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The importance of feminism in dealing with cases of rape

Common Themes and the Liberal-to-Radical Continuum Virtually all feminist thinking about rape shares several underlying themes.

Feminist thought and activism have challenged the myth that rape is rare and exceptional, showing that it is in fact a common experience in the lives of girls and women.

It has now been amply confirmed by research: Of these women, 42. Indeed, many women suffer multiple rapes in their lives: An accurate estimate of rape's frequency requires a clear understanding of rape itself and of the varied circumstances in which it occurs.

Feminist Perspectives on Rape

Often contributing to the underestimation of rape's frequency is a narrow and stereotypical conception of what rape is: While such rapes do occur, the great majority of rapes are committed by a man or men known to the victim: For this reason, again contrary to stereotype, most rapes are intraracial. In the study of over 16,000 Americans mentioned above, 51. Remarkably few assailants are punished: Perhaps the most basic challenge that feminists have posed to traditional views of rape lies in the recognition of rape as a crime against the victim herself.

A raped woman or girl was less valuable as property, and penalties for rape often involved fines or other compensation paid to her husband or father Burgess-Jackson 1996, 68.

The marital rape exemption in law, which survived in the U. A further corollary of this view was that women who were not the private property of any individual man—for instance, prostitutes—were unrapeable, or at least that no one important was harmed by their rape Dworkin 1997, 196—202, Burgess-Jackson 1996, 46-47, 69. Feminists' recognition of the importance of feminism in dealing with cases of rape severity and pervasiveness of rape's harms, and of how infrequently victims receive justice, has inspired decades of activism for social and legal change.

Feminists in many U. Feminist views of rape can be understood as arrayed on a continuum from liberal to radical. More radical views, in contrast, contend that rape must be recognized and understood as an important pillar of patriarchy. Johnson defines patriarchy as a social system in which men disproportionately occupy positions of power and authority, central norms and values are associated with manhood and masculinity which in turn are defined in terms of dominance and controland men are the primary focus of attention in most cultural spaces 2005, 4-15.

Radical feminists see rape as arising from patriarchal constructions of gender and sexuality within the context of broader systems of male power, and emphasize the harm that rape does to women as a group. In addition, radical feminist approaches to rape often share one or more of the following three features.

First, they regard the deprivation of women's bodily sovereignty—in particular, male control over the sexual and reproductive uses of women's bodies—as a central defining element of patriarchy Whisnant 2007. As a result, they analyze rape as one of multiple forms of men's sexual violence and exploitation, looking at their interconnections and how they work in concert to maintain and reinforce women's oppression.

Third, the focus on group-based oppression has also led many radical feminist thinkers to examine the role of rape itself, and of ideologies about rape, in creating and reproducing not only patriarchy but multiple systems of domination, including racism and colonialism. Feminists are committed to ensuring that women's and girls' experiences of sexual violation are taken seriously as such, that the harm they suffer therein is recognized, and that those who inflict that harm are held accountable.

Achieving these goals has often involved arguing that certain kinds of encounters that have previously not been socially or legally recognized as rape should be so recognized—thus, challenging overly restrictive ideas often encoded in law about what counts as rape Burgess-Jackson 1996, 77-86; Sanday 1996, 161-183; Bevacqua 2000. Obvious examples include the abolition of marital-rape exemptions and the recognition of date and acquaintance rape. There are varying feminist views about whether and how the concept of rape, and hence its framing in the law, requires further renegotiation or expansion.

Access Check

Many laws also include a force requirement, about which more below. To consent to something is to reverse a prima facie supposition about what may and may not be done.

In most contexts, there is a standing presumption that one does not have access to and may not make use of another's body, property, personal information, or other elements of his or her personal domain. This presumption is reversed, however, when and for as long as the other consents to such access.

Consent thus alters the structure of rights and obligations between two or more parties. Assuming for the moment that, in sexual encounters, rape exists where consent is lacking, the question then becomes what counts as consent.

  1. In addition, new cultural attention to victimization in general has been documented, and people are more willing today than in the past to see themselves as victims of crimes Best 1999.
  2. In this article, I explore how women understand rape and whether feminist arguments about violence against women have become part of how women construct the meaning of rape in their worlds.
  3. The Case of the Missing Question. Of the 25, 3 refused, 1 had permanently closed, and 21 accepted.
  4. The question is what other contextual constraints and pressures may also undermine the validity of a woman's apparent consent.

Women's sexual consent has in many instances been understood quite expansively, as simply the absence of refusal or resistance; feminists have criticized this approach on the grounds that, among its other untoward implications, it regards even unconscious women as consenting MacKinnon 1989b, 340; Archard 1998, 85. A vital task on the feminist agenda has been to challenge and discredit such ideas—to deny that what a woman wears, where she goes and with whom, or what sexual choices she has made in the past have any relevance to whether she should be seen as having consented to sex on a particular occasion.

Consent in general may be understood as either attitudinal or performative Kazan 1998. Because the kinds of behaviors mentioned above such as wearing revealing clothes, going somewhere alone with a man, or engaging in heavy petting have often been claimed by perpetrators to constitute evidence that a woman was in a mental state of willingness to have intercourse, feminists have often rejected attitudinal accounts in favor of performative ones; with a performative account, in contrast, a defendant can be challenged to articulate exactly what the woman said or did that constituted her consent to intercourse.

An added advantage of a performative account is that it suggests that sexual consent is not a woman's implied default state, but rather must be actively and affirmatively granted. One limitation of a purely performative account of consent is that it does not take into account the context in which the relevant behavior or utterance occurs.

The question is what other contextual constraints and pressures may also undermine the validity of a woman's apparent consent. There are many kinds of explicit and implicit threats that render a woman's consent to sex less than meaningful: Which if any such nonviolent coercive pressures should be regarded as rape, either morally or legally, is a matter of some controversy Schulhofer 1998; Burgess-Jackson 1996, 91-106.

Viewing at least certain kinds of nonviolent coercive pressures as incompatible with meaningful consent may yield the conclusion that some quid pro quo sexual harassment is also rape Falk 1998. In the most general terms, a mens rea requirement means that the prosecution must show not only that nonconsensual sex occurred, but also that the man was in a certain state of mind with regard to the woman's lack of consent.

Just what that state of mind is—what counts as mens rea in cases of rape—is a matter of some dispute Burgess-Jackson 1996, 137—161. The most conservative position—defended most famously in the 1976 DPP v Morgan decision Baron 2001, 9-14 —holds that a man has mens rea only if he believes the woman is not consenting or that she is at least probably not consenting. On this view, a man who sincerely believes that the woman is consenting is not guilty of rape, no matter how unreasonable his belief may be under the circumstances.

A more moderate view is that a man has mens rea if he either believes the woman is not consenting or believes unreasonably that she is consenting. Thus, in jurisdictions where this understanding of mens rea is in force, the question of whether the woman actually consented often gives way—particularly in cases of date and acquaintance rape—to the question of whether the man reasonably believed she consented.

Theorists have different views about the conditions under which it is reasonable for a man to believe that a woman is consenting to sexual intercourse. Archard 1997 argues forcefully against this view, however, pointing out that any such conventions are likely to be ambiguous and not universally understood particularly since research shows that men routinely interpret women's behavior in more sexual terms than women mean or intendthat a man risks doing serious harm by relying on his beliefs about such conventions, and that there is a ready alternative to risking such harm, namely, inquiring explicitly as to his partner's consent or lack thereof.

Pineau believes that this model is the backdrop against which many people base their judgments about reasonable belief in rape cases. Communicative sexuality is most likely to be rewarding for both parties, allows them to promote each other's sensual ends non-manipulatively and non-paternalistically, and observes norms appropriate to friendship and trust.

For he cannot know, except through the practice of communicative sexuality, whether his partner has any sexual reason for continuing the encounter. And where she does not, he runs the risk of imposing on her what she is not willing to have. All that is needed, then, in order to provide women with legal protection from date rape is to make both reckless indifference and willful ignorance a sufficient condition of mens rea, and to make communicative sexuality the accepted norm of sex to which a reasonable woman would agree.

Finally, some feminists have argued that rape should be a strict liability offense, that is, one with no mens rea requirement at all. Proponents of this approach believe that a gender-neutral standard of reasonableness is impossible given the differences between men's and women's social positioning. They point out, for instance, that men have greater social and in most cases physical power than women and, relatedly, that women's beliefs and reactions are shaped by the constant threat of male violence with which women live Kerns 2001.

Because of these differences, women and men often have divergent perceptions of interpersonal behavior Scheppele 1991, 45: Opponents of the reasonable woman standard contend that it is both possible and desirable to account for common differences between men's and women's physiologies, social experiences, and perceptions without importing gender into the definition of reasonableness itself.

Cases of nonconsensual but unforced sex, on the other hand, include those in which the victim is induced to have sex through fraudulent misrepresentation for instance, a doctor telling her that sex with him is necessary for her cure the importance of feminism in dealing with cases of rape, and those in which she is coerced through nonviolent means for instance, a professor telling her that she must have sex with him to pass the course.

Most feminists see the dual requirement of force and nonconsent as redundant at best and, at worst, as defining many rapes out of existence. Feminists differ, however, as to how rape laws should ideally be structured. Perhaps the most common view is that the force requirement should be eliminated, and rape defined simply as nonconsensual sex, with differing degrees of severity depending on whether and how much force and violence are employed Estrich 1987.

While some state statutes are now written this way, they often build physical force into the definition of non-consent; thus in practice they function very much like the dual requirement of force and non-consent Anderson 2005a, 630. Another alternative is to eliminate the nonconsent requirement, defining rape simply as forced sex. This approach has the advantage of focusing on what the perpetrator did, rather than on how the victim responded that is, on whether her behavior constituted, or could reasonably have been seen by the perpetrator as constituting, consent.

A third approach is to separate the two elements into two separate crimes, one based on the use of force and the other on the lack of consent. McGregor defends this idea, proposing that: If either the offender engaged in sexual activity through the use of force or he failed to secure meaningful consent, then [he] has committed an offense ….

Rather than requiring both conditions, as the current statutes do, or attempting to pack all cases into one or the other of the conjuncts … this approach recognizes that there are at least two different offenses … for which there are different conditions and different levels of seriousness.

Some commentators have observed that developing such a lesser offense may aid in winning convictions, as juries are reluctant to convict nonviolent offenders of rape. She explains her approach as follows: The idea here is not to prohibit sexual contact between hierarchical unequals per se but to legally interpret sex that a hierarchical subordinate says was unwanted in the context of the forms of force that animate the hierarchy between the parties. To counter a claim that sex was forced by inequality, a defendant could among other defenses prove the sex was wanted—affirmatively and freely wanted—despite the inequality, and was not forced by the socially entrenched forms of power that distinguish the parties.

According to the No Model, a sexual act is consensual unless the victim says no or resists physically.

According to the Yes Model, a sexual act is rape unless consent is affirmatively granted by verbal or physical behavior. Furthermore, both the No and Yes models rely heavily on men's ability to interpret women's nonverbal behavior, despite strong evidence showing that men routinely fail in this endeavor: Finally, both models in practice tend to assume that a woman's willing participation in non-penetrative sexual activity is a reliable indicator of her consent to penetration for instance, Anderson points out that according to Schulhofer, an advocate of the Yes Model, a woman's engaging in heavy sexual petting typically indicates her affirmative willingness to have intercourse.

This assumption, Anderson emphasizes, is not only often untrue but, in the age of AIDS, especially dangerous. This requirement of consultation before penetration distinguishes Anderson's approach from Pineau's, despite their shared emphasis on communication; in addition, Pineau's model retains an overall consent standard whereas Anderson abandons that standard. Unless and until a relational context has been established that enables partners to interpret reliably each other's nonverbal behavior, the negotiation must be verbal.

The negotiation model is gender-neutral, requiring that any person who initiates sexual penetration consult verbally with his or her partner of either gender to come to a mutual understanding of whether both parties want penetration to occur. The negotiation model thus differs at least in spirit from even a version of the Yes Model that requires verbal consent, in that it emphasizes mutuality rather than a one-sided permission-seeking.

It bears noting that successful rape prosecutions depend not only on how rape is legally defined but, at least equally importantly, on the general public's willingness to believe women's testimony rather than seeing them as lying or confused and to recognize particular encounters as instances of the applicable legal definition that is, to see this behavior as force, or this utterance as expressing nonconsent.

  1. Radical feminists see rape as arising from patriarchal constructions of gender and sexuality within the context of broader systems of male power, and emphasize the harm that rape does to women as a group.
  2. University of California Press. Some have puzzled over how war rape aimed at enforced pregnancy and birth can be genocidal, since it aims to produce rather than prevent births within the targeted population.
  3. Treating pressure to have sex like any other sort of interpersonal pressure obscures the role such sexual pressure might play in supporting gender hierarchy, and fails to explain why pressure by men against women is more problematic than pressure by women against men. In a couple of minutes it's over, and he rolls away from her and goes to sleep.

The continuing prevalence of such rape-supportive beliefs can render even well-intentioned prosecutors unwilling to pursue legitimate cases, given the likelihood that juries will refuse to convict.

Feminist theorists have often sought to articulate a more richly textured sense of rape's wrongness, and of its distinctive harms, than the law alone can provide. No doubt both the wrong and the harm of rape are complex and multifarious; these interpretive frames suggest emphases that may be illuminating in different contexts and for different purposes. While this view has rarely been defended by feminist philosophers, it has been prominent in some feminist anti-rape public education and activism.

One feminist theorist often claimed to have held this view is Susan Brownmiller 1975 ; see Cahill 2001, 16-28. Thus, in addition to challenging victim-blaming assumptions, feminists often emphasized rapists' non-sexual motivations, such as anger and the desire for dominance and control; on this view, the rapist is a violent criminal like other violent criminals, not just a guy seeking sex a bit too vigorously.

Similarly, this approach emphasizes that rape victims are real crime victims, not vaguely titillating people who had some overly rough sex and might just have liked it. Rape's sexual nature is central to understanding both its perpetrators' motivations and its effects on victims, not to mention the crime's broader social and ideological roots and consequences.

  • Holt, Rinehart and Winston;
  • In the construction of any set of circumstances as a social problem, claims of widespread harm to large numbers of people are an integral part of framing the problem as serious and in need of public attention Best 1990, 1999;
  • The ICTY judgment marked international humanitarian law's first official recognition of rape as a crime against humanity;
  • Racist ideologies about rape are also prominent in the history of colonialism and genocide against Native Americans;
  • A - What percentage of women will be raped in their lifetime...

While perpetrators differ in their strongest occurrent motivations, it is important to ask why so many men who wish to harm or violate women do so in a sexual manner.

Furthermore, some rapes do occur because a man wants to have sex, and perhaps would even prefer it if his partner consented, but is prepared to proceed without her consent. Furthermore, many rape survivors are damaged specifically in their sexuality, facing difficulties in their sexual relationships in the months and years following the rape.