensual sex acts involve abusive, degrading relationships. To reveal a rape
defendant's prior acts of forced sex is to explode human oppression. n430 The law should
reject a privacy conception that shields a defendant's efforts to subordinate women to his
own, personal sovereignty.
Credibility complicates the analysis. If the allegations of prior forced sex acts by the man are
true, those acts should be exposed. If they are found to be false because they did not
happen, then nothing damning has been revealed. However, if a jury believes that sex acts
took place but were consensual, then we have invaded precisely the kind of intimate
relationships that privacy best protects.
31
[*69] Consequently, we cannot avoid balancing. Strong reasons counsel in favor of
admitting evidence of a rape defendant's prior forced sex acts despite our privacy concerns.
Unlike with a rape victim, truthful allegations of prior sex acts do not unduly step on the
male's privacy. While there is a risk that the allegations of force will be proven false, the
collateral harm to the male in our culture is much less than the harm to the woman. A man's
reputation is on some level enhanced in our culture when he is revealed to be engaging in
consensual sex. He is a "ladies' man." n431 This enhanced reputation stems precisely from
our culture's mechanistic notion of male sexuality. Men, we believe, cannot control their
desires and should not be blamed for acting upon them with a freely consenting adult woman.
n432
Unlike the man's reputation, the woman's reputation is sullied badly. Because of the
evaluative conception of female sexuality, a woman is thought to be capable of, and
responsible for, her desire. Therefore, her promiscuity is not excusable. Despite changing
sexual mores, the label "slut" still carries a powerful stigma. n433
If, instead, allegations of prior acts of forced sex by the defendant are proven true, that may
unsettle cultural assumptions, thereby making the jury more willing to fairly consider other
evidence of the defendant's guilt. n434 While men are not ordinarily blamed for having sexual
desire, nor even for often acting on it, they are expected to exercise enough self-control to
avoid bullying. n435 Although bullying is hard to prove in a particular instance, especially
where the woman has violated norms of proper gendered behavior, a pattern of prior abuse
makes the claim of present abuse more plausible. n436 In other words, the jury may start to
judge the offender rather than the victim. Every time that the jury shifts its attention to the
defendant's thoughts and behavior, it starts to consider the defendant's accountability for his
current manifestation of insensitive sexual character. Yet, given the strong forces working
against his being held accountable, it is unlikely [*70] that the jury will give his prior acts of
sexual misconduct too much weight. n437
On the other hand, if a jury concludes that the male's prior acts were in fact consensual,
there will have been some invasion of his legitimate privacy interests even if the harm done
to him is far less than the harm done to a rape victim whose past sex life is publicly exposed.
We should, therefore, require proof of a larger number of prior acts and enough similarity to
the facts of the present case to justify believing that this man is more likely than others to
commit the crime. n438 The Judicial Conference of the United States has made a proposal
along these lines, and state and revised federal rules should use that proposal as a model.
n439 The argument made here does not in itself demonstrate that character evidence reform
of this nature is justifiable. However, this argument does show that the case for reform along
these lines is strengthened by my revised theory of communicative sexuality.
B. Jury Selection and Instructions
Under a regime of communicative sexuality, a jury will be instructed that it must determine
whether the defendant made reasonable communicative efforts to seek the woman's consent
to intercourse. The jury will further be instructed that reasonableness is determined by the
questions and demeanor of a sensitive person. A sensitive person is vigilant about whether
his conduct will adversely affect another and cares about that other's well-being. Further, a
sensitive person critically appreciates what is morally relevant about the situation to that
other and has a strong motivation to act to minimize the harm from his conduct. n440 The
sensitive person need not always put the other's needs above his own, but he is aware of that
other's needs and is motivated to value them and try to accommodate them to his own. n441
None of this means that sex must be passionless or mechanical. The jurors will be instructed
that for the sensitive person, sex must involve caring about and respecting another's wishes.
Express verbal inquiries by the defendant about the woman's willingness to proceed, if met
by "yes" answers under circumstances showing that it was voluntarily given, would suffice.
Such inquiries may, however, [*71] not always be necessary. For example, a man's gentle
caress of a woman with whom he has a romantic relationship might be returned with a
passionate embrace, an act fairly interpreted under many circumstances as a "yes" to that
level of physical contact but no more. n442
32
The sensitive person is not an abstract and unattainable ideal. It is something within the
common experience of many. For example, many men have made overt sexual advances
toward a woman only to be told "no." Even a marginally sensitive man complies, while the
insensitive one pushes forward, choosing to assume that the woman really wants it. The
distinction between the two responses is easy to understand and accept. It should not be
hard from there to explain that marginal sensitivity is not enough. The male should, in some
fashion, be expected in a new relationship to inquire whether touching the woman in a
particular area is acceptable before he does so, rather than putting the burden of a "no" on
the woman. Of course, his failure to make such inquiry about intimate touching is not rape.
However, it is rape if he continues in his failure to inquire to the point of sexual intercourse
to which the woman has not consented.
For these distinctions to be accepted, selected jurors should reject the idea that a man cannot
control his sexual urges and has limited control over his resulting actions. Jurors must
correspondingly reject the idea that any woman who engages in any degree of sexual contact
accepts the risk that she will ignite the flame of the male libido. On the other hand, the jurors
must also accept the idea that men can and should control their feelings and behavior enough
to ask permission to proceed and to respect the woman's "yes" or "no" and to prefer the risk
of a "no" to the risk that he will cause pain. The fact that some women might indeed mean
"yes," or "maybe," or "we'll see" when they say "no" does not justify the male's proceeding in
the face of the risk that the woman means what she says. If she really means yes, she will
likely say "yes." The law should not validate behavior prompted by patriarchal values, and
should not shy away from its role as moral educator of both men and women. This is a minor
limitation on the autonomy of some to protect the autonomy of many.
Because our culture teaches us very different lessons, jurors who embrace these attitudes will
be hard to come by. The question is a matter of degree. The goal must be to select those
jurors least in the grip of subordinating cultural tales. n443 Such jurors may be open to
learning newer tales, at least slightly different from the old. n444 However, we cannot rely on
jurors' self-descriptions of their attitudes or of their ability to be fair.
[*72] As commentators have noted in a different context, we should pause when a juror
remarks that "the defendant should get the electric chair" but then insists he can be fair and
impartial. n445 Jurors simply may not be fully aware of their attitudes. n446 Additionally,
even jurors with an overt commitment to feminist goals may find themselves very skeptical of
a woman's truthful testimony in a concrete, real case. n447
Finding jurors who can follow the law requires a departure from the usual voir dire
procedures. New procedures must be devised that explore in great depth those factors that
affect the likelihood that a juror will hold the defendant to standards of reasonable
communicative sensitivity. Prospective jurors in rape cases might, for example, be required
to participate in pen-and-pencil, and perhaps other, tests for personality traits and attitudes
that make them likely to be more accepting of cultural rape tales. n448 Privacy protections,
requiring that this information not leave the courtroom, could be built into the relevant
authorizing rules or legislation. n449 There is significant research suggesting that such
procedures can be effective in screening out those most rigidly bound by traditional modes of
sexual thinking. n450 Perhaps those refusing such testing should be dismissed as potential
jurors. For those who comply with the testing, the results will enable counsel to make more
intelligent use of preemptory strikes.
The results should also enable the prosecution to strike for cause those persons scoring so
high on those relevant personality traits and attributes that they are likely to fall prey to rape
myths. Important preliminary policy questions to be decided under this new scheme are
these: how "high" a test score is high enough, and should that judgment be left to judicial
discretion based on weighing a wide array of case-specific juror data, or simply on test
scores? These policy questions should be worked out by crafting court rules on the subject
based on consultation with qualified psychologists familiar with the experimental data and
methodology, and with input from the judiciary, prosecution, and defense counsel. At the
33
very least, handbooks should be drafted to guide judges in the intelligent exercise of their
discretion, much like the handbooks drafted to aid trial judges in case-specific admissibility
questions regarding scientific evidence. n451 Similar procedures should be developed to
identify and exclude jurors [*73] for whom the race of the defendant, victim, or both leads
the jurors to buy into race-based notions of sexuality.
C. Expert Testimony
There are many benefits to expanding the scope of expert testimony at rape trials. n452
Experts would discuss rape survivor demographics, explaining that women of all ages and
backgrounds are raped. They would explain why a "true" victim might delay reporting a crime
or that acquaintance rape is common. The experts would debunk the myth that only deviants
commit rape and would testify about the rapist-victim relationship. They would answer juror
concerns about why a woman might engage in "alluring" conduct and yet have no interest in
sexual intercourse, or how a date rapist can isolate a victim and overcome her resistance
without the need for bruising force. Understanding these dynamics gives jurors' a framework
for understanding the case before them. Finally, experts would go beyond educating jurors
about rape to educating them about why they resist giving fair consideration to rape victims'
tales. n453 Cognitive research demonstrates that well-learned stereotypes persist "long after
a person has sincerely renounced prejudice." n454 Making jurors aware of why such
stereotypes continue to have a grip on their thinking despite their best intentions does offer
hope of loosening that grip. n455
It is this last point that suggests a further expansion of expert testimony here. Jurors should
be educated by an expert about how and why most of us hold a mechanistic view of male
sexual desire, but an evaluative view of female desire. By becoming conscious of the
cognitive and emotional sources of our attachment to this dichotomy, we may lessen that
attachment, thus moving jurors toward a more equal, caring alternative. n456 Corresponding
expert testimony as to why and how race affects our thinking about sexuality might also be
necessary in an appropriate case. Such testimony can aid minority defendants in overcoming
biases that work against them as well as minority victims in accomplishing the same task.
D. Cross-Examination
The emphasis of cross-examination would change under a regime of communicative
sexuality. The focus would shift from what the victim did and what the defendant believed
about what she did to what he, the defendant, did. Pineau herself explained it this way:
[*74]
The cross-examiner would not have to rely on the old criteria for nonconsent. He would not
have to show either that she had resisted him or that she was in a fearful or intimidated state
of mind. Instead, he could use a communicative model of sexuality to discover how much
respect there had been for the dialectics of desire. Did he ask her what she liked? If she was
using contraceptives? If he should? What tone of voice did he use? How did she answer? Did
she make any demands? Did she ask for penetration? How was that desire conveyed? Did he
ever let up the pressure long enough to see if she was really interested? Did he ask her which
position she preferred? Assuming that the defendant does not perjure himself, he would lack
satisfactory answers to these questions. But even where the defendant did lie, a skilled crossexaminer who was willing to go into detail could probably establish easily enough when the
interaction had not been communicative. It is extraordinarily difficult to keep up a consistent
story when you are not telling the truth. n457
Pineau may have underestimated the ability of some criminal defendants to tell convincing
lies. In my experience as a trial lawyer, it was fairly easy for defendants to lie about, or
exaggerate, their victim's behavior, to paint her as a tramp to an all too credulous jury. My
sense of the many alleged sex offenders whom I have tried, however, is that their macho
34
instincts would make it hard for them to convincingly fake being sensitive.
None of this analysis is meant to suggest that credibility problems, not just in the form of lies
but also in the form of differing memories and differing interpretations of events, will
disappear under a regime of communicative sexuality. While it is hard to craft a fair law of
rape, or, in practice, to implement any rape laws without juries considering the woman's
consent and thus the woman's behavior, n458 communicative sexuality shifts the relative
focus much more heavily to the man. Furthermore, his expected goal is sensitivity to his
partner's needs, conveying the message that men should care. This expectation teaches
useful cultural lessons that are often absent from current rape trials.
V. Conclusion
Pineau's idea of communicative sexuality is the starting point for a sound re-conception of
date rape. Existing rape legislation and reform commentary fail to appreciate our culture and
our law's dualistic gendered concept of sexual emotions. We view male sexuality under a
mechanistic view. We therefore reduce or eliminate male responsibility for much aggressive
sexual behavior. On the other hand, we [*75] view female sexuality under an evaluative
view. Because women can control their desire, but men cannot, we often hold women
responsible for behavior that "inflames" male sexual need. The result is that in practice, an
often insurmountable burden is placed on the prosecution in proving date rape.
A substantive re-definition of date rape to include nonconsensual sexual intercourse where
the man has not made reasonable communicative efforts to obtain the woman's consent
restores an appropriate prosecution burden. This new definition of date rape assumes that
men as well as women have the ability to control their sexual appetites. This emphasis on the
need to cure our unwise popular notions of gendered sexual emotions is the most powerful
reason to embrace the communicative sexuality idea-a point that Pineau herself overlooked.
Pineau's original conception also failed to give much guidance for determining what
communicative efforts are reasonable. This article seeks to give such guidance by rooting the
communicative sexuality idea in the concept of the sensitive personality. The justification for
promoting a sensitive personality and punishing an insensitive one is that a character
morality, rather than an action, should guide our decisions about criminal punishment. Thus
this article defends the idea that society should seek to punish the evil character. This
character morality is a superior approach to the action morality idea, in which freely chosen
actions are seen as determining moral blame.
Because character morality turns on some notion of evil, this article explored two types of evil
character at work in rape cases: instrumental evil and pure evil. Either type of evil may exist
in date rape, and either type justifies criminal punishment. The indifference of the sexually
insensitive personality, however, justifies serious punishment even if the defendant was
"merely" negligent in being unaware of the harm that he did because he did not ask. The
more aware the defendant was of the pain he might cause, the closer he comes to pure evil.
Date rape involving recklessness thus merits even more punishment (a higher degree of
felony), and forcible rape more punishment still. n459
Additionally, this article explained that the theory of communicative sexuality, when rooted in
our gendered concepts of the emotions, makes it easier to justify and implement procedural
changes as adjuncts to the substantive ones. For example, voir dire should be expanded to
identify potential jurors unlikely to escape the grip of the flawed mechanistic notion of sexual
desire. Similarly, cross-examination and jury instructions in the new regime can focus on the
offender's insensitive sexual behavior rather than the woman's alleged enticing actions. In
addition, expert testimony can teach jurors why they often fall prey to mechanistic
assumptions, thus helping them to break free of those assumptions.
[*76] Furthermore, the gendered concepts of the emotions illustrate why disparate
treatment of victim and offender by the law of character evidence is justified. Evidence of
prior consensual sexual conduct by the victim invades the kind of privacy that is essential to
35
fostering healthy intimate relationships. On the other hand, evidence of prior forcible sexual
conduct by the accused invades the kind of privacy that shields patriarchal oppression. Any
risk of error in these decisions-that is, the risk that the accused's prior sex acts were indeed
consensual-does relatively little injury to the accused. Indeed, it boosts his reputation as a
mechanistic stud. By contrast, evidence of prior consensual sexual activity brands the victim
with the mark of a sexually controlling woman implied by the current evaluative view. The
accused should, therefore, bear the risk of loss. In a sound date rape regime, rape shield
laws should consequently properly protect against disclosure of women's prior sexual
behavior while character evidence rules should permit disclosing the accused's prior forcible
sex acts.
Finally, this article examined the cognitive dynamics by which race becomes sexualized, using
African-Americans as an example. Close study of White attitudes toward Black sexuality
reveals a complex set of emotional assumptions by the majority race. While male sexuality
remains governed by a mechanistic conception of male desire, for Black men a
hypermechanistic conception controls. Simultaneously, however, all Black male behavior that
is seen as race-inappropriate is judged by an evaluative view. In the relatively rare instances
of inter-racial rape, therefore, Black men, by virtue of their race alone, may be viewed as
dangerous beasts, nevertheless fully responsible for what will be seen by Whites as acts of
racial insurrection. Black women's sexuality is, however, viewed as either hypermechanistic
or hyperevaluative. For intra-racial rape, the result is enormous difficulty in convicting a
Black woman's assailant.
A theory of communicative sexuality, as informed by the two concepts of the emotions, seeks
to restore equal treatment. All men are to be judged on whether they make reasonable
communicative efforts to obtain the woman's consent. All women are presumed entitled to
such treatment. Current rape law makes no race-based distinctions, but a revised regime
would overtly recognize that our culture does make such distinctions based on stereotypes
while seeking to correct those resulting biases. Perhaps more importantly, the reforms
recommended here send a powerful, clear message that the law in practice, not merely in
theory, truly aspires toward racial and gender equality.
FOOTNOTES:
n1. See, e.g., Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the
Courtroom, 5 S. Cal. Rev. L. & Women's Stud. 387, 389-94 (1996) [hereinafter Taslitz,
Patriarchal Stories].
n2. See id. See generally Andrew E. Taslitz, Rape and the Culture of the Courtroom (1999)
[hereinafter Taslitz, Rape and Culture].
n3. See generally Taslitz, Rape and Culture, supra note 2.
n4. See Lois Pineau, Date Rape: A Feminist Analysis, in Date Rape: Feminism, Philosophy,
and the Law 1, 6-7 (Leslie Francis ed., 1996) [hereinafter Pineau, Date Rape]. "Date rape,"
as I define it here, is non-consensual sexual intercourse, absent any showing of physical
injury or the threat of physical injury, and between acquaintances. See Leslie Francis,
Introduction, in Date Rape: Feminism, Philosophy, and the Law, supra, at vii, xii. Note,
however, that the law permits a great many threats of non-physical harm, as well as much
physical aggression that is deemed to fall short of physical injury or the threat of physical
injury. See Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure
of Law 1-20, 33-46, 52-60, 74-81, 88-98 (1998) (offering case law and examples).
Date rape is usually prosecuted under forcible rape statutes, which in many jurisdictions are
a variation of the classical common law crime of rape: forcible, non-consensual sexual
intercourse by a man with a woman not his wife. See, e.g., Joshua Dressler, Understanding
Criminal Law 531-32 (2d ed. 1995) (noting variations among modern statutory definitions of
rape, most of which boil down to elements similar to the common law definition noted here);
36
Schulhofer, supra, at 1-20, 33-46, 52-60, 74-81, 88-98 (observing that, despite modern
reforms, in practice, rape in most jurisdictions still effectively requires non-consent and some
significant use of force). Statutes do often include some limited forms of non-forcible rape,
such as sexual intercourse with an unconscious or drugged female, but the absence of
physical injury or its threat in date rape cases makes it hard under prevailing social norms to
prove the use of "force" beyond a reasonable doubt. See, e.g., Taslitz, Patriarchal Stories,
supra note 1, at 394-439, 448-53 (explaining the difficulty of proving "force" given cultural
narratives permitting high levels of male aggression in "normal" "consensual" sex).
n5. See Francis, supra note 4, at xiii-xiv.
n6. See id.
n7. See Lois Pineau, A Response to Critics, in Date Rape: Feminism, Philosophy, and the
Law, supra note 4, at 63, 76-80 [hereinafter Pineau, Response to Critics] (describing her
critics as charging her with "utopianism").
n8. See Francis, supra note 4, at xvii (noting that Pineau's later work suggests that rape
should be a strict liability crime). Compare David M. Adams, Date Rape and Erotic Discourse,
in Date Rape: Feminsim, Philosophy, and the Law, supra note 4, at 27, 31-32 (outlining
elements of Pineau's definition of date rape) with Lois Pineau, Response to Critics, supra note
7, at 86-91 (defining what she means by "reasonableness" in communicative sexuality). Cf.
Dressler, supra note 4, at 545-47 (noting that only in a small minority of jurisdictions is a
defendant's reasonably mistaken belief in a woman's consent not a defense, thus effectively
imposing strict liability); Model Penal Code 2.02, 213.1 (1962) (requiring proof of
"recklessness" as to a woman's consent in order to prove rape). Pineau is not a lawyer, and
her articulation of a revised notion of date rape is not clearly elaborated in terms of
elements. I think, however, that I have fairly translated her work into lawyers' terms. I read
Pineau differently, however, than does Professor Schulhofer, a point to which I return later in
this article.
n9. See Catharine Pierce Wells, Date Rape and the Law: Another Feminist View, in Date
Rape: Feminism, Philosophy, and the Law, supra note 4, at 41, 48-50 (stating that Pineau's
proposals cannot overcome the tug of popular culture); Angela P. Harris, Forcible Rape, Date
Rape, and Communicative Sexuality, in Date Rape: Feminism, Philosophy, and the Law,
supra note 4, at 51, 52-59 [hereinafter Harris, Forcible Rape] (noting that Pineau-like
proposals have been tried and failed, as new theories of "reasonableness" cannot be imposed
on a community). See generally Angela P. Harris and Lois Pineau, A Dialogue on Evidence, in
Date Rape: Feminism, Philosophy, and the Law, supra note 4, at 109, 109-31 [hereinafter
Harris & Pineau, A Dialogue on Evidence] (outlining dialogue in which Angela Harris expresses
grave doubts about Pineau's proposals overcoming a variety of obstacles to changing case
outcomes); Schulhofer, supra note 4, at 84-88 (arguing that Pineau's proposal is both
politically infeasible and requires inquiries that are too hard for jurors to make).
n10. See infra text accompanying notes 23-29.
n11. See infra text accompanying notes 27-29.
n12. See infra text accompanying notes 30-39.
n13. See infra text accompanying notes 30-39.
n14. See infra text accompanying notes 163-96.
n15. See infra text accompanying notes 163-96.
n16. See infra text accompanying notes 268-83.
n17. See infra text accompanying notes 276-313 (defining "character" and "action" morality).
37
n18. See infra text accompanying notes 270-78, 283-86.
n19. See infra text accompanying notes 285-349.
n20. See infra text accompanying notes 327-369.
n21. See infra Part IV (discussing proposed procedural changes and expressive function).
n22. See infra Part IID (summarizing evidence concerning our "raced" emotions).
n23. See Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law,
96 Colum. L. Rev. 269, 273 (1996).
n24. See id. at 278-80.
n25. Id.
n26. See id.
n27. See id.
n28. See id. at 298.
n29. See id. at 299.
n30. See id. at 298, 301-05. See also Immanuel Kant, The Metaphysics of Morals: Part II:
The Metaphysical Principles of Virtue, in Ethical Philosophy 53, 68 (James W. Ellington trans.,
1983) ("Virtue" includes the "duty of apathy," "the prohibition that man should not let himself
be governed by his feelings and inclinations."); B.F. Skinner, Beyond Freedom and Dignity
27-43 (1971) (recommending "operant conditioning" and manipulation of "behavioral
processes characteristic of the human organism" as ways to control what most of us would
call the human passions).
n31. See Andrew E. Taslitz, A Feminist Approach to Social Scientific Evidence: Foundations, 5
Mich. J. Gender & L. 1, 20-21 & n.79 (1998) [hereinafter Taslitz, Feminist Approach]; Kahan
& Nussbaum, supra note 23, at 282-84 (summarizing flaws in mechanistic view). Some wellrespected modern mavericks do nevertheless find a core of truth in the mechanistic view.
Philosopher Paul E. Griffiths in particular argues that there are a small number of "affect
program" emotions, emotions that involve facial expressions and autonomic nervous system
reactions unique to those emotions. See Paul E. Griffiths, What Emotions Really Are 77-78, 83
(1997). Yet even he concedes that there is often a cognitive component in the sense that one
affect program emotion, fear, is a response to danger, so we often must first decide that we
face danger in order to feel fear. See id. at 89, 92. Sometimes we bypass this evaluative
process because we have learned from past experience to feel fear in a particular situation,
despite our present understanding that there is no danger. See id. at 92-95. This observation
itself demonstrates that culture and socialization can play a role even in affect-program
emotions, and more importantly, that our higher cognitive emotions, such as disgust, love, or
loyalty are motivational patterns derived from goals, patterns that combine biological,
cultural, and experiential factors. See id. at 100-01, 104, 118, 120-21, 132-36. Additionally,
many lay people describe some emotions as, for example, anger, when they are experiencing
a higher cognitive emotion and not the affect-program emotion of anger. See id. at 137-67.
n32. See Taslitz, Feminist Approach, supra note 31, at 20-21.
n33. See Kahan & Nussbaum, supra note 23, at 285-99.
n34. See Taslitz, Feminist Approach, supra note 31, at 20-23.
38
n35. See Kahan & Nussbaum, supra note 23, at 293-99.
n36. See id. at 296-306.
n37. See id.
n38. See id. at 287-88, 301-05.
n39. See id. at 286-87. This moral disapproval of even particular emotions sharply
distinguishes the evaluative view from other positions on the nature of the emotions:
Quite often, criminal law doctrines are structured to assess not the effect of emotion on
volition, or the contribution of emotional dispositions to desired states of affairs, but rather
the moral quality of the values that a person's emotions express. When this is so, it is
possible to make sense of the law only by imputing to it a theory of moral accountability
consistent with the evaluative conception of emotion. Aristotle's position on character - that it
is appropriate to expect a person to value the right things, in the right ways, at the right
times - is one such theory.
Id. at 303-04. In other words, while the evaluative view is concerned about preventing
wrongful acts, its special concern is with what your emotions reveal about your character.
See id. at 307. Holding you blameworthy for your weak or evil character is thus seen as one
(but not the only) important object of the criminal law. See id. at 290, 305. The failure of a
criminal justice system to recognize the importance of an evaluative conception of the
emotions can lead to poor public judgments and undermine confidence in that system. See
Andrew E. Taslitz, Abuse Excuses and the Logic and Politics of Expert Relevance, 49 Hastings
L.J. 1039, 1054-56 (1998).
n40. See Kahan & Nussbaum, supra note 23, at 299-301.
n41. See id. at 302-50.
n42. See Dressler, supra note 4, at 490-98.
n43. See id.
n44. See Kahan & Nussbaum, supra note 23, at 305-06; Dressler, supra note 4, at 490-98
(defining manslaughter and "heat of passion.").
n45. See Kahan & Nussbaum, supra note 23, at 306-07, 312-15.
n46. See Dressler, supra note 4, at 478.
n47. See Kahan & Nussbaum, supra note 23, at 307-08.
n48. Id. at 307-16.
n49. See id.
n50. See id.
n51. See generally Taslitz, Patriarchal Stories, supra note 1 (illustrating various ways in which
the law in action consists of cultural narratives more than the rules laid down in texts);
Taslitz, Rape and Culture, supra note 2.
39
n52. See, e.g., Helen Weinreich-Haste, The Sexual Metaphor 23 (1993) ("Man to the field,
and woman to the hearth, Man to the sword, and to the needle she, Man with the head,
woman with the heart, Man to command and woman to obey. All else confusion."). See also
Timothy Beneke, Proving Manhood: Reflections on Men and Sexism 36, 41 (1997) (stating
that being a man means not being "feminine," that is, "resisting the impulse to 'go soft' and
empathize with or nurture those who are suffering or weaker....").
n53. See Larry May, Masculinity & Morality 22 (1998) [hereinafter May, Masculinity] (Men's
"traditional image [is] of being in control of their emotions."); accord Beneke, supra note 52,
at 47. (At its most extreme, compulsive masculinity means, "men should not feel or express
vulnerable or sensitive emotions; the manly emotions are lust and anger."). Note that anger
is the one exception other than lust to the image of the emotionless male, but even in "cases
of anger, some men seem nearly out of control. In cases of sexual desire, it is thought to be
literally true that some men cannot act otherwise than in line with their raging hormones."
May, Masculinity, supra, at 12. I am not suggesting, however, that any of the images
discussed in this article are monolithic. There are always dissenting and competing cultural
images to the dominant ones, thus potentially creating the seeds for change. See generally
Michael Kimmel, Manhood in America: A Cultural History (1996).
n54. See May, Masculinity, supra note 53, at 12. May goes on to explain that even when male
sexuality is not portrayed as literally uncontrollable, it is nevertheless a force that is very
hard to resist. See id. He thus notes that "even when this thesis is watered down, it is often
thought that men, much more than women, have great difficulty controlling their sexual
urges because of their hormones, and that as a result men should not be morally blamed for
at least some of their acts of sexual aggression." See id.
n55. See, e.g., Randy Thornhill & Nancy Wilmsen Thornhill, The Evolutionary Psychology of
Men's Coercive Sexuality, 15 Behav. and Brain Sci. 363, 363 (1992) ("Sexual coercion by
men reflects a sex-specific, species-typical psychological adaptation to rape: Men have
certain psychological traits that evolved by natural selection specifically in the context of
coercive sex and made rape adaptive during human evolution.").
n56. See May, Masculinity, supra note 53, at 8-23, 79-97.
n57. See Taslitz, Patriarchal Stories, supra note 1, at 448-53 (regarding bullying).
n58. See, e.g., May, Masculinity, supra note 53, at 44 ("The thing that seemed clearest to us
growing up Catholic was that our male sexuality was portrayed as nearly uncontrollable....We
were urged to repress our sexual urges ....The key was for the priest to use the powers of the
confessional to overcome so-called bad habits."); Sharon Lamb, The Trouble with Blame:
Victims, Perpetrators & Responsibility 13-14 (1996) (defining shame as a method of social
control).
n59. See Kimmel, supra note 53, at 261-336.
n60. See infra text accompanying notes 136-62. I am not suggesting that the gendered view
of sexual desire articulated here is universal across time and cultures. Western culture has in
other periods, for example, portrayed women as less sexually restrained than is true today.
See, e.g., Peggy Reeves Sanday, A Woman Scorned: Acquaintance Rape on Trial 66-81
(1996).
n61. See infra text accompanying notes 136-66.
n62. See infra text accompanying notes 136-66. The model described here is for women in
dating relationships, dating as a way to search for a more enduring romantic relationship.
When women date for recreational sex, we do indeed see them as motivated by concerns
other than care, but we view them disdainfully, as they should (and at some level do) know
better. See infra text accompanying notes 136-66.
40
n63. See infra text accompanying notes 136-66.
n64. See infra text accompanying notes 136-66.
n65. See, e.g., Sanday, supra note 60, at 22 ("today's blame-the-victim attitude derives from
the twin notions that women are sexually stimulated by force and that male sexual
aggression is primarily biological."). I do not entirely agree with Sanday's assessment in the
date rape context, where we often expect a "good" woman's desire to be stoked by male
expressions of care and consideration for the woman's well-being. See infra text
accompanying notes 136-66. But even if Sanday is right, she has articulated an evaluative
view of the emotions for women (stimulated by male aggression) but not men (stimulated by
biology).
n66. See Taslitz, Patriarchal Stories, supra note 1, at 460 (explaining that society views
equivocation by a woman as seduction, not rape).
n67. See, e.g., Sanday, supra note 60, at 99 (describing the "dualism" of American
womanhood); Leonora Tanenbaum, Slut! Growing up Female with a Bad Reputation (1999)
(describing recent analysis of the power of the "slut" label to control female behavior and
social options); Taslitz, Patriarchal Stories, supra note 1, at 457-60 (describing the dominant
cultural tendency to view black women as unrapable whores).
n68. See infra text accompanying notes 73-196.
n69. Camille Paglia is perhaps the best-known and most explicit purveyor of this attitude.
"Masculinity is aggressive, unstable, combustible," she writes. Camille Paglia, Sex, Art, and
American Culture 53 (1992). Their biological urge toward sexual aggression cannot, she says,
be controlled. See id. at 59. "Stay home," she advises teenage girls, "if you can't handle
[date rape]," and "if you're drunk, [you're] complicitous." Id. To Paglia, then, "hormones rule
male sexual behavior....Since a man can't help himself, she holds, it's up to the woman to
look out for herself. The implication is that women who are in the wrong place at the wrong
time have it coming." Sanday, supra note 60, at 22. See also Duncan Kennedy, Sexual
Abuse, Sexy Dressing, and the Eroticization of Domination, in Sexy Dressing, Etc.: Essays on
the Power and Politics of Cultural Identity 126-213 (1993) (on the cultural meaning of "sexy
dressing").
n70. See Panel on Research on Violence Against Women, National Research Council,
Understanding Violence Against Women 38 (1996) ("Research consistently shows, however,
that women often do not define experiences that meet the legal definition of rape as rape
...). See also Colleen A. Ward, Attitudes toward rape: Feminist and Social Psychological
Perspectives 124-28 (1995) (on victim self-blame).
n71. See, e.g., Sanday, supra note 60, at 19-24, 138, 237-38, 265 (arguing that older
conceptions of women having a voracious sexual appetite continue to be part of the images
that have a hold on our sexual imaginations). But, as I think she would agree, in the modern
world that imagined appetite is seen as whetted by women's cognitive understandings of
money, power, trust, loyalty, and, relationship, and where not, it is because women have
failed in their sexual responsibilities. See infra text accompanying notes 120-196.
n72. See Genesis 19:1-36. See also Jonathan Kirsch, The Harlot by the Side of the Road:
Forbidden Tales of the Bible (1997) (embellishing on the original Bible text to convey the
text's meaning to modern audiences).
n73. Genesis 19:31-32.
n74. See Genesis 19:33-38.
n75. See, e.g., Genesis 38:1-26 (recounting the story of Tamar and Judah); Kirsch, supra
note 72, at 100-23 (1997)(recounting the story in modern terms). Judah unknowingly had
41
sex with his son's widow, who had tricked him by dressing as a prostitute with a veil over her
face. While Judah was not entirely to blame for his male lust, commentators explain that
Tamar too felt desire during the sexual act. See Kirsch, supra, at 115. Tamar's lust was for
the identity, social status, and livelihood that would come from bearing a child and becoming
part of Judah's household. See id. at 136-139. Conversely, Judah's lust was for a woman he
did not know, a body with a face he could not see. Judah's blame was not for his lust, but for
his abuse of power and rejection of Biblical law. Tamar was responsible for her rational lust,
but forgiven only because of Judah's political abuses.
n76. See Genesis 39:7-21.
n77. When Joseph refused Potiphar's wife's advances, Joseph said to her:
With me in charge...my master does not concern himself with anything in the house;
everything he owns he has entrusted to my care. No one is greater in this house than I am.
My master has withheld nothing from me except you, because you are his wife. How then
could I do such a wicked thing and sin against God?
Genesis 39:8-9.
n78. See Genesis 39:20-23 ("But even while he was in prison, the Lord remained with
Joseph; he showed him kindness by making the chief jailer well-disposed toward him ... and
brought success to all he did.").
n79. See Susan Brownmiller, Against Our Will: Men, Women, and Rape 12-15 (1975) (on the
cultural significance of the tale of Potiphar's wife).
n80. See Judges 16:4-5.
n81. See Judges 16:5.
n82. See Judges 16:16-18.
n83. See Kirsch, supra note 72, at 58, 243. Kirsch notes that even where the Bible suggests
that women were "raped," they are often blamed for provoking the rapist, and the
rape/seduction line is presented as an ambiguous one. See id. at 58, 78-99 (discussing the
rape of Jacob's daughter, Dinah).
n84. See id. at 243.
n85. See generally Sanday, supra note 60 (recounting much of the history in this section).
n86. Julia Cherry Spruill, Women's Life and Work in the Southern Colonies 174 (1969).
n87. Sanday, supra note 60, at 85.
n88. Id. at 87.
n89. See id. at 88-90.
n90. See id.
n91. Thomas Laquer, Making Sex: Body and Gender From the Greeks to Freud 150 (1990).
n92. Sanday, supra note 60, at 89.
42
n93. Id. at 90.
n94. See id.
n95. Id.
n96. See id. at 90-99.
n97. See id. at 19-24, 91-99.
n98. See id. at 82-99 (describing historical roots of the ideas that women "ask for it" and "no
means yes").
n99. Sir Matthew Hale, The History of the Pleas of the Crown 634 (George Wilson ed., 1800)
(1678).
n100. See Sanday, supra note 60, at 91.
n101. See id. at 91-93.
n102. See generally Cassia Spohn & Julie Horney, Rape Law Reform: A Grassroots Revolution
and Its Impact (1992) (describing rape law reform's history and its failures); Taslitz,
Patriarchal Stories, supra note 1 (explaining why reform failed). In one study of late
eighteenth and early nineteenth century rape cases in New York County, the author found
that men viewed "violent pursuit as entirely compatible with amiable seduction" and did not
consider the woman's consent essential to their sexual activity. Marybeth Hamilton Arnold,
"The Life of a Citizen in the Hands of a Woman": Sexual Assault in New York City, 1790 to
1820, in Passion and Power: Sexuality in History 39 (Kathy Peiss & Christina Simmons eds.,
1989). Guilty verdicts came about only if the men were "despicable cads, unfit for citizenship"
and the women showed "extreme helplessness and dependence on upstanding male citizens."
Sanday, supra note 60, at 93. Conviction was virtually impossible if the man was of a higher
social status than the woman. See id. at 93-97. Again, these are persistent themes in modern
trials.
n103. See Sanday, supra note 60, at 100.
n104. See Id. at 100.
n105. Id. at 100-01 (quoting Barbara Welter, The Cult of True Womanhood: 1820-1860, 18
Am. Q. 313-15 (1966)).
n106. Sanday, supra note 60, at 101.
n107. See id. at 101.
n108. See id. at 101-02.
n109. See id. at 108-12.
n110. See id. at 112.
n111. Arnold, supra note 102, at 39.
n112. Id.
n113. See Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological
Character Evidence, 52 Md. L. Rev. 1, 14-15 (1993) [herinafter Taslitz, Myself Alone].
43
n114. See supra text accompanying notes 23-51 (explaining connection of evaluative and
mechanistic views of the emotions to moral and criminal responsibility).
n115. See supra text accompanying notes 103-06.
n116. See Sanday, supra note 60, at 102-03. True prostitutes, of course, viewed sex in a
very rational way. That is, it was viewed as a business, with the choice of partners being
made based upon price, not passion, a view more consistent with the rational evaluative view
of emotions. Under this characterization, if prostitutes felt any sexual desire, it was linked to
a calculated search for material reward rather than the result of uncontrollable bodily need.
n117. Timothy J. Gilfoyle, City of Eros: New York City, Prostitution, and the
Commercialization of Sex, 1790-1920, at 99 (1992).
n118. See Sanday, supra note 60, at 103.
n119. Id. at 103-04. If the sporting male culture pretended to divorce sex from emotion, it in
fact laid the groundwork for portraying male desire mechanistically, and male sexual
emotions as ungovernable bodily urges sweeping the most ordinary of men into violence. See
id.
n120. Id. at 121.
n121. Id. at 125.
n122. Id.
n123. Id.
n124. Id. at 126.
n125. See id. at 127-28.
n126. Id. at 127-28.
n127. See id. at 129-39.
n128. Sigmund Freud, Three Essays on the Theory of Sexuality 23-24 (James Strachey
trans., Basic Books 1975) (1962).
n129. See Sanday, supra note 60, at 129.
n130. Sigmund Freud, Psychopathology of Everyday Life 202 n.1 (A.A. Brill trans., New
American Library 1951) (1914).
n131. See id.; Taslitz, Patriarchal Stories, supra note 1, at 461 (interpreting and responding
to counter-interpretations of Freud on this point).
n132. See, e.g., Sanday, supra note 60, at 133-34; Brownmiller, supra note 79, at 192;
Susan Edwards, Female Sexuality and the Law 100-08 (1981).
n133. See infra text accompanying notes 136-66.
n134. Sanday, supra note 60, at 138-39. While Sanday's quote here appears in a chapter
covering the ideas of acquaintance rape in the late nineteenth and early twentieth centuries,
she makes clear that these ideas "shaped the way Americans thought about rape in the
twentieth century." Id. at 138. After discussing views of rape in the late nineteenth and early
twentieth centuries, Sanday then embarks on a whirlwind tour of views of rape through the
1950s. See id. at 140-60.
44
n135. See generally Ida M. Johnson & Robert T. Sigler, Forced Sexual Intercourse in Intimate
Relationships (1997).
n136. See id. at 122-23.
n137. See id. at 123-30.
n138. See id.
n139. Id. at 123.
n140. See id. at 123-30.
n141. Id. at 123.
n142. See id.
n143. See id.
n144. See id.
n145. Id. at 123-24.
n146. See id. This model of female responsibility for her own desire and for igniting male
desire is supported by a wealth of social science research on rape generally (as opposed to
"date rape," which was essentially the topic of the Johnson and Sigler study). For example,
such research shows that arguments that the woman provoked the rape, that her ambiguous
behavior suggested her sexual desire, and that she, or she and he, consumed alcohol,
decrease the probability that people will find that there was a rape. See Taslitz, Patriarchal
Stories, supra note 1, at 469. Moreover, while many people see attractive victims as more
seductive, people also see less attractive victims as more blameworthy, perhaps because of
the perception that unattractive women must have "wanted it" or because they "couldn't get
it elsewhere." Id. "Even normal behaviors (e.g., visiting a bar) [are] often perceived as
provocative, while merely careless behaviors, like hitch-hiking and not locking your car, also
lead to greater attributions of victim responsibility." Id.
n147. See Johnson & Sigler, supra note 135, at 124-25.
n148. See id.
n149. See id. at 125 (noting that her values might permit some lesser degree of sexual
intimacy).
n150. See id.
n151. See id. at 124-26.
n152. See id. at 126.
n153. Id.
n154. Id.
n155. See id. at 126-27.
n156. See id. at 79-80. Some studies dichotomize the relationship into stranger-versusacquaintance categories, but others offered more of a range of options. See id. Some studies
seek subjects' characterization of a scenario as date-rape, rape, or no-rape, while others
45
seek to grade the relative severity of punishment for various scenarios. See id. But all the
studies converge on this conclusion: "The degree to which the victim and the offender are
intimately involved prior to the assault appears to be a pervasive factor in the willingness of
subjects to label forced sexual intercourse as rape and in the degree of sanctions which
subjects are willing to impose." Id. at 89. This observation does have limits. One study, for
example, concluded that subjects were willing to treat a "date rape" as rape and
significantly punish the offender where the subjects were told to assume that the offender
"suddenly reaches out and began kissing her. He tells her that if she screams or resists he
will kill her. He then forces her to have sex." Paul H. Robinson & John M. Darley, Justice,
Liability & Blame: Community Views and the Criminal Law 160-69, 271 (1995).
n157. See Johnson & Sigler, supra note 135, at 81.
n158. See id. at 81-89.
n159. See id. at 89-96.
n160. See id. at 90-92; Taslitz, Patriarchal Stories, supra note 1, at 468-71 (explaining why
these conclusions are even more likely to be accurate at a real rape trial than in an
experimental, field, clinical, or statistical study).
n161. See Johnson & Sigler, supra note 135, at 93.
n162. See id. at 95-96.
n163. Alan Hyde, Bodies of Law 180 (1997).
n164. In this context, Hyde seems to use "person," "mind," and "self" interchangeably, so I
do so here as well. See id. at 181, 183.
n165. 1 W.L.R. 317 (1955).
n166. See Meir Dan-Cohen, Responsibility and the Boundaries of the Self, 105 Harv. L. Rev.
959, 991-92 (1992).
n167. See id. at 991-92.
n168. Id. at 992.
n169. See generally Taslitz, Patriarchal Stories, supra note 1 (illustrating this point).
n170. See, e.g., Michel de Montaigne, On Practice, in The Essays of Michel De Montaigne 422
(M.A. Screech trans., 1991) ("Every man knows from his own experience that he has a part
of his body which often stirs, erects, and lies down again without his leave. Now such passive
movements which only touch our outside cannot be called ours."). What Montaigne wrote
reflects a popular American view today, our vocabulary being rich in language (for example,
"He thinks with his dick") that attributes agency to the male sexual organ rather than to the
male mind or character. See Hyde, supra note 163, at 183.
n171. Hyde, supra note 163, at 184.
n172. Id. (emphasis in original).
n173. Id. at 185.
n174. See Schulhofer, supra note 4, at 1-20, 33-46, 52-60, 74-81, 88-98.
n175. See Taslitz, Patriarchal Stories, supra note 1, at 421-24.
46
n176. See id.
n177. See id.
n178. See id.
n179. See id. at 448-53.
n180. See id. at 423.
n181. See id.; Model Penal Code 2.02 (defining various criminally culpable mental states).
n182. See Taslitz, Patriarchal Stories, supra note 1, at 423.
n183. See id.
n184. See supra note 8 and accompanying text.
n185. See supra notes 24-166 and accompanying text.
n186. See, e.g., Robert P. Mosteller, Syndromes and Politics in Criminal Trials and Evidence
Law, 46 Duke L.J. 461, 487-90 (1996). See generally Taslitz, Feminist Approach, supra note
31.
n187. See Schulhofer, supra note 4, at 59-68, 259-60 (discussing studies in which women
conceded that sometimes their "no" was in fact intended to mean "yes", "maybe", or "keep
trying and we'll see").
n188. See Taslitz, Patriarchal Stories, supra note 1, at 469.
n189. See Schulhofer, supra note 4, at 8-9, 263-64.
n190. See supra text accompanying notes 74-166.
n191. See Taslitz, Patriarchal Stories, supra note 1, at 423-24.
n192. See id.
n193. See id. at 422-24.
n194. See Schulhofer, supra note 4, at 12-16, 59-81, 254-71.
n195. See Dressler, supra note 4, at 545-47; Schulhofer, supra note 4, at 258-60.
n196. See Taslitz, Patriarchal Stories, supra note 1, at 424.
n197. See Kahan & Nussbaum, supra note 23, at 276 n.14 (noting debate on whether sexual
desire is an emotion).
n198. See Richard A. Posner, Sex and Reason (1992).
n199. Id. at 13.
n200. See id. at 3. ("One is the cost of search. It is zero for masturbation, considered as a
solitary activity, which is why it is the cheapest of practices. (The qualification is important:
'mutual masturbation,' heterosexual or homosexual, is a form of nonvaginal intercourse, and
its search costs are positive)."). See also Roger Scruton, An Intelligent Person's Guide to
Philosophy 127-39 (1998) [hereinafter Scruton, Intelligent Guide] (offering similar analyses
to those here of Posner's work and of the nature of sexual desire and noting that, for Posner,
47
"the sexual sacrament gives way to a sexual market; and the result is a fetishism of the
sexual commodity."). For a detailed analysis of the nature of sexual desire as a cognitive
activity and a response to counter-views, see Roger Scruton, Sexual Desire: A Moral
Philosophy of the Erotic (1986).
n201. Scruton, Intelligent Guide, supra note 200, at 135. I am not saying that men are not
sexually stimulated by animals or rubber dolls. Some are. The point is that the quality of
sexual desire is determined by thoughts. Desire for a rubber doll is not the same as desire for
a person, nor is desire for one person the same as desire for another. Our perception of the
nature of dolls and individuals affects the nature of our desire for them. Moreover, when a
man uses a rubber doll to attain physical release, he likely does so by fantasizing about a
particular person as his partner.
n202. Id. at 127-28 (quoting Freud). The science of socio-biology and its offspring,
evolutionary psychology, seem to offer a modern justification for Freud's reduction of much
sex to biology. As this article neared press, a controversial new book drawing on sociobiological roots, Randy Thornhill & Craig T. Palmer, A Natural History of Rape: Biological
Bases of Sexual Coercion (2000), was published. The authors' central thesis is that there
were evolutionary pressures creating in men a biological urge to, or at least willingness to,
rape. The idea in part is that women make an enormous investment in child-bearing and
rearing (for example, nine months of pregnancy) while men do not. Women thus have an
incentive to choose mates carefully for reproduction to be successful. But men have an
incentive to have sex with many partners to maximize male reproductive achievement.
Because many women will be choosy, while men will not, men often have to resort to rape to
achieve the goal of spreading their semen widely. Thornhill and Palmer cite a wide variety of
evidence, including insect and animal behavior, but also such evidence as a higher
percentage of reported rape victims being young (and thus presumably fertile). Furthermore,
many of their conclusions regarding solutions embody the mechanistic idea of male sexual
emotions: ensure that men are fully aware of the severe penalties for rape and counsel
women to avoid wearing clothes that incite male sexual aggression and to avoid being in
place that render women vulnerable to attack. Thornhill and Palmer's study, however, has
been criticized as scientifically flawed. See, e.g., Rape Theory Attacked, Evolutionary Basis
Disputed, Cincinnati Post, Mar. 9, 2000, at 3A (stating that the finding lacked evidentiary
support, presented finding in a misleading way, and failed to recognize alternative
explanations). Similarly, the methods of sociology and evolutionary biology have been
subjected to extensive criticism. See e.g., Carol Tavris, The Mismeasure of Woman, in The
Gendered Society Reader 20-36 (Michael S. Kimmel & Amy Aronson eds., 2000)(challenging
the usefulness of evolutionary psychology in understanding rape). Yet even Thornhill and
Palmer concede that socialization can have an enormous impact on males' understanding of
sexuality and willingness to rape. See Thornhill & Palmer, supra, at 169-77. Both society's
moral traditions and a father's teachings to his son, they agree, can alter how a growing boy
comes to interpret the sexual world. See id. at 176-77. Moreover, they recommend educating
males about the supposed evolutionary roots of their desires and about why they "may
mistake a woman's friendly comment or her tight blouse as an invitation to have sex when
sex is in fact the last thing on her mind." Id. at 179. While their educational program stresses
suppression of male desire, their seeming willingness to recognize that improved male-female
communication can alter the all-consuming nature of male desire hints at something other
than a mechanistic view of male sexual emotions. Additionally, they seem to suggest
significant male responsibility for mistakes stemming from miscommunication. See id. at 17980. Their emphasis on male sexual needs as powerful biological forces suggests that their
book will have the likely effect of contributing to the entrenchment of our culture's dominant
mechanistic vision of male sexuality.
n203. Scruton, Intelligent Guide, supra note 200, at 128.
n204. See Patricia J. Falk, Rape by Fraud and Rape by Coercion, 64 Brook. L. Rev. 39, 6567.
n205. I am relying for this plot summary on my own recent re-viewing of The Crying Game
48
on videocassette.
n206. See Scruton, Intelligent Guide, supra note 200, at 130.
n207. Id. at 132 (summarizing the story of Jacob, who worked for years for Laban in the
hope of receiving Laban's younger daughter, Rachel, in marriage, only to find later that the
veiled woman with whom he slept on his wedding night was not Rachel but her older sister
Leah).
n208. I am not denying that many men are sexually stimulated by generic body parts, with
particular preferences differing for particular men, perhaps long legs for one man, large
breasts for another. Yet the purported male quest for variety by definition stems from a belief
that each woman is at least physically unique from other women. But most men whom I
know do not stay stimulated by commodified body parts alone. These men find their desire
fading as they get to know and dislike a woman whom they previously thought attractive,
their desire growing as they get to know and like a woman toward whom they were
previously physically indifferent. Even the initial reaction of some males to generic body
parts, however, stems from learned notions of what "real men" and women think and look
like. Professor Sanday explains:
My research and that of psychologists and sociologists demonstrate that human sexual
behavior cannot be divorced from the larger system of beliefs, values, and attitudes - what I
call the sexual culture - that I suggest motivates our response to rape in the courtroom. As
Susan Brownmiller shows in her landmark study, Against Our Will, sexual behavior cannot be
separated from male dominance and the American culture of violence. The backlash
discernible in response to each gain of greater sexual autonomy by women during the course
of American history demonstrates that males have enforced dominance through increasingly
aggressive definitions of male sexuality. To maintain a belief in the exclusively biological (or
natural) determinism of sexual behavior, against which society or the law is powerless, is
itself part of the politics of male sexual dominance.
Sanday, supra note 60, at 26.
n209. A. Nicholas Groth, Men Who Rape: The Psychology of the Offender 60 (1979).
n210. James Baldwin, The Black Boy Looks at the White Boy, in Smiling Through the
Apocalypse, Esquire's History of the Sixties 850, 851 (Harold Hayes ed., 1969).
n211. Calvin C. Hernton, Sex and Racism in America 116 (1965). Hernton's book traces in
detail the white American obsession with black sexuality, stating that the image of blacks as
savages is learned through "jokes, anecdotes... mores and folklore." Id. I have discussed
these cultural images of both black male and female sexuality before, but for the very
different purpose of recommending changes in our modes for examining rape victims rather
than, as here, in the substantive definition of rape. See Taslitz, Patriarchal Stories, supra
note 1, at 453-60.
n212. Lynne Segal, Slow Motion: Changing Masculinities, Changing Men 176 (1990).
n213. Id.
n214. See id.
n215. See, e.g., Paul M. Sniderman & Thomas Piazza, The Scar of Race (1993) (reporting the
results of a recent survey about racial attitudes and myths); Taslitz, Patriarchal Stories, supra
note 1, at 466-68.
49
n216. See generally Laurence E. Alan Baughman, Southern Rape Complex : A Hundred Year
Psychosis (1966); Joseph Conrad, Heart of Darkness and Other Tales 186 (1998) (describing
black Africans thus: "They howled and leaped, and spun, and made horrid faces; but what
thrilled you was just the thought of their humanity" like yours "the thought of your remote
kinship with this wild and passionate uproar. Ugly."); Segal, supra note 212, at 176-78.
n217. See, e.g., Segal, supra note 212, at 177-78 (stating that fear of black sexuality was
often a primary motivation for brutalizing black males during the era of lynching). See
generally Hernton, supra note 211. Literal castration often accompanied lynchings, making
the Southern obsession overt. See Segal, supra note 212, at 177-78.
n218. See generally James Goodman, Stories of Scottsboro (1994). In the Scottsboro case,
two white women found alone on a train with nine black teenage males pursued the story of
rape. See id. at xi. One of the two women later admitted that the rape story was a lie and all
the defendants were ultimately released, but only after years in jail, numerous appeals, and
three Supreme Court opinions. See id.; Jennifer Wriggins, Rape, Racism, and the Law, in
Rape and Society: Readings on the Problem of Sexual Assault 217 (Patricia Searles & Ronald
J. Berger eds., 1995). The Southern obsession also manifested itself in special rules allowing
the jury to consider the respective races of the defendant and the victim in deciding what a
defendant intended in attempted rape cases. See Wriggins, supra, at 217-218. A black
defendant/white victim combination alone entitled a jury in some courts to draw the inference
beyond a reasonable doubt that the defendant intended rape. See id. This instruction was
based on the assumption that black males "always and only" want to rape white women. Id.
n219. See, e.g., Helen Benedict, Virgin or Vamp: How the Press Covers Sex Crimes 202-08,
213-15 (1992) (concerning press's willingness to "broadstroke all black men as a wolf pack
and wilding animals"); Michael Eric Dyson, Reflecting Black: African-American Cultural
Criticism 173-78 (1993) (summarizing modern news media's presentation of black males as
bullies and animals); William Styron, The Confessions of Nat Turner 173 (1967) (portraying
the religious zealot and antislavery rebel as a "sexual pervert" driven by his obsession with
"beautiful white girls with golden curls").
n220. Norman Mailer, The White Negro, in Protest 304 (1960). See also Segal, supra note
212, at 178-80 (noting Jack Kerouac also wrote wistfully and romantically of black sexuality).
n221. Rose L. H. Finkenstaedt, Face to Face, Blacks in America: White Perceptions and Black
Realities 159 (1994).
n222. See, e.g., National Research Council, supra note 70, at 40, 146-47 (noting limited
research on violence against women of color and inadequate training of researchers
concerning racially and ethnically diverse populations).
n223. See Gary D. LaFree, Rape and Criminal Justice: The Social Construction of Sexual
Assault 53 (1989).
n224. See National Research Council, supra note 70, at 129 (relying exclusively on LaFree's
study to illuminate disparate sentencing trends for sexual assault crimes based on race of
offenders and victims).
n225. LaFree, supra note 223, at 139-40.
n226. Id. at 140.
n227. Id.
n228. Id. at 140-41.
n229. See id. at 140-47.
50
n230. See id. at 143-44.
n231. See id. ("I suspect that part of the reason for the identification defense in the Charles
Jackson case was the important but unstated fact that jurors would have been unlikely to
believe that Brighton, a white woman, had been having an ongoing relationship with Jackson,
a black man. My guess is that the defense implicitly recognized the fact that because
interracial courtship and marriage are relatively uncommon, jurors would be less likely to
accept a consent defense as plausible in the BW case.").
n232. See id. at 140-47.
n233. See id. at 129-40.
n234. See id. at 154-55.
n235. Id. at 219. LaFree notes that, in his study of jury verdicts, he experimented with using
a measure of the race composition of the victim-offender dyad rather than just measures of
victim and offender race independently. See id. at 219-20 n.*. However, analysis of this data
revealed that the victim's race was a more important determinant than the race composition
of the victim-offender dyad. See id.
n236. Id. at 219-20.
n237. I have found that there are even fewer studies of the impact of race on rape trials
involving minorities other than African Americans. Moreover, surveying all races' significance
would unduly lengthen this article. The disproportionate percentage of rape victims who are
African American, the greater availability of data concerning African Americans, relative to
other groups, and the especially visible role that White images of Black sexuality and
criminality have played in America make them a particularly useful group for which to model
the significance of race for my theory. If the two concepts of the emotions still prove useful in
understanding rape cases involving African Americans, then the two concepts should be
equally useful in illuminating the role of other races.
n238. There is a complication here. Both LaFree's and other data suggest that any male,
White or Black, is even less responsible for rape than usual when the victim is Black. See
infra notes 243, 249 and supra text accompanying notes 225-36. But LaFree's statistical data
purports to show that Black males are held more responsible than White males when the
victim is White. See LaFree, supra note 223, at 139-40. That Black male responsibility thus
varies with the race of the victim supports the idea that race, not just sex, explains the
results. See id.
n239. See, e.g., Taslitz, Patriarchial Stories, supra note 1, at 466-71. See generally
Finkenstaedt, supra note 221.
n240. See generally Jody David Armour, Negrophobia and Reasonable Racism: The Hidden
Costs of Being Black in America (1997) (discussing that much racism is subconscious, the
result of culturally-engrained habit, metaphor, and other less-than-conscious reasoning
processes, but conscious or not, something akin to fears of Black racial insubordination can
still be at work).
n241. See generally Eldridge Cleaver, Soul on Ice (1968). Cleaver's call merely tracked
Herbert Aptheker's recognition of the political function of the reverse situation - White men
raping Black women - "for it was Aptheker's thesis that the White man imposed a special
burden of humiliation and oppression on the Black woman by forcing her to submit to his
sexual will." Brownmiller, supra note 79, at 211. Cleaver sought to impose this same
humiliation on the White race, evening the score. See id. at 248-252.
n242. Cleaver, supra note 241, at 14.
51
n243. See LaFree, supra note 223, at 129 (summarizing racial composition of his sample);
Donal E. J. MacNamara & Edward Sagarin, Sex, Crime, and the Law 48 (1971) ("In most
rapes, perpetrator and victim are of the same racial group").
n244. Brownmiller, supra note 79, at 237-38.
n245. Id. at 244.
n246. See Finkenstaedt, supra note 221, at 158; Hernton, supra note 211 (tracing in detail
the White American obsession with Black sexuality, primarily in the South, but in the North as
well). See also Orlando Patterson, Rituals of Blood: Consequences of Slavery in Two American
Centuries 171-218 (1998) (conceding legitimacy to the fear of Black male sexuality as a
cause of lynching, but arguing that a ritualistic, neo-religious purging of Black "uppitiness" in
general was also involved).
n247. See, e.g., Randall Kennedy, Race, Crime, and the Law 88-90, 100-04 (1997)
(discussing examples); cf. Thomas D. Morris, Southern Slavery and the Law 1619-1860, 30321 (1996) (discussing differential legal treatment of sexual violence by slaves and masters).
n248. See generally Finkenstaedt, supra note 221.
n249. See, e.g., Comment, Police Discretion and the Judgment that a Crime Has Been
Committed - Rape in Philadelphia, 117 U. Pa. L. Rev. 277, 322 (1968) (discussing a 1968
study of Philadelphia police rape arrest practices which discovered racial disparity resulting
"primarily from a lack of confidence in the veracity of Black complainants and a belief in the
myth of Black promiscuity"); Wriggins, supra note 218, at 221 (summarizing study in which
"white jurors imposed significantly lighter sentences on defendants whose victims were Black
than on defendants whose victims were white"). Furthermore, LaFree's data is buttressed by
a mock jury experiment, enabling the experimenter to control variables that LaFree could not
in his analysis of real-world cases. There, the experimenters had subjects, of whom half were
Black and half were White, view a videotape of a judge and defense attorney chatting with
the Black defendant at the start of the trial. The subjects were then given written summaries
of prosecution and defense arguments in the trial. All subjects were told that the victim was
13 years old, but half were told she was Black and half were told she was White. Sixty-five
percent of White mock jurors voted to convict when the victim was White but only thirty-two
percent would do so when the victim was Black. Eighty percent of Black jurors voted to
convict when the victim was Black but only forty-eight percent would do so when the victim
was White. See Marina Miller & Jay Hewitt, Conviction of a Defendant as a Function of JurorVictim Racial Similarity, 105 J. Soc. Psychol. 159 (1978). See generally Sheri Lynn Johnson,
Black Innocence and the White Jury, 83 Mich. L. Rev. 1611 (1985) (summarizing empirical
data on racism among White juries). The implications of this racial disparity are particularly
distressing because Black women are much more likely to be victims of rape than are White
women. See Wriggins, supra note 218, at 221.
n250. See generally Wahneema Lubiano, Black Ladies, Welfare Queens, and State Minstrels:
Ideological Warfare by Narrative Means, in Racing Justice, Engendering Power: Essays on
Anita Hill, Clarence Thomas, and the Construction of Social Reality 323-30 (Toni Morrison ed.,
1992) [herinafter Racing Justice].
n251. Nell Irvin Painter, Hill, Thomas, and the Use of Racial Stereotype, in Racing Justice,
supra note 250, at 210.
n252. See id.
n253. Hernton, supra note 211, at 95-96, 124-33.
n254. Id. at 95.
52
n255. Painter, supra note 251, at 210.
n256. Chester Himes, Black on Black: Baby Sister and Selected Writings 129 (1973).
n257. See Nancy M. Tischler, Black Masks: Negro Characters in Modern Southern Fiction 65
(1969).
n258. See Taslitz, Patriarchal Stories, supra note 1 at 394-433.
n259. See id. at 402-04.
n260. See id. at 408.
n261. See Taslitz, Rape and Culture, supra note 2, at 137-45; Andrew E. Taslitz, What
Feminism Has to Offer Evidence Law, 28 Sw. U. L. Rev. 171, 179 (1999) [hereinafter Taslitz,
What Feminism] (stating that law is an instrument that alters incentives for people to behave
one way or another).
n262. See Pineau, Response to Critics, supra note 7, at 100-01.
n263. See Wells, supra note 9, at 44-48.
n264. See Taslitz, What Feminism, supra note 261, at 177.
n265. See generally Taslitz, Patriarchal Stories, supra note 1.
n266. Compare Kahan and Nussbaum, supra note 23 with infra Part III.
n267. See infra Part III.
n268. See Wells, supra note 9, at 43-45 (suggesting that, by focusing solely on the woman's
point of view, Pineau makes rape a strict liability crime); Harris & Pineau, A Dialogue on
Evidence, supra note 9, at 116 (suggesting that Pineau's proposal creates a strict liability
offense).
n269. See Francis, supra note 4, at xvii (stating that while Pineau has now moved toward
strict liability, "her original article argued for re-understanding the reasonableness of the
man's belief in terms of the reasonableness of the woman's acquiescence, but not abandoning
a reasonable belief inquiry altogether.").
n270. See Dressler, supra note 4, at 127-29.
n271. See id.
n272. See id.
n273. See Taslitz, Myself Alone, supra note 113, at 22 n.109.
n274. See Dressler, supra note 4, at 113-14.
n275. Id.
n276. See id.
n277. See generally Jeffrie G. Murphy & Jules L. Coleman, Philosophy of Law: An Introduction
to Jurisprudence 120-28 (1990) (explaining retributive constraints on utilitarianism); Kip
Schlegel, Just Desserts for Corporate Criminals 66-67, 74 (1990).
n278. See Dressler, supra note 4, at 113-14. There are, of course, many variations on the
53
theories offered here as to why strict and negligence liability are suspect, but these theories
can generally fit under the arguments outlined here in the text. See generally John L.
Diamond, The Myth of Morality and Fault in Criminal Law Doctrine, 34 Am. Crim. L. Rev. 111
(1996).
n279. See Kenneth W. Simons, When Is Strict Criminal Liability Just?, 87 J. Crim. L. &
Criminology 1075, 1085-93 (1997).
n280. Id. at 1092-1093.
n281. See id.
n282. Id. at 1093. Professor Stephen Schulhofer's proposed definition of "sexual abuse," a
felony of the third degree, can be illuminated by this distinction between formal and
substantive liability, as he would define this crime as committing an act of sexual penetration
when you "know" you do not have the other person's consent. See Schulhofer, supra note 4,
at 283. He defines "consent" as meaning that there were, at the time of sexual penetration,
"words or conduct indicating affirmative, freely given permission to the act ... " Id. He defines
"knowledge," however, to include "recklessness." Id. at 284. Furthermore, he would similarly
extend liability to criminally negligent unawareness by the perpetrator of the risk that he
acted without the woman's affirmative consent, though he would reduce that felony to one of
the fourth degree. See id. But this means that, where a woman has not given affirmative
permission, the man must actively seek it or face an abuse charge. He must presumably
engage in whatever communicative efforts are required to prompt behavior from the woman
that affirmatively indicates her consent. In substance, this seems little different from Pineau's
requirement that the man engage in reasonable communicative efforts.
If there is little apparent substantive difference between Schulhofer's proposal and Pineau's,
why prefer the latter? My answer is this: as we will see, I have re-visioned Pineau's concept
in a way that promotes the "sensitive personality." Only Pineau's proposal sends the message
that we value sensitivity and condemn insensitivity. My major concern is thus with punishing
evil character, while Schulhofer seeks only to protect female autonomy. Compare infra text
accompanying notes 292 - 420, with Schulhofer, supra note 4, at 99-113. Autonomy is,
however, another critical value, and Schulhofer does a superb job defending its relevance and
exploring its implications. He does not, however, fully explain what is to guide the jury's
"reasonable man" determination in deciding whether a suspect was "reasonable" (i.e., not
negligent) in being unaware of the risk that he lacked affirmative consent. My proposal can be
reconciled with his by using the "sensitive personality" definition of reasonableness. Either my
proposal, or his as so modified, would thus protect both autonomy and the character of the
citizenry. My proposal, using somewhat different language, also offers justifications
(gendered emotions and punishing evil character) for the affirmative consent idea that
Schulhofer did not explore.
n283. See sources cited supra notes 270-78 (focusing on actions rather than character).
n284. Harris, Forcible Rape, supra note 9, at 52-53.
n285. See infra text accompanying notes 287-350.
n286. See infra text accompanying notes 341-50. See also Schulhofer, supra note 4, at 84-86
(accusing Pineau of defining "reasonableness" as meaning that a woman's consent can stem
from certain approved motives, such as the woman's desire for sexual pleasure). My revisioning of Pineau's proposal, which judges reasonableness from the perspective of a
"sensitive person," rather than a "reasonable woman," avoids this problem. Liability turns not
on the propriety of the woman's desires but on whether the man showed the kind of
sensitivity about intimate sexual matters that we should expect from anyone, male or female.
See Pineau, Date Rape, supra note 4, at 25-26. My re-visioning does condemn one kind of
sex - non-communicative - as inconsistent with the sensitive personality and also rejects
claims that Pineau's proposal violates principles of fair notice because men are insufficiently
54
sensitive to understand women's needs. See Schulhofer, supra note 4, at 85-86 (making
similar claim). The character morality on which my re-visioning is based assumes that men
can and should learn such sensitivity.
n287. See Lawrie Reznek, Evil or Ill: Justifying the Insanity Defense 12-13, 41-60 (1997).
n288. See id. at 12-13, 42; Taslitz, Myself Alone, supra note 113, at 6-14.
n289. See Reznek, supra note 287, at 62-64.
n290. See id.
n291. See,e.g.,Dressler,supranote4,at225-35(discussingself-defensedoctrines).
n292. See Reznek, supra note 287, at 115-39.
n293. See id. at 115-16, 129-31. Reznek says that one justification for why we should punish
persons who cause harm is that they "deserve it," but "dessert," to a character retributivist,
turns on the kind of person you are. See id.
n294. See id. at 62-64, 66-68, 115-16.
n295. See id. at 13, 63.
n296. See id. at 66-68.
n297. See id. at 116-20. See also John Kekes, Facing Evil 93-102 (1990) (arguing that our
actions stem from the interaction of choice and character, that we most often act because of
our character rather than because of any choice about our circumstances, and that tradition
and education play a key role in molding our character).
n298. See Reznek, supra note 287, at 116-17, 131-33. Ultimately, however, Reznek argues
for a hybrid theory, mixing elements of both retributivism and utilitarianism. See id. at 11620. To character moralists, remember, evil character must be shown both by thoughts
(including emotions and attitudes) and acts. Justifications are thus defenses because, by
examining the moral circumstances surrounding the act, they show that the act was not evil;
excuses are defenses because they show that the agent's internal life was not evil. See id. at
42-44. "The best way to make sense of excuses is that these are features which show that
even though the person did a harmful thing, he is nonetheless a good character." Id. at 12.
n299. See, e.g., Reznek, supra note 287, at 141-42, 223-45 (recognizing a partial or
complete defense of "character change" on a showing that abnormal circumstances led us to
act out of character).
n300. See id. at 76, 92-93.
n301. See id. at 133-34, 223-27; Taslitz, Myself Alone, supra note 113, at 6-10, 64-81
(discussing the reliability of experimental data and clinical judgment as predictors of
character).
n302. See Reznek, supra note 287, at 62-64.
n303. See id. at 133-35 (offering other examples).
n304. See generally Kekes, supra note 297.
n305. See infra text accompanying notes 370-403.
n306. See Martha Grace Duncan, Romantic Outlaws, Beloved Prisons: The Unconscious
55
Meanings of Crime and Punishment 119-87 (1996).
n307. See Larry May, Sharing Responsibility 15-16, 70 (1996) [hereinafter May, Sharing
Responsibility].
n308. See id.; Reznek, supra note 287, at 43-45, 140-44.
n309. David Hume, An Enquiry Concerning Human Understanding, in Enquiries Concerning
the Human Understanding and Concerning the Principles and Morals 459 (L.A. Selby-Bigge
ed., 1962) (1902).
n310. See May, Sharing Responsibility, supra note 307, at 15-16, 62-63. See also Aristotle,
The Nichomachean Ethics of Aristotle 61 (W.D. Ross trans., Oxford Univ. Press 1925) ("While
no one blames those who are ugly by nature, we blame those who are so owing to want of
exercise and care.").
n311. See May, Sharing Responsibility, supra note 307, at 63-64 (calling this a "beknighting
act," one undertaken voluntarily in the past that helps mold our character, making a current
act not open to the agent).
n312. See id. at 63-70.
n313. See id.
n314. See id. at 70.
n315. Aristotle, supra note 310, at 92.
n316. See Kekes, supra note 297, at 7.
n317. See id. at 93-103.
n318. See id.
n319. See supra text accompanying notes 287-305.
n320. See supra text accompanying notes 23-40.
n321. See Kekes, supra note 297, at 3-4.
n322. See id. at 7-8.
n323. See id. at 7 ("People dominated by vices that regularly result in evil actions are
themselves evil.").
n324. See id. at 4 ("[A] lot of undeserved harm is caused by an almost casual, unthinking,
low-grade meanness.").
n325. See Colin McGinn, Ethics, Evil, and Fiction 62-63 (1997); cf. Reznek, supra note 287,
at 13 ("I ... define an evil person by his propensity to harm others in the pursuit of his own
selfish interests.").
n326. See, e.g., Reznek, supra note 287, at 61 (illustrating this point through the Morgan
case, even though it involved forcible rape, rather than date rape).
n327. Katharine K. Baker, Sex, Rape, and Shame, 79 B.U. L. Rev. 663, 670 [hereinafter
Baker, Sex, Rape, and Shame]. See also Katharine K. Baker, Once a Rapist: Motivational
Evidence and Relevancy in Rape Law, 110 Harv. L. Rev. 563, 597-612 (1997) [hereinafter
Baker, Once a Rapist] (concluding that some men rape to get sex; others rape to impress or
56
disgrace other men; some rape out of anger at their victim; other men rape because raping
is what they do to express their anger, fear, or frustration).
n328. Baker, Sex, Rape, and Shame, supra note 327, at 670.
n329. See id. at 670-72.
n330. See id. at 674; Taslitz, Patriarchal Stories, supra note 1, at 440-53, 460-65.
n331. See Taslitz, Patriarchal Stories, supra note 1, at 440-53, 460-65.
n332. See Model Penal Code 2.02(2)(c) (defining "recklessness" as conscious awareness of a
substantial and unjustifiable risk).
n333. See Taslitz, Patriarchal Stories, supra note 1, at 410-13.
n334. See supra text accompanying notes 279-83.
n335. See May, Sharing Responsibility, supra note 307, at 95-96.
n336. See id.
n337. See id.
n338. See id. at 95-97.
n339. See id.
n340. See id. at 95-98.
n341. See id. at 55-56.
n342. See id. at 56-61.
n343. See id. at 57. "Sensitivity" and "sympathy" differ, the latter being the capacity to be
affected by others' suffering. See id. at 58. "Sensitivity," by contrast, typically involves the
critical distance necessary to make a judgment about the moral legitimacy or worth of others'
wants and needs. See id. The idea of the "sensitive personality" has some commonalities with
the feminist ethic of care. See, e.g., Nel Noddings, Caring, in Justice and Care: Essential
Readings in Feminist Ethics 7, 18 (Virginia Held ed., 1995) ("We are not primarily interested
in judging but, rather, in heightening moral perception and sensitivity.")
n344. See May, Sharing Responsibility, supra note 307, at 55-64.
n345. See id. at 55-70.
n346. See Taslitz, Patriarchal Stories, supra note 1, at 410-433.
n347. See id. at 402-410, 422-424; Taslitz, Rape and Culture, supra note 2, at 134-48.
n348. See Kekes, supra note 297, at 75-76 (listing "expediency" - doing whatever is
necessary to achieve your goals, regardless of the impact on others - as a personality trait
particularly dangerous to others).
n349. See May, Sharing Responsibility, supra note 307, at 42-46 (stating that conduct that
raises the risk of harm is morally condemnable).
n350. See id. at 62-63, 67-70 (stating that attitudes of indifference can be conceived of as
akin to habits, and, while habits are hard to change, we can do so in many ways, such as
57
changing our environment, consciousness-raising, punishment, and psychotherapy).
n351. See McGinn, supra note 325, at 70-71.
n352. Id. at 71.
n353. See id. at 70-71 & n.5.
n354. See id.
n355. See generally Baker, Sex, Rape, and Shame, supra note 327, at 1-36. See also Taslitz,
Patriarchal Stories, supra note 1, at 448-53.
n356. See Taslitz, Patriarchal Stories, supra note 1, at 449-50.
n357. See id. at 448-53.
n358. See supra text accompanying notes 1-8 (following from my definition of "date rape" as
not involving "force" as that term is presently understood at rape trials).
n359. Of course, many current statutes define rape as potentially including "administering or
employing without her knowledge drugs, intoxicants or other means for the purpose of
preventing resistance." Model Penal Code 213.1 (1). When I refer in this article to the male's
tactic of administering alcohol, I am positing that he does so in the hope of, and with some
success at, reducing the woman's resistance without reaching the level of impairment
necessary for these portions of the rape statute.
n360. See Taslitz, Patriarchal Stories, supra note 1, at 422-24, 448-53.
n361. See id.
n362. See, e.g., Bernard Lefkowitz, Our Guys: The Glen Ridge Rape and the Secret Life of
the Perfect Suburb 185-86 (1997) (recounting teenage rapists' bragging about their exploits).
n363. See McGinn, supra note 325, at 77.
n364. See id. at 76-78.
n365. Id. at 77-78.
n366. See id. at 76-78. Thus, McGinn notes, "Seduction of the reluctant differs crucially from
brute rape in this respect, since rape will not normally involve any suspension of standing
values in the victim." Id. at 78. McGinn is not saying that seduction is worse than rape but
only that seduction brings the seducer a special psychic pleasure akin to sadism in that both
"share the characteristic of ... making the other want what he normally does not want, and in
a fundamental way." Id. McGinn sees this as a continuum, sadism as most evil, next
seduction, next certain kinds of persuasion, such as "arguing a person out of their core
religious or moral beliefs - persuading a theist there is no God, or an atheist that there is
one." Id. Such efforts are perceived as "brow-beating" precisely because they share qualities
with sadistic abuse, but it is not that persuasion is itself wrong but rather the attitudes that
motivate it, the sense of a "rare and enticing form of power" in threatening another's core
values with "psychological violence ...." Id. McGinn is also, therefore, not condemning mutual
"seduction." When two people feel a sexual attraction toward each other, each may engage in
behavior designed to increase the other's desire and comfort. There may be a psychological
"dance" in which the parties contend for when, where, and how particular sexual activities will
take place. But this differs from one person seeking to overcome a fundamental reluctance,
for whatever reason (for example, a commitment to have sex only with someone you love or
a desire to go slow and build trust) to engage in sexual conduct. The evil lay precisely in the
58
specific desire to overcome reluctance, to make another want what they do not want. A date
rapist who sees sex as a war to be won, and who wrongly convinces himself that his victim
could no longer resist his charms, rejoices in his subverting of his date's core values. He is a
psychological sadist.
n367. See Baker, Sex, Rape, and Shame, supra note 327, at 674; Sanday, supra note 57, at
196.
n368. See supra notes 136-66, 327-33, 354-67 and accompanying text.
n369. McGinn, supra note 325, at 66. Correspondingly, anything that promotes a sense of
commonality and solidarity with women, "ideas of family and community," "pushes against
the evil impulse...." Id.
n370. See generally Jeffrie G. Murphy & Jean Hampton, Forgiveness and Mercy (1988)
(assuming that the criminal law does at least in part embody the retributive emotions,
debating when it is morally appropriate to feel or act on such emotions, and discussing the
nature of forgiveness and mercy). Both Murphy and Hampton admit that it is sometimes
permissible to feel and act on retributive emotions, Murphy being willing to do so more often
than Hampton. See id. at 14-35, 79-90, 106-09, 145-57, 177-86. Moreover, Murphy explicitly
concludes that the criminal law may sometimes take such emotions into account. See id. at
173-80. I simply assume here, without defending the point (a defense I see as an
unnecessary detour), that if it is morally appropriate to feel a retributive emotion, it is wise
for the criminal law to consider such an emotion in crafting legal rules. I also do not address
directly when, despite our retributive feelings, we should forgive an offender. My working
assumption is that where it is proper to feel a retributive emotion, there is no duty to forgive
until the offender has been punished or taken appropriate acts of correction and repentance.
In this respect, my position is close to one defended by Murphy early in the book. See
Murphy & Hampton, supra, at 26-29 (describing repentance, good motives (the insult was not
intended), the offender's suffering or humiliation, and old times' sake as reasons to forgive).
Furthermore, law does more than simply institutionalize the retributive emotions, so the law
might punish (for example, to deter future offenders) even where we forgive a current
wrongdoer. See id. at 31-34. More recently, Professor Murphy has expressed some doubts
about the wisdom of character retributivism. See generally Jeffrie G. Murphy, Moral
Epistemology, the Retributive Emotions, and the "Clumsy Moral Philosophy" of Jesus Christ, in
The Passions of Law 149-167 (Susan Bandes ed., 1999). Murphy is apparently, however, not
abandoning character retributivism so much as cautioning that society should punish with
"regret, humility, and with a vivid realization that we are involved in a fallible and finite
human institution - one that is necessary but regrettable," id. at 160-61, a sentiment with
which I largely agree. See also Robert C. Solomon, Justice v. Vengeance: On Law and the
Satisfaction of Emotion, in The Passions of Law, supra, at 123-48 (a stirring defense of the
wisdom of basing criminal punishment on our retributive emotions and a partial response to
Murphy's recent reticence without rejecting his call to humility). I also want to stress my
personal belief that retribution can be followed by redemption. The two concepts are not
inconsistent.
n371. See supra text accompanying notes 31-40.
n372. See Murphy & Hampton, supra note 370, at 8.
n373. See id. at 15-20.
n374. See id. at 50-53. Hampton is sometimes a bit unclear or inconsistent in her use of
terminology, but her central point is that we are insulted whenever we are regarded as not
valuable enough to merit better treatment, and we are morally wrongly degraded whenever a
responsible agent is disrespectful of our worth. See id. at 44-46, 52-53. How we feel about
being degraded varies with our level of self-confidence; if we reject the assessment of our
worth as too low, Murphy initially says we feel "demeaned" - forced to endure treatment
beneath our true worth. See id. at 44-46. If you take the insult as evidence that you are
59
indeed of low value, or if you feel that an offender's actions have indeed lowered your
previously higher value (as where a bullet paralyzes a male from the waist down, and he no
longer feels like a "real man"), you are "diminished." See id. at 49-53. Hampton notes that
perhaps the most common reaction to degradation is a mixed one: you fear your low value
has been revealed, but you believe - and seek by protest to assert - your true, higher rank.
See id. at 54. In short, you simultaneously feel both diminished and demeaned, and at
different points Hampton uses each of these terms to describe these mixed emotions. See id.
at 50-51, 54. I describe this mixture as being "demeaned" because I think it more clearly
separates the need for moral protest from diminishment of the first sort, the clear sense that
you are unworthy of protesting. Hampton ultimately defines "resentment" as involving
precisely these mixed feelings, combined with an act of defiance as a defense against the
attack on your self-esteem. See id. at 56-58. Hampton distinquishes resentment from
"indignation," which is partly a kind of pure sense of being demeaned, that is, such great
confidence in your value that you protest the abusive treatment and fear that the
unchallenged offender will harm others, but you do not see his insult as either revealing or
effecting a loss of your own self-worth. See id. at 58-60. Accordingly, I avoid describing this
pure sense as being "demeaned," for the distinction between that term and "indignation" then
becomes meaningless.
n375. See id. at 56-58.
n376. See id.
n377. See id. at 70-71.
n378. See id. at 73-76. Hampton also speaks of "spiteful haters": those who believe they are
low and want company at the bottom, another self-defeating strategy. See id. at 76-77.
n379. See id. at 57-60.
n380. See id.
n381. See id.
n382. See id. at 56-60.
n383. See id at 56-60, 80-81.
n384. See id. at 124-27.
n385. See id. at 79-81, 124-27 (following from the ideas that even those not personally
wronged (the indignant) can desire retribution).
n386. See id. at 126-27.
n387. See id. at 127-28, 134-35.
n388. Id. at 146.
n389. Id.
n390. See id. at 148-57. The moral hater, unlike the malicious hater, is motivated by morality
and seeks only to challenge the offender's false sense of rank, his evil cause, not simply to
bring him low. See id. at 80-82, 122-37. The moral hater's desire to harm the wrongdoer is
generally linked to retribution, but to want retribution is "to strike a blow for morality and
thus for the idea that all human beings have great value, the victim must make sure that she
fights in a way that respects the wrongdoer's very real value; she must, to use Kant's phrase,
defeat him in such a way that she continues to 'respect humanity in his person'." Id. at 137.
Hampton calls moral hatred linked to retribution "retributive hatred" and distinguishes it from
60
"vengeance," the simple desire to master the offender by causing him pain. See id. at 138,
146-47. Murphy is somewhat more accepting of the idea that vengeance can, in the abstract,
be morally justified, though he doubts that seeking it is something with which fallible humans
can be trusted. See id. at 162-66.
n391. See id. at 48-53.
n392. Id at 49.
n393. See id. at 141-42.
n394. See id.
n395. See id.
n396. See supra text accompanying notes 327-33, 351-59 (discussing date rapist motives).
n397. See, e.g., Dressler, supra note 4, at 133-46, 545-47 (discussing the mistake of fact
defense). I have focused in this article on what many have seen as the difficult question in
date rape: whether to hold a defendant liable when he believes his victim consented. See,
e.g., Schulhofer, supra note 4, at 59-68. A date rapist who is aware of the woman's nonconsent seems more obviously evil, yet also might be acquitted under existing law because
he still may not act with what the law defines as "force." See supra note 4. Acting with actual
awareness of a woman's non-consent, or even of the risk that that is so, may arguably merit
harsher punishment than where the man's conduct is merely negligent, but that does not
detract from the serious immorality of negligent insensitivity to a woman's consent, an
immorality sufficiently serious to warrant status as a felony. See id. at 283-84 (recognizing
that proposed model statutes recognizing similar points).
n398. See generally Taslitz, Rape and Culture, supra note 2.
n399. If the victim has some significant sense of her own self-worth, she will feel demeaned
rather than diminished by date rape. See supra notes 374, 390 and accompanying text.
n400. See Murphy & Hampton, supra note 370, at 16-18.
n401. Id. at 49.
n402. See id. at 49.
n403. See supra text accompanying notes 268-82.
n404. See supra text accompanying notes 268-82.
n405. See Model Penal Code 2.02, 213.1 (providing that even an unreasonable mistake would
result in acquittal if the defendant was thereby rendered unaware of a substantial risk that
the woman was not consenting).
n406. See Harris, Forcible Rape, supra note 9, at 52 ("Pineau's assumption that changing the
substantive law of rape will change the outcome of date rape cases is too simple.... Even if
these [substantive legal] conditions were met ..., the law on the books must still be
interpreted by judges, juries, and attorneys. For date rape to be taken truly seriously as a
crime, communicative sexuality must be a social as well as a legal norm.").
n407. See Fed. R. Evid. 413.
n408. See Fed. R. Evid. 412.
n409. See generally Baker, Once a Rapist, supra note 327. See also Aviva Orenstein, No Bad
61
Men!: A Feminist Analysis of Character Evidence in Rape Trials, 49 Hastings L.J. 663, 686
n.97 (1998).
n410. See generally David P. Bryden & Roger C. Park, "Other Crimes" Evidence in Sex
Offense Cases, 78 Minn. L. Rev. 529 (1994) (noting radical nature of these changes, but
offering more traditional justifications for doing so, relying on concepts of "probative value"
and "unfair prejudice").
n411. See Judith Wagner DeCew, In Pursuit of Privacy: Law, Ethics, and the Rise of
Technology 9-25, 30 (1997) (discussing scope of legal protection of privacy).
n412. See Laurence H. Tribe, American Constitutional Law 1352 (2d ed. 1988) (describing the
constitutional privacy right to an abortion as "something of a misnomer: what is truly
implicated in the decision whether to abort or to give birth is not privacy, but autonomy").
n413. See Andrew E. Taslitz & Margaret L. Paris, Constitutional Criminal Procedure 95-102
(1997) (describing scope of Fourth Amendment right to privacy).
n414. See DeCew, supra note 411, at 30; cf. Fed. R. Evid. 412 advisory committee's note
("The [rape shield] rule aims to safeguard the alleged victim against the invasion of privacy,
potential embarassment and sexual stereotyping that is associated with public disclosure of
intimate sexual details and the infusion of sexual innuendo into the factfinding process.").
n415. See Tribe, supra note 412, at 1303 ("Whatever the outcome of the philosophical
debate between those who regard privacy as but a name for a grab-bag of unrelated goodies
and those who think it a unitary concept, these kinds of definitional attempts share ...
important limitations.").
n416. DeCew, supra note 411, at 66. There have been numerous recent works on privacy by
important thinkers who give the concept a slightly different spin than does DeCew, but all
these variations are, at least in the context of the rape victim's privacy, consistent with the
arguments that I make here. See, e.g., Anita Allen, Uneasy Access: Privacy for Women in a
Free Society 52 (1987) ("The exercise of privacy-promoting liberties enhance persons and
personal relationships in ways that cannot be ignored by those who feel ethically constrained
to treat persons as more than things."); Patricia Boling, Privacy and the Politics of Intimate
Life 79 (1996) ("A third reason to respect the individual's privacy about intimate-life decisions
has to do with the need to value and respect diversity. Scrutinizing an individual's intimate
practices and demanding conformity to an implicit standard promotes homogeneity and
undercuts and devalues differences. Assuming an essentialized identity based on intimate
affiliations or decisions likewise renders the diversity of people's experiences invisible and
places normalizing pressure on different or dissenting group members."); Julie Innes, Privacy,
Intimacy, and Isolation 107-08 (1992) ("It is clear that an agent must be accorded freedom
of intimate action if she is to be treated with the respect due to her as an autonomous moral
person with the capacity to love, care, and like.... Neither do I respect her autonomy with
respect to these emotions if I seriously curtail her expression of them in action, for example,
if I tell an agent that she is only 'free' to be a mother in the setting of a traditional
heterosexual family."); Vincent J. Samar, The Right to Privacy: Gays, Lesbians, and the
Constitution 88 (1991) ("In a culture that emphasizes conformity and stereotypical forms of
behavior, there may be few truly autonomous people. Nevertheless, to the extent that people
are autonomous at all, privacy helps to insure that autonomy.").
n417. See generally Ferdinand David Schoeman, Privacy and Social Freedom (1992)
(discussing the expressive value of privacy). Schoeman recognizes other values as well, as
does DeCew, who re-interprets Schoeman's work, see DeCew, supra note 411, at 67-80, but
those details are not relevant here.
n418. William James, The Varieties of Religious Experience 9 (1963). See also DeCew, supra
note 411, at 61-80 (discussing the value of privacy in promoting individual uniqueness as
part of self-expression). See also Andrew E. Taslitz, Condemning the Racist Personality: Why
62
the Critics of Hate Crimes Legislation are Wrong, B.C. L. Rev. 739, 746-58 (1999) (analyzing
the importance of the human sense of uniqueness in the criminal law).
n419. See, e.g., Taslitz, Feminist Approach, supra note 31, at 18-23 (discussing the social
aspect of our "selves").
n420. Erving Goffman, The Territories of the Self, in Relations in Public: Microstudies of the
Public Order 28-29, 31, 38-39, 40-44, 60 (1971) [hereinafter Goffman, Territories of the
Self]; Erving Goffman, The Nature of Deference and Demeanor, in Interaction Ritual: Essays
on Face-to-Face Behavior 47, 56, 77 (1967).
n421. Robert C. Post, Constitutional Domains: Democracy, Community, Management 63
(1995).
n422. Id. at 73.
n423. See Goffman, Territories of the Self, supra note 420, at 60 (The ability of individuals to
speak the idiom of territories "is somehow central to the subjective sense that the individual
has concerning his selfhood, his ego.... The issue is not whether a preserve is exclusively
maintained, or shared, or given up entirely, but rather the role the individual is allowed in
determining what happens to his claim."); Post, supra note 421, at 74-85 (applying
Goffman's insight to informational territories).
n424. See DeCew, supra 411, at 61-80. I have altered DeCew's analysis somewhat, fusing it
with Post's insights, see Post, supra note 421, at 74-85, because I view both Post and DeCew
as offering different (but related) reasons for the importance of human relationships and selfexpression in privacy analysis.
n425. See Innes, supra note 416, at 61 (arguing for the primacy of intimacy to all privacy
analyses).
n426. See id. at 74-94 (defining "intimacy" and its role in privacy).
n427. See DeCew, supra note 411, at 81-84 (summarizing and critiquing feminist fears about
privacy).
n428. See, e.g., Fed. R. Evid. 412 advisory committee's note (noting strong privacy interest
in "intimate sexual details"); David Archard, Sexual Consent 20 (1998) ("The second reason
for thinking consent important in sex [is this:] ... Sex is an opening up of one person to
another, a mutual disclosure in circumstances of particular intimacy and vulnerability.").
n429. See, e.g., Allen, supra note 416, at 158-60 (describing how revelation of a rape
victim's prior consensual sex acts at a criminal trial invades deeply held privacy notions);
Post, supra note 421, at 63 (arguing that violations of the "territories of the self" are
"experienced as a demeaning indignity").
n430. See, e.g., DeCew, supra note 411, at 81 ("Many feminists have called attention to the
'darker side of privacy,' citing its potential to shield domination, repression, degradation, and
physical harm to women and others without power."). Cf. Catharine MacKinnon, Toward a
Feminist Theory of the State 191("For women the measure of intimacy has been the measure
of the oppression. This is why feminism has had to explode the private.").
n431. See, e.g., Baker, Sex, Rape, and Shame, supra note 327, at 670-71 (discussing that a
primary motivation for date rape is the prestige men receive in other men's eyes simply from
engaging in large quantities of sex acts, regardless of whether consensual or not).
n432. See supra Part IIB.
n433. See supra Part II (discussing gendered concepts of the emotions and female sexuality);
63
Taslitz, Rape and Culture, supra note 2, at 82-94 (showing power of implied use of slut-like
labels in illustrative infamous rape trials, including that of William Kennedy Smith). See
generally Tanenbaum, supra note 67.
n434. See Taslitz, Rape and Culture, supra note 2, at 60-62.
n435. See id. at 25-28.
n436. See id. at 25-28, 60-62.
n437. See generally Taslitz, Rape and Culture, supra note 2 (documenting the huge defense
advantage in rape trials created by gendered cultural rape tales and evidence rules).
n438. See id. at 60-62.
n439. See Report of the Judicial Conference of the United States on the Admission of
Character Evidence in Certain Sexual Misconduct Cases, 159 F.R.D. 51, 52-54 (1995)
(arguing the proposed intention to correct ambiguities and possible constitutional infirmities
contained in the new rules while still effectuating congressional intent).
n440. See supra notes 341-50 and accompanying text.
n441. See supra notes 341-50 and accompanying text.
n442. See Pineau, Response to Critics, supra note 7, at 65-67.
n443. See Taslitz, Rape and Culture, supra note 2, at 62-63 (discussing cultural rape tales
and jury selection).
n444. See id. at 58-63 (discussing the importance of incremental narrative development still
rooting new, liberatory narratives at least partly in older rape tales).
n445. James Acker & Charles Lanier, Attitudes Toward the Death Penalty, 33 Crim. L. Bull.
50, 53 (1998).
n446. See Taslitz, Rape and Culture, supra note 2, at 37-43, 62-63.
n447. See id. at 43.
n448. See id. at 62-63.
n449. See Taslitz, Patriarchal Stories, supra note 1, at 498-99 n.693.
n450. See id. at 497-500.
n451. See id. The analogous suggestions that I made for voir dire reform in my earlier article
focused on the importance of identifying jurors most free from patriarchal tales, but did not
discuss, as I do here, how this helps in jettisoning jurors unduly bound by gendered concepts
of the sexual emotions. See id.
n452. See Taslitz, Rape and Culture, supra note 2, at 131-33.
n453. See id.
n454. Armour, supra note 240, at 122.
n455. See Taslitz, Rape and Culture, supra note 2, at 131-33.
n456. See id. at 133 (recommending educating jurors about the psychological reasons why
64
they often resist fairly considering rape victims' tales).
n457. Pineau, Date Rape, supra note 4, at 24.
n458. See Schulhofer, supra note 4, at 17-113 (explaining how "consent" makes its way into
Model Penal Code trials, despite the drafters' efforts to avoid the term and explaining why
efforts to delete consent as an element undermine female autonomy).
n459. See Schulhofer, supra note 4, at 283-84 (adopting similar grading scheme).
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