Rape

Unjustifiable assumptions about sex and gender roles, the untamable potency of maleness, and gynophobic notions about women's bodies inform and influence a broad range of policy-making institutions in this society. In December 2004, the U.S. Court of Appeals for the Sixth Circuit continued this ignoble cultural pastime when they decided Everson v. Michigan Department of Corrections. In this decision, the Everson Court accepted the Michigan Department of Correction's claim that “the very manhood” of male prison guards both threatens the safety (...) of female inmates and violates the women's “special sense of privacy in their genitals” and declared that sex-specific employment policies for prison guards is not impermissibly discriminatory. I believe that the Court's decision relies on unacceptable stereotypes about sex, gender and sexuality and it significantly undermines Title VII's power to end discriminatory employment practices. (shrink)

Pressuring someone into having sex would seem to differ in significant ways from pressuring someone into investing in one’s business or buying an expensive bauble. In affirming this claim, I take issue with a recent essay by Sarah Conly (‘Seduction, Rape, and Coercion’, Ethics, October 2004), who thinks that pressuring into sex can be helpfully evaluated by analogy to these other instances of using pressure. Drawing upon work by Alan Wertheimer, the leading theorist of coercion, she argues that so long (...) as pressuring does not amount to coercing someone into having sex, her consent to sex answers the important ethical questions about it. In this essay, I argue that to understand the real significance of pressuring into sex, we need to appeal to background considerations, especially the male-dominant gender hierarchy, which renders sexual pressuring different from its non-sexual analogues. 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. I suggest that men pressuring women to have sex differs from the reverse case because of at least two factors: (1) gendered social institutions which add to the pressures against women, and (2) the greater likelihood that men, not women, will use violence if denied, and the lesser ability of women compared to men to resist such violence without harm. (shrink)

If rape is evaluated as a serious wrong, can it also be defined as non-consensual sex (NCS)? Many do not see all instances of NCS as seriously wrongful. I argue that rape is both properly defined as NCS and properly evaluated as a serious wrong. First, I distinguish the hurtfulness of rape from its wrongfulness; secondly, I classify its harms and characterize its essential wrongfulness; thirdly, I criticize a view of rape as merely ‘sex minus consent’; fourthly, I criticize mistaken (...) attempts to discount the wrongfulness of rape for those who do not value sex; fifthly, I contrast two models for weighing interests, according to one of which rape is not seriously wrongful; finally, I sketch a defence of the view that our sexual integrity ought to be a central interest of ours. (shrink)

In *Engaging Capital Emotions,* Douglas Berman and Stephanos Bibas argue that emotion is central to understanding and evaluating the death penalty, and that the emotional case for the death penalty for child rape may be even stronger than for adult murder. Both the Berman and Bibas article and the subsequent Supreme Court decision in Kennedy v. Louisiana (striking down the death penalty for child rape) raise difficult questions about how to measure the heinousness of crimes other than murder, and about (...) the role the pain suffered by victims and victims' families should play in this inquiry. In this Reply, I agree with the authors on the importance of confronting emotion's role in capital punishment, for reasons I discuss in Part A. However, I disagree with their claim that the moral outrage evoked by child rape supports making it a capital crime. Part B explores the difficulties of using the existence of moral outrage as a measure of appropriate punishment. Part C argues that the penal system should not merely reflect moral outrage, but channel and educate it. It suggests that the availability of the death penalty may create an anchoring effect, communicating the message that the death penalty is the proper way to express moral outrage and to honor the worth of murder victims. It explores the consequences of this message. Section II focuses on the role of emotion in deciding whether child rape should be a capital crime. Part A considers the problematic role of victim harm in determining whether the death penalty is appropriate. It explores the question, raised in Kennedy v Louisiana, of whether the effect of a capital trial on child rape victims ought to be part of the calculus. Part B argues that there are three particular problems with allowing juries to sentence child rapists to death: the deleterious effect of anger and empathy, the problem of generic prejudice, and the issue of race. (shrink)

Susan Estrich, Real Rape Cambridge and London: Harvard University Press, 1987, 160 pp.

When the International Criminal Tribunal for the Former Yugoslavia convicted the Bosnian Serb soldiers who used rape as a weapon of war of violating the human right to sexual self determination and of crimes against humanity, it transformed vulnerability from a mark of feminine weakness to a shared human condition. The court's judgment directs us to note the ways in which the exploitation of our bodied vulnerability is an assault on our dignity. It alerts us to the ways in which (...) the body of human rights law is a law of bodies; to the ways in which our desire for intimacy creates communal ties that ground our personal and social identities; to the ways in which the symbolic meanings of our bodies are integral to our sense of integrity and worth; and to the ways in which gender structures which position men as protectors of women make it possible for rape to be used as an effective and criminal weapon of war. (shrink)

: On February 22, 2001, three Bosnian Serb soldiers were found guilty of crimes against humanity. Their offense? Rape. This is the first time that rape has been prosecuted and condemned as a crime against humanity. Appealing to Jacques Derrida's democracy of the perhaps and Judith Butler's politics of performative contradiction, I see this judgment inaugurating a politics of the vulnerable body which challenges current understandings of evil, war crimes, and crimes against humanity.

In this unflinching look at the experience of suffering and one of its greatest manifestations—torture—J.M. Bernstein critiques the repressions of traditional moral theory, showing that our morals are not immutable ideals but fragile constructions that depend on our experience of suffering itself. Morals, Bernstein argues, not only guide our conduct but also express the depth of mutual dependence that we share as vulnerable and injurable individuals. Beginning with the attempts to abolish torture in the eighteenth century, and then sensitively examining (...) what is suffered in torture and related transgressions, such as rape, Bernstein elaborates a powerful new conception of moral injury. Crucially, he shows, moral injury always involves an injury to the status of an individual as a person—it is a violent assault against his or her dignity. Elaborating on this critical element of moral injury, he demonstrates that the mutual recognitions of trust form the invisible substance of our moral lives, that dignity is a fragile social possession, and that the perspective of ourselves as potential victims is an ineliminable feature of everyday moral experience. (shrink)

In his article ‘Did the Athenians Regard Seduction as a Worse Crime than Rape?’, CQ 40 , 370–7, Edward M. Harris rightly casts doubt on the value of Lysias 1.30–5, which has generally been accepted as evidence that the Athenians did indeed regard seduction as the worse of the two crimes. Euphiletos in this speech is defending himself on a charge of murder, and, as Harris says , ‘Euphiletus’ presentation of the Athenian statutes regarding rape and seduction is dictated by (...) the rhetorical constraints of his case. It is not a reflection of widely held social attitudes.'. (shrink)

The Kent indictment sharpens two key questions pertaining to the complex relationships between sexual harassment and rape law. ... However, none of the jurisdictions that criminalize nonconsensual sex per se acknowledge that submission to unwanted sex, resulting from being threatened or placed in fear of economic or professional harm in the workplace, academia, and other professional and institutional settings warrants criminal regulation. ... Failure to Align Social Norms with Legal Changes. While many scholars believe that the key to legal change (...) lies with re-defining the offense of rape as sex without consent, a prevailing social perception views rape as a forceful act involving either physical violence or the threat of it. ... Effectively allowing community views and prevailing social norms to define what qualifies as consent to sex is conceptually misdirected and makes it difficult, if not impossible, for rape law reforms to draw on the problematic notion of consent to sex. . ... Robinson further contends that "for rape reformers, the approach may suggest focusing public discussion and education on the impropriety of coercive pressures for sex - building the analogy between psychological coercion and physical coercion - and on the harmful effects of intercourse without consent - building the analogy to assault". ... Anderson concedes that rape constitutes an interference with one's sexual autonomy, but argues that focusing on sexual autonomy as the main harm of rape fails to capture its full harm. ... Baby is the paradigmatic example for the inadequacy of consent models to account for the complainant's lack of meaningful choices. ... These models are unable to take into consideration the background context and the underlying circumstances that characterize the sexual relationships between the pastor and the young boys: When "consent" is induced by exploitation of power disparities and by abuse of the victims' trust and reliance on the perpetrators, apparent permission should not render these sexual abuses legally permissible. ... In response to the drawbacks in current rape law which focuses on the notion of lack of consent to sex as the essence of the offense, this Article has advanced an alternative framework of rape discourse, one which better aligns with the actual experiences of victims, better captures the harm inflicted on them, and better accounts for the wrongdoing embodied in the perpetrator's culpable conduct. (shrink)

This collection of original essays by leading philosophers probes the philosophical aspects of rape in all of its manifestations: act, crime, practice, and institution. Among the issues examined are the nature of rape; the wrongfulness and harmfulness of rape; the relation of rape to racism, sexism, classism, and other forms of oppression; and the legitimacy of various rape-law doctrines. Each contributor advances a novel argument and seeks to disentangle the conceptual, evaluative, and empirical issues that arise in connection with the (...) crime. This essential reference work is among the first philosophical anthologies devoted exclusively to the subject of rape--as complex and interesting intellectually as it is pervasive and disturbing socially. (shrink)

: In 1977, Michel Foucault suggested that legal approaches to rape define it as merely an act of violence, not of sexuality, and therefore not distinct from other types of assaults. I argue that rape can not be considered merely an act of violence because it is instrumental in the construction of the distinctly feminine body. Insofar as the threat of rape is ineluctably, although not determinately, associated with the development of feminine bodily comportment, rape itself holds a host of (...) bodily and sexually specific meanings. (shrink)

Assuming a relational understanding of the self, I argue that empathy is necessary for individual and cultural recovery from rape. However, gender affects our ability to listen with empathy to rape survivors. For women, the existence of cultural memories discourages empathy either by engendering fear of their own future rape or by provoking sympathy rather than empathy. For men, the lack of cultural memories makes rape what Arendt calls an "unreality," thus diminishing the possibility for empathy. Although empathetic listeningpresents gender (...) specific challenges for both women and men, it should not be abandoned as a strategy for trauma recovery. I make two broad suggestions for promoting empathy. First, we need to teach empathy for victims and survivors. Second, we need to discredit problematic gender norms, which buttress rape culture and sexual violence. (shrink)

What distinguishes evils from ordinary wrongs? Is hatred a necessarily evil? Are some evils unforgivable? Are there evils we should tolerate? What can make evils hard to recognize? Are evils inevitable? How can we best respond to and live with evils? Claudia Card offers a secular theory of evil that responds to these questions and more. Evils, according to her theory, have two fundamental components. One component is reasonably foreseeable intolerable harm -- harm that makes a life indecent and impossible (...) or that makes a death indecent. The other component is culpable wrongdoing. Atrocities, such as genocides, slavery, war rape, torture, and severe child abuse, are Card's paradigms because in them these key elements are writ large. Atrocities deserve more attention than secular philosophers have so far paid them. They are distinguished from ordinary wrongs not by the psychological states of evildoers but by the seriousness of the harm that is done. Evildoers need not be sadistic:they may simply be negligent or unscrupulous in pursuing their goals. Card's theory represents a compromise between classic utilitarian and stoic alternatives (including Kant's theory of radical evil). Utilitarians tend to reduce evils to their harms; Stoics tend to reduce evils to the wickedness of perpetrators: Card accepts neither reduction. She also responds to Nietzsche's challenges about the worth of the concept of evil, and she uses her theory to argue that evils are more important than merely unjust inequalities. She applies the theory in explorations of war rape and violence against intimates. She also takes up what Primo Levi called "the gray zone", where victims become complicit in perpetrating on others evils that threaten to engulf themselves. While most past accounts of evil have focused on perpetrators, Card begins instead from the position of the victims, but then considers more generally how to respond to -- and live with -- evils, as victims, as perpetrators, and as those who have become both. (shrink)

Learning about martial sex crimes against men has made me rethink some of my ideas about rape as a weapon of war and how to respond to it. Such crimes can be as racist as they are sexist and, in the case of male victims, may be quite simply racist.

Learning about martial sex crimes against men has made me rethink some of my ideas about rape as a weapon of war and how to respond to it. Such crimes can be as racist as they are sexist and, in the case of male victims, may be quite simply racist.

It is a truism of modern discussions of Athenian law and oratory that the Athenians regarded adultery as a more heinous offence than rape. This consensus has been challenged in a valuable paper by E. M. Harris. But although Harris has successfully placed in question a number of assumptions about this area of Athenian law and ethics, I wish to argue that the traditional position is in its broad outlines correct. In this as in so many aspects of Athenian law (...) it is difficult to make firm statements. Firstly, for the Athenian system as a whole we lack evidence for many issues of legal prescription and procedure for the period before the restoration of the democracy, and our evidence is frequently lacunose even for the period after the restoration. As a result we are presented with a ‘snapshot’ of the Athenian system at a particular stage in its development and are rarely able to trace chronological developments in detail and frequently unable to trace them in broad outline. A further result of this ‘snapshot’ effect is a false impression of coherence. Legislative measures belonging to different periods are likely to present themselves as the result of an integrated design rather than the product of accretion. Finally, and most importantly, our sources distort. Occasionally they provide information on the laws and on legal procedure in passing, in order to contextualize an argument or narrative; but in general they are presenting us with information in an attempt to persuade. (shrink)

Many Guatemalan women suffered extreme sexual violence during the latter half of the twentieth century. Learning of this violence can evoke hatred in persons who love and respect women—hatred for the men who perpetrated the violence and also for other men around the world who victimize women in this way. Hatred is a common response to a perceived evil, and it might in some cases be a fitting response, but it is important to subject one's emotions to critical moral reflection. (...) A key task of ethics is to encourage persons to cultivate good habits of being moved. This essay analyzes the way in which two different texts manage, through the skillful presentation of experiential narratives, to help readers acknowledge the hatred they might feel, but also to think twice about the hatred to which they consent. (shrink)

In this essay I take issue with entrenched conceptions of individual autonomy for how they block understandings of the implications of rape in patriarchal cultures both 'at home' and in situations of armed conflict. I focus on human vulnerability as it manifests in sedimented assumptions about violence against women as endemic to male-female relations, thwarting possibilities of knowing the specific harms particular acts of rape enact well enough to render intelligible their far-reaching social-political-moral implications. Taking my point of departure from (...) Debra Bergoffen's call for 'a new epistemology of rape', I consider what such a call can amount to within an instituted social imaginary where male domination and female subordination are taken for granted—naturalized. (shrink)

In Tess of the d’Urbervilles, the innocent Tess is the object of Alec d’Urberville’s dishonorable intentions. Alec uses every wile he can think of to seduce the poor and ignorant Tess, who works keeping hens in his mother’s house: he flatters her, he impresses her with a show of wealth, he gives help to her family to win her gratitude, and he reacts with irritation and indignation when she nonetheless continues to repulse his advances, causing her to feel shame at (...) her own ingratitude and confusion as to what is right. Tess, anchored both by her own sense of virtue and her distrust of Alec’s character, continues to hold out until one fatal night when, through Alec’s machinations, they are lost together in a wood. At Tess’s insistence Alec leaves her to scout out the path home. When he returns, he finds her asleep under a tree. Hardy does not go into detail at this critical juncture. Rather, he reflects “why it was that upon this beautiful feminine tissue, sensitive as gossamer, and practically blank as snow as yet, there should have been traced such a coarse pattern as it was doomed to receive; why so often the coarse appropriates the finer thus, the wrong man the woman, the wrong woman the man, many thousand years of analytical philosophy have failed to explain to our sense of order.”. (shrink)

Standards of reasonability play an important role in some of the most difficult cases of rape. In recent years, the notion of the ``reasonable person'' has supplanted the historical concept of the ``reasonable man'' as the test of reasonability. Contemporary feminist critics like Catharine MacKinnon and Kim Lane Scheppele have challenged the notion of the reasonable person on the grounds that reasonability standards are ``gendered to the ground'' and so, in practice, the reasonable person is just the reasonable man in (...) a gender neutral guise. These critics call for the explicit employment of a ``reasonable woman'' standard for application to the actions of female victims of rape. But the arguments for abandoning a gender-neutral standard are double-edged and the employment of gendered standards of reasonability is likely to have implications that are neither foreseen by, nor acceptable to, advocates of such standards. Reasonable agent standards can be dropped, in favor of appeals to the notion of a ``reasonable demand (or expectation)'' by the law. However, if reasonable agent standards are to be retained, gendered versions of such standards are not preferable to gender-neutral ones. (shrink)

The paper is an application of the principle of just deserts (that is, retribution) to the setting of statutory penalties. The conclusion is that there should be no separate penalty for rape but that rape should be punished under the ordinary battery statutes. The argument has four parts. First, there is a description of the place of rape in a typical statutory scheme. Second, there is a consideration of possible justifications for giving rape the status it has in such a (...) typical scheme. All justifications appear to fail for one reason or another. Third, rape is analyzed as battery and the analysis is justified. This analysis includes an explanation of why it would be unjust to punish rape more severely than ordinary batteries. Last, there is a catalogue of some practical advantages to treating rape as battery (for example, simplifying proof of the crime). The paper takes the principle of just deserts (in the form I have elsewhere defended it) for granted, but does add substantially to the understanding of how to apply it. (shrink)

This Article is designed with two audiences in mind. On one hand, it is to enlighten sexual assault scholars and practitioners about the importance of sovereignty in the analysis of rape law and reform. On the other hand, to persuade Indian law scholars and practitioners that the development of sexual assault jurisprudence is central to the struggle for sovereignty. Ultimately, this Article argues that it is impossible to separate theories of indigenous self-determination from theories on sexual assault jurisprudence. It is (...) critical that a dual analysis be employed in both disciplines because sexual violence is so deeply imbedded in colonizing and genocidal policies. (shrink)

This book offers a critical feminist perspective on the widely debated topic of transitional justice and forgiveness. Louise Du Toit examines the phenomenon of rape with a feminist philosophical discourse concerning women’s or ‘feminine’ subjectivity and selfhood. She demonstrates how the hierarchical dichotomy of male active versus female passive sexuality – which obscures the true nature of rape – is embedded in the dominant western symbolic frame. Through a Hegelian and phenomenological reading of first-person accounts by rape victims, she excavates (...) an understanding of rape that also starts to open up a way out of the denial and destruction of female sexual subjectivity. (shrink)

Using material taken from contemporary feminist theory and also from work on human rights, it is argued that rape is a form of torture, and that it operates on powerful levels, both literally and metaphorically. Part of the argument is that rape has achieved the status it has as political force for exploitation because of strong beliefs about cultural reproduction and about the roles that women play in cultural reproduction.

Titian's Rape of Europa is highly praised for its luminous colors and sensual textures. But the painting has an overlooked dark side, namely that it eroticizes rape. I argue that this is an ethical defect that diminishes the painting aesthetically. This argument-that an artwork can be worse off qua work of art precisely because it is somehow ethically problematic-demonstrates that feminist concerns about art can play a legitimate role in art criticism and aesthetic appreciation.

The concept of evil has been an unpopular one in many recent Western political and ethical discourses. One way to justify this neglect is by pointing to the many problemswiththe concept of evil. The standard grievances brought against the very concept of evil include: that it has no proper place in secular political and ethical discourses; that it is a demonizing term of hatred that leads to violence; that it is necessarily linked with outdated notions of body and sexuality; and (...) that it only hinders rather than aids our ability to understand. I shall seek to argue in defence of the concept of evil against these charges. The upshot of this argument is that the language and concept of evil has a justified and important role to play in political and ethical discourses. (shrink)

: This essay provides a critical analysis of rape prevention since the 1980s. I argue that we must challenge rape prevention's habitual reinforcement of the notion that fear is a woman's best line of defense. I suggest changes that must be made in the anti-rape movement if we are to move past fear. Ultimately, I raise the question of what, if not vague threats and scare tactics, constitutes prevention.

One of the most ingenious arguments in all of Attic oratory is to be found in the speech Lysias wrote for Euphiletus to deliver at his trial for the murder of Eratosthenes . In his speech Euphiletus first describes to the court how his wife was seduced by Eratosthenes, then recounts how he discovered the affair, caught the adulterer in the act, and, despite an offer to pay compensation, slew him. Euphiletus defends his action by citing the law of the (...) Areopagus that whoever kills an adulterer caught in flagranti with his wife cannot be convicted of murder. Euphiletus further points out that the same exemption applies to the man who catches someone seducing his pallakē. If the lawgiver regarded the seduction of a pallakē as so serious that it merited the death penalty, Euphiletus argues, he must have regarded the seduction of a wife as even more reprehensible, deserving a penalty worse than death. (shrink)