Sex, rape, and shame

Boston University Law Review

Volumn 79, Issue 3, 1999, Pages 663-716

  Baker, Katharine K ^a  

^a NONE

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EID: 0033465437     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (376)

1. RICHARD A. POSNER, SEX AND REASON 384 (1992) (footnotes omitted).
2. Timothy Beneke studied numerous men who suggested they would use rape as a tool to subordinate or retaliate against women. For instance, one man explained, "If I were actually desperate enough to rape somebody . . . it would be a very spiteful thing, just being able to say, 'I have power over you and I can do anything I want with you.'" TIMOTHY BENEKE, MEN ON RAPE 44, 45-60 (1982). In their influential study of incarcerated rapists, Groth, Burgess and Holmstrom found that "in all cases of forcible rape three components are present: power, anger and sexuality . . . [but] power and anger dominate [] and . . . rape rather than being primarily an expression of sexual desire, is, in fact, the use of sexuality to express issues of power and anger." A. Nicholas Groth et al., Rape: Power, Anger and Sexuality, 134 AM. J. PSYCHIATRY 1239, 1240 (1977). For a legal discussion of the various factors that may motivate men to rape, see Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 HARV. L. REV. 563, 599-612 (1997).
3. Timothy Beneke studied numerous men who suggested they would use rape as a tool to subordinate or retaliate against women. For instance, one man explained, "If I were actually desperate enough to rape somebody . . . it would be a very spiteful thing, just being able to say, 'I have power over you and I can do anything I want with you.'" TIMOTHY BENEKE, MEN ON RAPE 44, 45-60 (1982). In their influential study of incarcerated rapists, Groth, Burgess and Holmstrom found that "in all cases of forcible rape three components are present: power, anger and sexuality . . . [but] power and anger dominate [] and . . . rape rather than being primarily an expression of sexual desire, is, in fact, the use of sexuality to express issues of power and anger." A. Nicholas Groth et al., Rape: Power, Anger and Sexuality, 134 AM. J. PSYCHIATRY 1239, 1240 (1977). For a legal discussion of the various factors that may motivate men to rape, see Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 HARV. L. REV. 563, 599-612 (1997).
4. Timothy Beneke studied numerous men who suggested they would use rape as a tool to subordinate or retaliate against women. For instance, one man explained, "If I were actually desperate enough to rape somebody . . . it would be a very spiteful thing, just being able to say, 'I have power over you and I can do anything I want with you.'" TIMOTHY BENEKE, MEN ON RAPE 44, 45-60 (1982). In their influential study of incarcerated rapists, Groth, Burgess and Holmstrom found that "in all cases of forcible rape three components are present: power, anger and sexuality . . . [but] power and anger dominate [] and . . . rape rather than being primarily an expression of sexual desire, is, in fact, the use of sexuality to express issues of power and anger." A. Nicholas Groth et al., Rape: Power, Anger and Sexuality, 134 AM. J. PSYCHIATRY 1239, 1240 (1977). For a legal discussion of the various factors that may motivate men to rape, see Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 HARV. L. REV. 563, 599-612 (1997).
5. Susan Estrich, Palm Beach Stories, 11 LAW & PHIL. 5, 32-33 (1992).
6. Catharine MacKinnon has suggested that "the wrong of rape has proved so difficult to define because the unquestionable starting point has been that rape is defined as distinct from intercourse, while for women it is difficult to distinguish the two under conditions of male dominance." CATHARINE MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 174 (1989) (footnote omitted). Although MacKinnon is usually considered much more radical than is Posner on matters of sex and rape, their positions on the fungibility of rape and sex are quite similar. MacKinnon is called a radical when she says that for women, sex is like rape. Posner is in the mainstream when he says that for men, rape is like sex. See, e.g., Robert Garcia, Rape, Lies & Videotape, 25 LOY. L.A. L. REV. 711, 751 (1992) (calling MacKinnon a radical feminist).
7. Catharine MacKinnon has suggested that "the wrong of rape has proved so difficult to define because the unquestionable starting point has been that rape is defined as distinct from intercourse, while for women it is difficult to distinguish the two under conditions of male dominance." CATHARINE MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 174 (1989) (footnote omitted). Although MacKinnon is usually considered much more radical than is Posner on matters of sex and rape, their positions on the fungibility of rape and sex are quite similar. MacKinnon is called a radical when she says that for women, sex is like rape. Posner is in the mainstream when he says that for men, rape is like sex. See, e.g., Robert Garcia, Rape, Lies & Videotape, 25 LOY. L.A. L. REV. 711, 751 (1992) (calling MacKinnon a radical feminist).
8. Despite widespread rape reform efforts, the conviction rate for rape has not increased. See CASSIA SPOHN & JULIE HORNEY, RAPE LAW REFORM: A GRASSROOTS REVOLUTION AND ITS IMPACT 160 (1992) (Legal reform has had "limited effects on reports of rape and the processing of rape cases. The reforms did not produce an increase in the likelihood of conviction and they produced an increase in reports and in the likelihood of indictment in only one of the six jurisdictions [studied]."); see also David P. Bryden & Sonja Lengnick, Rape in the Criminal Justice System, 87 J. CRIM. L. & CRIMINOLOGY 1194, 1283-94 (1997) (attributing the low impact of reform efforts, at least in part, to burden of proof obstacles, inadequate rape shield laws and unrealistic expectations).
9. Despite widespread rape reform efforts, the conviction rate for rape has not increased. See CASSIA SPOHN & JULIE HORNEY, RAPE LAW REFORM: A GRASSROOTS REVOLUTION AND ITS IMPACT 160 (1992) (Legal reform has had "limited effects on reports of rape and the processing of rape cases. The reforms did not produce an increase in the likelihood of conviction and they produced an increase in reports and in the likelihood of indictment in only one of the six jurisdictions [studied]."); see also David P. Bryden & Sonja Lengnick, Rape in the Criminal Justice System, 87 J. CRIM. L. & CRIMINOLOGY 1194, 1283-94 (1997) (attributing the low impact of reform efforts, at least in part, to burden of proof obstacles, inadequate rape shield laws and unrealistic expectations).
10. This is not true for some married men. In Oklahoma, for example, rape is defined as "intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator . . . ." OKLA. STAT. tit. 21, § 1111 (Supp. 1995); see also Lalenya Weintraub Siegel, Note, The Marital Rape Exemption: Evolution to Extinction 43 CLEV. ST. L. REV. 351, 368 (1995) (highlighting Oklahoma's treatment of marital rape); KY. REV. STAT. ANN. § 510.010(3) (Baldwin 1987) (requiring a husband and wife to be living apart for marital rape to be criminal).
11. This is not true for some married men. In Oklahoma, for example, rape is defined as "intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator . . . ." OKLA. STAT. tit. 21, § 1111 (Supp. 1995); see also Lalenya Weintraub Siegel, Note, The Marital Rape Exemption: Evolution to Extinction 43 CLEV. ST. L. REV. 351, 368 (1995) (highlighting Oklahoma's treatment of marital rape); KY. REV. STAT. ANN. § 510.010(3) (Baldwin 1987) (requiring a husband and wife to be living apart for marital rape to be criminal).
12. See infra Part II.A.
13. See infra Part III.A.
14. This is Lawrence Lessig's term. See Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 1010 (1995) (stating that to ambiguate something is to make the social meaning of that thing ambiguous); see also infra Part III.A (describing alternative sanctions as a way to ambiguate sexual consent and masculinity).
15. This is Lawrence Lessig's term. See Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 1010 (1995) (stating that to ambiguate something is to make the social meaning of that thing ambiguous); see also infra Part III.A (describing alternative sanctions as a way to ambiguate sexual consent and masculinity).
16. Margaret Hamilton & Jack Yee, Rape Knowledge and Propensity to Rape, 24 J. RES. PERSONALITY 111, 119 (1990). Hamilton and Yee were quick to point out, however, in ways Posner did not, that "the instrumental-aggression model of rape need not and, in fact, almost surely does not, apply to all rapists. . . . [This model cannot explain] the not infrequent occurrence of sexual assault involving extreme brutality." Id. at 120.
17. In other words, sexually aggressive males could be distinguished based on their desire for sex, not their desire or tendency toward aggressive behavior. See James Porter et al., Sexual and Aggressive Motives in Sexually Aggressive College Males, 21 ARCHIVES SEXUAL BEHAV. 457, 464 (1992) (finding minimal support for the rape as aggression hypothesis, but finding some support for the rape as sex hypothesis).
18. See Eugene Kanin, Date Rape: Unofficial Criminals and Victims, 9 VICTIMOLOGY 95, 100 (1984).
19. Id. "The majority [of rapists] indicated an initial response more akin to bewilderment or confusion, a response focused on the perplexing question, 'What was I doing wrong?.'" Id. It is important to again note that the disjunction between sexual performance and anger is not applicable to all men who rape. Many of Timothy Beneke's interviewees suggest that they would rape precisely because they were angry. See BENEKE, supra note 2.
20. Id. "The majority [of rapists] indicated an initial response more akin to bewilderment or confusion, a response focused on the perplexing question, 'What was I doing wrong?.'" Id. It is important to again note that the disjunction between sexual performance and anger is not applicable to all men who rape. Many of Timothy Beneke's interviewees suggest that they would rape precisely because they were angry. See BENEKE, supra note 2.
21. See R. Lance Shotland, A Theory of Courtship Rape: Part 2, 48 J. SOC. ISSUES 127, 130 (1992) (asserting that sexually aggressive males have more sexual experience than their non-aggressive counterparts); Eugene J. Kanin, Date Rapists: Differential Sexual Socialization, 14 ARCH. SEXUAL BEHAV. 219, 222-23 (1985) (asserting that date rapists tend to be more sexually active than other men); Neil M. Malamuth et al., The Characteristics of Aggressors Against Women: Testing a Model Using a National Sample of College Students, 59 J. CONSULTING & CLINICAL PSYCHOL. 670-81 (1991).
22. See R. Lance Shotland, A Theory of Courtship Rape: Part 2, 48 J. SOC. ISSUES 127, 130 (1992) (asserting that sexually aggressive males have more sexual experience than their non-aggressive counterparts); Eugene J. Kanin, Date Rapists: Differential Sexual Socialization, 14 ARCH. SEXUAL BEHAV. 219, 222-23 (1985) (asserting that date rapists tend to be more sexually active than other men); Neil M. Malamuth et al., The Characteristics of Aggressors Against Women: Testing a Model Using a National Sample of College Students, 59 J. CONSULTING & CLINICAL PSYCHOL. 670-81 (1991).
23. See R. Lance Shotland, A Theory of Courtship Rape: Part 2, 48 J. SOC. ISSUES 127, 130 (1992) (asserting that sexually aggressive males have more sexual experience than their non-aggressive counterparts); Eugene J. Kanin, Date Rapists: Differential Sexual Socialization, 14 ARCH. SEXUAL BEHAV. 219, 222-23 (1985) (asserting that date rapists tend to be more sexually active than other men); Neil M. Malamuth et al., The Characteristics of Aggressors Against Women: Testing a Model Using a National Sample of College Students, 59 J. CONSULTING & CLINICAL PSYCHOL. 670-81 (1991).
24. See Kanin, supra note 12, at 97; see also Shotland, supra note 14, at 130 (stating that date rapists utilize "surreptitious techniques with greater frequency to obtain sexual activity").
25. See Kanin, supra note 12, at 97; see also Shotland, supra note 14, at 130 (stating that date rapists utilize "surreptitious techniques with greater frequency to obtain sexual activity").
26. See Mary P. Koss et al., The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization in a National Sample of Higher Education Students, 55 J. CONSULTING & CLINICAL PSCYHOL. 162, 166 (1987) (reporting that 25.1% of men studied engaged in some form of sexual aggression); K. Rapoport & B.R. Burkhard, Personality and Attitudinal Characteristics of Sexually Coercive College Males, 93 J. ABNORMAL PSCYHOL. 216, 219 (1984) (reporting that 26% of men have ignored a women's protests at some time); John Briere & Neil Malamuth, Self-Reported Likelihood of Sexual Aggressive Behavior: Attitudinal Versus Sexual Explanations, 17 J. RES. PERSONALITY 315, 318 (1983) (reporting that 28% of subjects indicated some likelihood of both raping and using force).
27. See Mary P. Koss et al., The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization in a National Sample of Higher Education Students, 55 J. CONSULTING & CLINICAL PSCYHOL. 162, 166 (1987) (reporting that 25.1% of men studied engaged in some form of sexual aggression); K. Rapoport & B.R. Burkhard, Personality and Attitudinal Characteristics of Sexually Coercive College Males, 93 J. ABNORMAL PSCYHOL. 216, 219 (1984) (reporting that 26% of men have ignored a women's protests at some time); John Briere & Neil Malamuth, Self-Reported Likelihood of Sexual Aggressive Behavior: Attitudinal Versus Sexual Explanations, 17 J. RES. PERSONALITY 315, 318 (1983) (reporting that 28% of subjects indicated some likelihood of both raping and using force).
28. See Mary P. Koss et al., The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization in a National Sample of Higher Education Students, 55 J. CONSULTING & CLINICAL PSCYHOL. 162, 166 (1987) (reporting that 25.1% of men studied engaged in some form of sexual aggression); K. Rapoport & B.R. Burkhard, Personality and Attitudinal Characteristics of Sexually Coercive College Males, 93 J. ABNORMAL PSCYHOL. 216, 219 (1984) (reporting that 26% of men have ignored a women's protests at some time); John Briere & Neil Malamuth, Self-Reported Likelihood of Sexual Aggressive Behavior: Attitudinal Versus Sexual Explanations, 17 J. RES. PERSONALITY 315, 318 (1983) (reporting that 28% of subjects indicated some likelihood of both raping and using force).
29. Mary P. Koss & Cheryl J. Oros, Sexual Experiences Survey: A Research Instrument Investigating Sexual Aggression and Victimization, 50 J. CONSULTING & CLINICAL PSYCHOL. 455, 455-57 (1982).
30. See, e.g., Todd Tieger, Self-Rated Likelihood of Raping and the Social Perception of Rape, 15 J. RES. IN PERSONALITY 147, 154 (1981) (reporting that out of 172 males assured that they would not be caught, 64 indicated "some likelihood of raping").
31. See Crystal S. Mills & Barbara Granoff, Date and Acquaintance Rape Among a Sample of College Students, 37 SOC. WORK 504, 506 (1992).
32. See id.
33. Social science data confirm the prevalence of these beliefs: "In American society, sex is perceived as more important and enjoyable for men than for women. It is commonly believed that men have stronger sex drives than women do, and that they are difficult for men to control once aroused." Antonia Abbey, Misperception as an Antecedent of Acquaintance Rape, in ACQUAINTANCE RAPE: THE HIDDEN CRIME 104 (Andrea Parrot & Laurie Bechhofer eds., 1991) (citing D.M. Ruble and T.L. Ruble, Sex Stereotypes, in IN THE EYE OF THE BEHOLDER 188-251 (A.G. Miller ed., 1982)); see also Jacqueline D. Goodchilds & Gail L. Zellman, Sexual Signaling and Sexual Aggression in Adolescent Relationship, in PORNOGRAPHY AND SEXUAL AGGRESSION 233-43 (Neil Malamuth & Edward Donnerstein eds., 1984) (noting in a study of sexual signaling, the "most reprehensible action of the 11 behaviors in the eyes of our young people, male and female, is for the woman to change her mind"); Stevi Jackson, The Social Context of Rape: Sexual Scripts and Motivation, in RAPE AND SOCIETY 16 (Patricia Searles & Ronald J. Berger eds., 1995) (arguing that the popular belief in males' uncontrollable sex drives burdens women with the responsibility of limiting sexual activity). Lynne Henderson has explained how this biological compulsion theory has evolved into a "widely accepted cultural 'story' of heterosexuality that results in an unspoken 'rule' of male innocence and female guilt in the law." Lynne Henderson, Rape and Responsibility, 11 LAW & PHIL. 127, 130 (1992).
34. Social science data confirm the prevalence of these beliefs: "In American society, sex is perceived as more important and enjoyable for men than for women. It is commonly believed that men have stronger sex drives than women do, and that they are difficult for men to control once aroused." Antonia Abbey, Misperception as an Antecedent of Acquaintance Rape, in ACQUAINTANCE RAPE: THE HIDDEN CRIME 104 (Andrea Parrot & Laurie Bechhofer eds., 1991) (citing D.M. Ruble and T.L. Ruble, Sex Stereotypes, in IN THE EYE OF THE BEHOLDER 188-251 (A.G. Miller ed., 1982)); see also Jacqueline D. Goodchilds & Gail L. Zellman, Sexual Signaling and Sexual Aggression in Adolescent Relationship, in PORNOGRAPHY AND SEXUAL AGGRESSION 233-43 (Neil Malamuth & Edward Donnerstein eds., 1984) (noting in a study of sexual signaling, the "most reprehensible action of the 11 behaviors in the eyes of our young people, male and female, is for the woman to change her mind"); Stevi Jackson, The Social Context of Rape: Sexual Scripts and Motivation, in RAPE AND SOCIETY 16 (Patricia Searles & Ronald J. Berger eds., 1995) (arguing that the popular belief in males' uncontrollable sex drives burdens women with the responsibility of limiting sexual activity). Lynne Henderson has explained how this biological compulsion theory has evolved into a "widely accepted cultural 'story' of heterosexuality that results in an unspoken 'rule' of male innocence and female guilt in the law." Lynne Henderson, Rape and Responsibility, 11 LAW & PHIL. 127, 130 (1992).
35. Social science data confirm the prevalence of these beliefs: "In American society, sex is perceived as more important and enjoyable for men than for women. It is commonly believed that men have stronger sex drives than women do, and that they are difficult for men to control once aroused." Antonia Abbey, Misperception as an Antecedent of Acquaintance Rape, in ACQUAINTANCE RAPE: THE HIDDEN CRIME 104 (Andrea Parrot & Laurie Bechhofer eds., 1991) (citing D.M. Ruble and T.L. Ruble, Sex Stereotypes, in IN THE EYE OF THE BEHOLDER 188-251 (A.G. Miller ed., 1982)); see also Jacqueline D. Goodchilds & Gail L. Zellman, Sexual Signaling and Sexual Aggression in Adolescent Relationship, in PORNOGRAPHY AND SEXUAL AGGRESSION 233-43 (Neil Malamuth & Edward Donnerstein eds., 1984) (noting in a study of sexual signaling, the "most reprehensible action of the 11 behaviors in the eyes of our young people, male and female, is for the woman to change her mind"); Stevi Jackson, The Social Context of Rape: Sexual Scripts and Motivation, in RAPE AND SOCIETY 16 (Patricia Searles & Ronald J. Berger eds., 1995) (arguing that the popular belief in males' uncontrollable sex drives burdens women with the responsibility of limiting sexual activity). Lynne Henderson has explained how this biological compulsion theory has evolved into a "widely accepted cultural 'story' of heterosexuality that results in an unspoken 'rule' of male innocence and female guilt in the law." Lynne Henderson, Rape and Responsibility, 11 LAW & PHIL. 127, 130 (1992).
36. Social science data confirm the prevalence of these beliefs: "In American society, sex is perceived as more important and enjoyable for men than for women. It is commonly believed that men have stronger sex drives than women do, and that they are difficult for men to control once aroused." Antonia Abbey, Misperception as an Antecedent of Acquaintance Rape, in ACQUAINTANCE RAPE: THE HIDDEN CRIME 104 (Andrea Parrot & Laurie Bechhofer eds., 1991) (citing D.M. Ruble and T.L. Ruble, Sex Stereotypes, in IN THE EYE OF THE BEHOLDER 188-251 (A.G. Miller ed., 1982)); see also Jacqueline D. Goodchilds & Gail L. Zellman, Sexual Signaling and Sexual Aggression in Adolescent Relationship, in PORNOGRAPHY AND SEXUAL AGGRESSION 233-43 (Neil Malamuth & Edward Donnerstein eds., 1984) (noting in a study of sexual signaling, the "most reprehensible action of the 11 behaviors in the eyes of our young people, male and female, is for the woman to change her mind"); Stevi Jackson, The Social Context of Rape: Sexual Scripts and Motivation, in RAPE AND SOCIETY 16 (Patricia Searles & Ronald J. Berger eds., 1995) (arguing that the popular belief in males' uncontrollable sex drives burdens women with the responsibility of limiting sexual activity). Lynne Henderson has explained how this biological compulsion theory has evolved into a "widely accepted cultural 'story' of heterosexuality that results in an unspoken 'rule' of male innocence and female guilt in the law." Lynne Henderson, Rape and Responsibility, 11 LAW & PHIL. 127, 130 (1992).
37. Social science data confirm the prevalence of these beliefs: "In American society, sex is perceived as more important and enjoyable for men than for women. It is commonly believed that men have stronger sex drives than women do, and that they are difficult for men to control once aroused." Antonia Abbey, Misperception as an Antecedent of Acquaintance Rape, in ACQUAINTANCE RAPE: THE HIDDEN CRIME 104 (Andrea Parrot & Laurie Bechhofer eds., 1991) (citing D.M. Ruble and T.L. Ruble, Sex Stereotypes, in IN THE EYE OF THE BEHOLDER 188-251 (A.G. Miller ed., 1982)); see also Jacqueline D. Goodchilds & Gail L. Zellman, Sexual Signaling and Sexual Aggression in Adolescent Relationship, in PORNOGRAPHY AND SEXUAL AGGRESSION 233-43 (Neil Malamuth & Edward Donnerstein eds., 1984) (noting in a study of sexual signaling, the "most reprehensible action of the 11 behaviors in the eyes of our young people, male and female, is for the woman to change her mind"); Stevi Jackson, The Social Context of Rape: Sexual Scripts and Motivation, in RAPE AND SOCIETY 16 (Patricia Searles & Ronald J. Berger eds., 1995) (arguing that the popular belief in males' uncontrollable sex drives burdens women with the responsibility of limiting sexual activity). Lynne Henderson has explained how this biological compulsion theory has evolved into a "widely accepted cultural 'story' of heterosexuality that results in an unspoken 'rule' of male innocence and female guilt in the law." Lynne Henderson, Rape and Responsibility, 11 LAW & PHIL. 127, 130 (1992).
38. See, e.g., Craig T. Palmer, Human Rape: Adaptation or By-Product?" 28 J. OF SEX RES. 365-86 (1991); Randy Thornhill & Nancy Wilmsen Thornhill, The Evolutionary Psychology of Men's Coercive Sexuality, 15 BEHAV. & BRAIN SCI. 363-421 (1992) (discussing an evolutionary basis for coercive male sexuality); Barbara Smuts & Robert W. Smuts, Male Aggression and Sexual Coercion of Females in Nonhuman Primates and Other Mammals: Evidence and Theoretical Implications, 22 ADVANCES IN THE STUDY OF BEHAV. 1-63 (1993).
39. See, e.g., Craig T. Palmer, Human Rape: Adaptation or By-Product?" 28 J. OF SEX RES. 365-86 (1991); Randy Thornhill & Nancy Wilmsen Thornhill, The Evolutionary Psychology of Men's Coercive Sexuality, 15 BEHAV. & BRAIN SCI. 363-421 (1992) (discussing an evolutionary basis for coercive male sexuality); Barbara Smuts & Robert W. Smuts, Male Aggression and Sexual Coercion of Females in Nonhuman Primates and Other Mammals: Evidence and Theoretical Implications, 22 ADVANCES IN THE STUDY OF BEHAV. 1-63 (1993).
40. See, e.g., Craig T. Palmer, Human Rape: Adaptation or By-Product?" 28 J. OF SEX RES. 365-86 (1991); Randy Thornhill & Nancy Wilmsen Thornhill, The Evolutionary Psychology of Men's Coercive Sexuality, 15 BEHAV. & BRAIN SCI. 363-421 (1992) (discussing an evolutionary basis for coercive male sexuality); Barbara Smuts & Robert W. Smuts, Male Aggression and Sexual Coercion of Females in Nonhuman Primates and Other Mammals: Evidence and Theoretical Implications, 22 ADVANCES IN THE STUDY OF BEHAV. 1-63 (1993).
41. See supra notes 18-19 and accompanying text (discussing a study finding that most men would not rape even if assured they would get away with it).
42. For more on the distinctions between the biological inevitability of rape and the social constructions that encourage and to a certain extent condone rape, see Katharine K. Baker, What Rape Is and What It Ought Not To Be, 39 JURIMETRICS J. 233, 238-40 (1999).
43. For a thoughtful discussion of just how devoid of moral consideration the legal/sociobiological arguments are, see Robin West Sex, Reason, and a Taste for the Absurd, 81 GEO. L.J. 2413, 2416 (1993) (reviewing RICHARD POSNER, SEX AND REASON) ("[T]he great and indeed glaring flaw of [Posner's] book is moral, not conceptual or factual: it is a failure to criticize where criticism is due and a failure to condemn where condemnation is called for.").
44. See Kanin, supra note 12, at 97; Shotland, supra note 14, at 139.
45. See Kanin, supra note 12, at 97; Shotland, supra note 14, at 139.
46. See Baker, supra note 2, at 597-612.
47. This is not to say that hormones play no role in the young male sex drive. They do. But most young males have comparable hormone levels. Some men learn or aspire to control hormonal urges; some do not.
48. See Jennifer Allen, Boys: Hanging with the Spur Posse, ROLLING STONE, July 8-22, 1993, at 54, 55, 63, 128.
49. A Lexis "News" search for "Spur Posse" generates 440 hits.
50. See, e.g., Michelle Oberman, Turning Girls into Women: Re-Evaluating Modern Statutory Rape Law, 85 J. CRIM. L. & CRIMINOLOGY 15, 15-16 (1994); Deborah W. Denno, Gender, Crime, and the Criminal Law Defenses, 85 J. CRIM. L. & CRIMINOLOGY 80, 133 n.268 (1994); Jane L. Dolkart, Hostile Environment Harassment: Equality, Objectivity and the Shaping of Legal Standards, 43 EMORY L.J. 151, 178, n.100 (1994); Linda J. Lacey, We Have Nothing to Fear But Gender Stereotypes: Of Katie and Amy and "Babe Feminism," 80 CORNELL L. REV. 612, 626 (1995) (Book Review of KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR AND FEMINISM ON CAMPUS (1993)).
51. See, e.g., Michelle Oberman, Turning Girls into Women: Re-Evaluating Modern Statutory Rape Law, 85 J. CRIM. L. & CRIMINOLOGY 15, 15-16 (1994); Deborah W. Denno, Gender, Crime, and the Criminal Law Defenses, 85 J. CRIM. L. & CRIMINOLOGY 80, 133 n.268 (1994); Jane L. Dolkart, Hostile Environment Harassment: Equality, Objectivity and the Shaping of Legal Standards, 43 EMORY L.J. 151, 178, n.100 (1994); Linda J. Lacey, We Have Nothing to Fear But Gender Stereotypes: Of Katie and Amy and "Babe Feminism," 80 CORNELL L. REV. 612, 626 (1995) (Book Review of KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR AND FEMINISM ON CAMPUS (1993)).
52. See, e.g., Michelle Oberman, Turning Girls into Women: Re-Evaluating Modern Statutory Rape Law, 85 J. CRIM. L. & CRIMINOLOGY 15, 15-16 (1994); Deborah W. Denno, Gender, Crime, and the Criminal Law Defenses, 85 J. CRIM. L. & CRIMINOLOGY 80, 133 n.268 (1994); Jane L. Dolkart, Hostile Environment Harassment: Equality, Objectivity and the Shaping of Legal Standards, 43 EMORY L.J. 151, 178, n.100 (1994); Linda J. Lacey, We Have Nothing to Fear But Gender Stereotypes: Of Katie and Amy and "Babe Feminism," 80 CORNELL L. REV. 612, 626 (1995) (Book Review of KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR AND FEMINISM ON CAMPUS (1993)).
53. See, e.g., Michelle Oberman, Turning Girls into Women: Re-Evaluating Modern Statutory Rape Law, 85 J. CRIM. L. & CRIMINOLOGY 15, 15-16 (1994); Deborah W. Denno, Gender, Crime, and the Criminal Law Defenses, 85 J. CRIM. L. & CRIMINOLOGY 80, 133 n.268 (1994); Jane L. Dolkart, Hostile Environment Harassment: Equality, Objectivity and the Shaping of Legal Standards, 43 EMORY L.J. 151, 178, n.100 (1994); Linda J. Lacey, We Have Nothing to Fear But Gender Stereotypes: Of Katie and Amy and "Babe Feminism," 80 CORNELL L. REV. 612, 626 (1995) (Book Review of KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR AND FEMINISM ON CAMPUS (1993)).
54. The New York Times Magazine reported that Warren Beatty, world-renowned movie star and "lady's man," was given the credibility he needed in the African-American rap community to make the movie Bulworth because he was seen as a "Mack" or "Mack Daddy." See Lynn Hirschberg, Warren Beatty Is Trying to Say Something, N.Y. TIMES MAG., May 10, 1998, at 20. As Russell Simmons, who runs Def Jam Records, explained, this means that "he's been with a lot of women." Id. Because this 61 year old, white movie star had had sex with a lot of women, young, black men looked up to him. See id.
55. Kanin, supra note 12, at 97.
56. See Shotland, supra note 14, at 139.
57. This story is taken from Andrea Parrot, Institutional Responses: How Can Acquaintance Rape Be Prevented, in ACQUAINTANCE RAPE, supra note 21, at 355, 363-64 (using the example as an illustration how low self-esteem may drive date rapists).
58. See id. The very idea that a fraternity could have such an initiation requirement suggests that they are using sexual prowess or experience as a kind of currency or accomplishment.
59. NATHAN MCCALL, MAKES ME WANNA HOLLER 47 (1994).
60. For a description of the actual event, see Lynn S. Chancer, New Bedford, Massachusetts, March 6, 1983 - March 22, 1984: The "Before and After" of a Group Rape, 1 GENDER & SOC'Y 239, 244-45 (1987) (describing the New Bedford rape in detail and studying the community's reaction to the rape).
61. Kanin, supra note 12, at 97.
62. Id. at 99.
63. Richard H. McAdams, The Origin, Development and Regulation of Norms, 96 MICH. L. REV. 338, 342 (1997).
64. See id. at 355.
65. See id. at 376.
66. See id. at 382-83.
67. See W. at 383.
68. One of the hallmarks of internalized norms is that in violating them, one incurs the psychic costs of guilt or inadequacy, regardless of the existence of external sanction. See id. In contrast, one can violate a behavior specific norm without feeling guilty (although one still runs the risk of losing the esteem of others). See id.
69. See id.
70. See id.
71. See id.
72. McAdams uses the example of drunk driving. See id. at 385. Thirty years ago, being a loyal friend (the internalized norm) meant defending one's friends ability to drive home after a few too many beers. See id. Letting your friend drive was an act of loyalty. See id. Today, taking one's friend's keys is often seen as the act of loyalty. See id. How we interpret the act of taking someone's keys depends on how the internalized norm gives meaning to that act.
73. As Dan Kahan reminds us, "actions have meanings as well as consequences." Dan C. Kahan, What Do Alternative Sanctions Mean, 63 U. CHI. L. REV. 591, 597 (1996).
74. 52 For instance, when the cost of having extramarital sex included significantly greater risks of financial responsibility for children and when other cultural norms more strongly discouraged premarital sex, the frequency of one's sexual encounters may not have as readily translated into an affirmation of the masculinity norm. Or, even if they did, the affirmation of the masculinity norm may have been offset by the operation of norms encouraging responsibility. In a culture in which one can engage in premarital sex without being considered either irresponsible or immoral, neither of those offsetting norms is likely to be very effective in counterbalancing the masculinity norm.
75. JUDITH LEWIS HERMAN, Considering Sex Offenders: A Model of Addiction, in RAPE AND SOCIETY, supra note 21, at 74, 77; see also James V.P. Check & Neil Malamuth, An Empirical Assessment of Some Feminist Hypotheses About Rape, 8 INT'L. J. WOMEN'S STUD. 414, 415 (1985); M.P. KOSS, Hidden Rape: Incidence, Prevalence, and Descriptive Characteristics of Sexual Aggression and Victimization in a National Sample of College Students in 2 SEXUAL ASSAULT 3-25 (A.W. Burgess ed., 1988).
76. JUDITH LEWIS HERMAN, Considering Sex Offenders: A Model of Addiction, in RAPE AND SOCIETY, supra note 21, at 74, 77; see also James V.P. Check & Neil Malamuth, An Empirical Assessment of Some Feminist Hypotheses About Rape, 8 INT'L. J. WOMEN'S STUD. 414, 415 (1985); M.P. KOSS, Hidden Rape: Incidence, Prevalence, and Descriptive Characteristics of Sexual Aggression and Victimization in a National Sample of College Students in 2 SEXUAL ASSAULT 3-25 (A.W. Burgess ed., 1988).
77. JUDITH LEWIS HERMAN, Considering Sex Offenders: A Model of Addiction, in RAPE AND SOCIETY, supra note 21, at 74, 77; see also James V.P. Check & Neil Malamuth, An Empirical Assessment of Some Feminist Hypotheses About Rape, 8 INT'L. J. WOMEN'S STUD. 414, 415 (1985); M.P. KOSS, Hidden Rape: Incidence, Prevalence, and Descriptive Characteristics of Sexual Aggression and Victimization in a National Sample of College Students in 2 SEXUAL ASSAULT 3-25 (A.W. Burgess ed., 1988).
78. See LARRY BARON & MURRAY A. STRAUS, FOUR THEORIES OF RAPE IN AMERICAN SOCIETY: A STATE-LEVEL ANALYSIS 185 (1989) (arguing that study results support the notion that "gender inequality contributes to rape").
79. See Shotland, supra note 14, at 139 (citing research demonstrating that sexually aggressive males are more likely to have rape-supportive beliefs than sexually non-aggressive males). An acceptance of sex-role stereotypes also correlates to an increased tendency to blame the victim in date rape situations.
80. See Cynthia E. Willis, The Effect of Sex Role Stereotype Victim and Defendant Race, and Prior Relationship on Rape Culpability Attributions, 26 SEX ROLES 213, 223 (1992). Studies demonstrate that "individuals with female sex-role orientations, and those holding profeminine attitudes have more sympathetic attitudes towards victims of rape than do individuals with masculine sex-role orientations and those with restrictive attitudes about sex-roles."
81. Susan Bell et al., Understanding Attributions of Blame in Stranger Rape and Date Rape Situations: An Examination of Gender, Race, Identification, and Students' Social Perceptions of Rape Victims, 24 J. APPLIED SOC. PSYCHOL. 1719, 1720 (1994) (citations omitted).
82. SANDRA LIPSITZ BEM, THE LENSES OF GENDER: TRANSFORMING THE DEBATE ON SEXUAL EQUALITY 163 (1993); see also Jackson, supra note 21, at 19. ("From the beginning, boys learn to be independent, to seek success actively through their own efforts and abilities while girls are encouraged to be dependent, to seek success passively througn pleasing others."); Robin Warshaw & Andrea Parrot, The Contribution of Sex-Role Socialization to Acquaintance Rape, in ACQUAINTANCE RAPE, supra note 21, at 75. ("From their socialization in childhood and adolescence, [men and women] develop[] different goals related to sexuality . . . . [M]en are supposed to single-mindedly go after sexual intercourse with a female, regardless of how they do it. . . . [W]omen should passively acquiesce or use any strategy to avoid sexual intercourse.). Historically, the gendered nature of aggressor/recipient roles has transcended biological sex. See ALLEN G. JOHNSON, THE GENDER KNOT 70 (1997) (discussing imposition of these roles). Thus, lesbian couples were bi-polarized as butch (aggressor) and femme (recipient). See id. Ancient Greek and Roman men were able to have sex with other men without sacrificing their masculinity as long as they played the active-dominant role in the sexual encounter. See id. This link between masculinity and aggression is seen today in prison populations in which status, power and masculinity are associated with the sexual aggressor despite the fact that he often engages in behavior (sexual relations with another man) that is often seen as very non-masculine. See id.
83. SANDRA LIPSITZ BEM, THE LENSES OF GENDER: TRANSFORMING THE DEBATE ON SEXUAL EQUALITY 163 (1993); see also Jackson, supra note 21, at 19. ("From the beginning, boys learn to be independent, to seek success actively through their own efforts and abilities while girls are encouraged to be dependent, to seek success passively througn pleasing others."); Robin Warshaw & Andrea Parrot, The Contribution of Sex-Role Socialization to Acquaintance Rape, in ACQUAINTANCE RAPE, supra note 21, at 75. ("From their socialization in childhood and adolescence, [men and women] develop[] different goals related to sexuality . . . . [M]en are supposed to single-mindedly go after sexual intercourse with a female, regardless of how they do it. . . . [W]omen should passively acquiesce or use any strategy to avoid sexual intercourse.). Historically, the gendered nature of aggressor/recipient roles has transcended biological sex. See ALLEN G. JOHNSON, THE GENDER KNOT 70 (1997) (discussing imposition of these roles). Thus, lesbian couples were bi-polarized as butch (aggressor) and femme (recipient). See id. Ancient Greek and Roman men were able to have sex with other men without sacrificing their masculinity as long as they played the active-dominant role in the sexual encounter. See id. This link between masculinity and aggression is seen today in prison populations in which status, power and masculinity are associated with the sexual aggressor despite the fact that he often engages in behavior (sexual relations with another man) that is often seen as very non-masculine. See id.
84. SANDRA LIPSITZ BEM, THE LENSES OF GENDER: TRANSFORMING THE DEBATE ON SEXUAL EQUALITY 163 (1993); see also Jackson, supra note 21, at 19. ("From the beginning, boys learn to be independent, to seek success actively through their own efforts and abilities while girls are encouraged to be dependent, to seek success passively througn pleasing others."); Robin Warshaw & Andrea Parrot, The Contribution of Sex-Role Socialization to Acquaintance Rape, in ACQUAINTANCE RAPE, supra note 21, at 75. ("From their socialization in childhood and adolescence, [men and women] develop[] different goals related to sexuality . . . . [M]en are supposed to single-mindedly go after sexual intercourse with a female, regardless of how they do it. . . . [W]omen should passively acquiesce or use any strategy to avoid sexual intercourse.). Historically, the gendered nature of aggressor/recipient roles has transcended biological sex. See ALLEN G. JOHNSON, THE GENDER KNOT 70 (1997) (discussing imposition of these roles). Thus, lesbian couples were bi-polarized as butch (aggressor) and femme (recipient). See id. Ancient Greek and Roman men were able to have sex with other men without sacrificing their masculinity as long as they played the active-dominant role in the sexual encounter. See id. This link between masculinity and aggression is seen today in prison populations in which status, power and masculinity are associated with the sexual aggressor despite the fact that he often engages in behavior (sexual relations with another man) that is often seen as very non-masculine. See id.
85. SANDRA LIPSITZ BEM, THE LENSES OF GENDER: TRANSFORMING THE DEBATE ON SEXUAL EQUALITY 163 (1993); see also Jackson, supra note 21, at 19. ("From the beginning, boys learn to be independent, to seek success actively through their own efforts and abilities while girls are encouraged to be dependent, to seek success passively througn pleasing others."); Robin Warshaw & Andrea Parrot, The Contribution of Sex-Role Socialization to Acquaintance Rape, in ACQUAINTANCE RAPE, supra note 21, at 75. ("From their socialization in childhood and adolescence, [men and women] develop[] different goals related to sexuality . . . . [M]en are supposed to single-mindedly go after sexual intercourse with a female, regardless of how they do it. . . . [W]omen should passively acquiesce or use any strategy to avoid sexual intercourse.). Historically, the gendered nature of aggressor/recipient roles has transcended biological sex. See ALLEN G. JOHNSON, THE GENDER KNOT 70 (1997) (discussing imposition of these roles). Thus, lesbian couples were bi-polarized as butch (aggressor) and femme (recipient). See id. Ancient Greek and Roman men were able to have sex with other men without sacrificing their masculinity as long as they played the active-dominant role in the sexual encounter. See id. This link between masculinity and aggression is seen today in prison populations in which status, power and masculinity are associated with the sexual aggressor despite the fact that he often engages in behavior (sexual relations with another man) that is often seen as very non-masculine. See id.
86. See People v. Cruise, 266 N.E.2d 109, 110 (Ill. App. Ct. 1971) (indicating that friend who did not join his friends in raping a woman in the back of a car was teased by the defendants for not joining).
87. I use the term gender here to refer to the social constructions of masculine and feminine.
88. See BEM, supra note 56, at 82.
89. See id. at 86 (describing "gender inversion" which was defined as having cross-gender desires); see also JOHN BANCROFT, THE RELATIONSHIP BETWEEN GENDER IDENTITY AND SEXUAL BEHAVIOR: SOME CLINICAL ASPECTS IN GENDER DIFFERENCES: THEIR ONTOGENY AND SIGNIFICANCE 57 (C. Ounsted & D. Taylor eds., 1972) ("There is a reciprocal relationship between [sexual] identity and behavior and vice versa.").
90. See id. at 86 (describing "gender inversion" which was defined as having cross-gender desires); see also JOHN BANCROFT, THE RELATIONSHIP BETWEEN GENDER IDENTITY AND SEXUAL BEHAVIOR: SOME CLINICAL ASPECTS IN GENDER DIFFERENCES: THEIR ONTOGENY AND SIGNIFICANCE 57 (C. Ounsted & D. Taylor eds., 1972) ("There is a reciprocal relationship between [sexual] identity and behavior and vice versa.").
91. As Kathryn Franke writes, "we are left with a conception of male and female as not only one another's opposite, but as one another's contradiction." Kathryn Franke, The Central Mistake of Sex Discrimination Laws: The Disaggregation of Sex from Gender, 144 U. PA. L. REV. 1, 50 (1995).
92. See BEM, supra note 56, at 165 (stating that "heterosexuality has been defined as the sine qua non of psychological normality"). People tend to presume that masculine men are straight, effeminate men are gay, see POSNER, supra note 1, at 122-23, and non-feminine women are lesbians. Male students at one Canadian University that tried to institute a "No means no" campaign, countered with signs that read "no means dyke." See Henderson, supra note 21, at 155. Judith Butler points out that Freud's theories of sexuality relied heavily on a link between (hetero)sexuality and gender. See JUDITH BUTLER, GENDER TROUBLE 60-61 (1990). For Freud, the masculine disposition was, by definition, oriented toward the mother as an object of sexual love and the feminine disposition was, by definition, oriented toward the father as an object of sexual love. See id. For some exceptions that prove the rule, see supra note 56 (discussing how the masculine/feminine roles operate even in some same-sex relationships).
93. See BEM, supra note 56, at 165 (stating that "heterosexuality has been defined as the sine qua non of psychological normality"). People tend to presume that masculine men are straight, effeminate men are gay, see POSNER, supra note 1, at 122-23, and non-feminine women are lesbians. Male students at one Canadian University that tried to institute a "No means no" campaign, countered with signs that read "no means dyke." See Henderson, supra note 21, at 155. Judith Butler points out that Freud's theories of sexuality relied heavily on a link between (hetero)sexuality and gender. See JUDITH BUTLER, GENDER TROUBLE 60-61 (1990). For Freud, the masculine disposition was, by definition, oriented toward the mother as an object of sexual love and the feminine disposition was, by definition, oriented toward the father as an object of sexual love. See id. For some exceptions that prove the rule, see supra note 56 (discussing how the masculine/feminine roles operate even in some same-sex relationships).
94. See BEM, supra note 56, at 165 (stating that "heterosexuality has been defined as the sine qua non of psychological normality"). People tend to presume that masculine men are straight, effeminate men are gay, see POSNER, supra note 1, at 122-23, and non-feminine women are lesbians. Male students at one Canadian University that tried to institute a "No means no" campaign, countered with signs that read "no means dyke." See Henderson, supra note 21, at 155. Judith Butler points out that Freud's theories of sexuality relied heavily on a link between (hetero)sexuality and gender. See JUDITH BUTLER, GENDER TROUBLE 60-61 (1990). For Freud, the masculine disposition was, by definition, oriented toward the mother as an object of sexual love and the feminine disposition was, by definition, oriented toward the father as an object of sexual love. See id. For some exceptions that prove the rule, see supra note 56 (discussing how the masculine/feminine roles operate even in some same-sex relationships).
95. Jackson, supra note 21, at 18-19.
96. As Sandra Bem writes: [T]he cultural definition of a real man makes males feel much more insecure about the adequacy of their gender than females, for the definition unrealistically requires them not only to suppress every impulse with even the slightest hint of femininity but also to attain the kind of power and privilege in their social community that will produce respectful deference in women and less powerful men. BEM, supra note 56, at 166.
97. Fraternity men report having forced intercourse more than men involved in other organizations (like student government) or men not affiliated with any organization. See J. Garrett-Gooding & R. Senter, Attitudes and Acts of Sexual Aggression on a University Campus, 59 SOC. INQUIRY 348, 366 (1987) (reporting the results of their study and hypothesizing that this result has to do with traditional attitudes about sex roles). Athletes at NCAA-affiliated schools were reported to the police for rape 38% more often than non-athletes. See R. Hoffman, Rape and the College Athlete: Part One, PHILADELPHIA DAILY NEWS, Mar. 17, 1986, at 104.
98. Fraternity men report having forced intercourse more than men involved in other organizations (like student government) or men not affiliated with any organization. See J. Garrett-Gooding & R. Senter, Attitudes and Acts of Sexual Aggression on a University Campus, 59 SOC. INQUIRY 348, 366 (1987) (reporting the results of their study and hypothesizing that this result has to do with traditional attitudes about sex roles). Athletes at NCAA-affiliated schools were reported to the police for rape 38% more often than non-athletes. See R. Hoffman, Rape and the College Athlete: Part One, PHILADELPHIA DAILY NEWS, Mar. 17, 1986, at 104.
99. See supra notes 26-42 and accompanying text. It may be that the extra need to demonstrate their masculinity stems from a need to dispel any notion that the cohesiveness of the group is an indication of same sex attraction. To overcome any assumption that they might actually be attracted to each other and to make sure that they are worthy of the esteem that comes with masculinity, these men need to prove their heterosexuality.
100. See BEM, supra note 56, at 166.
101. See id. at 163.
102. See id. at 65 ("Throughout the history of Western culture, three beliefs about women and men have prevailed: that they have fundamentally different psychological and sexual natures, that men are inherently the dominant or superior sex, and that both male-female difference and male dominance are natural.");
103. JUDITH LORBER, PARADOXES OF GENDER 26-27 (1994) (discussing the importance society places on distinguishing the gender statuses of "man" and "woman");
104. see also THOMAS WALTER LAQUER, MAKING SEX 8 (1990) ("In pre-enlightenment times gender . . . mattered a great deal and was part of the order of things.").
105. As Marjorie Gerber has written about the history of fashion, "[t]he ideal scenario - from the viewpoint of the regulators - was one in which a person's . . . gender . . . in the world could be read, without ambiguity and uncertainty." MARJORIE BERGER, VESTED INTERESTS: CROSS DRESSING AND CULTURAL ANXIETY 26 (1992).
106. For instance, according to a 1989 New York Times story, prior to World War I, pink was the color of choice for boy babies because it was a stronger color than blue, which was seen as delicate and therefore more appropriate for baby girls. See Sandra Salman, When an It is Labeled a He or She, N.Y. TIMES, Nov. 16, 1989.
107. As Freud wrote in The Psychology of Women, "[m]ale or female is the first differentiation that you make when you meet another human being, and you are used to making that distinction with absolute certainty." Sigmund Freud, The Psychology of Women, in NEW INTRODUCTORY LECTURES ON PSYCHO-ANALYSIS 153, 155 (W.J.H. Sprott, trans., 1933).
108. Consider the reaction that most people have to transvestites. Or consider how eagerly people want to know whether the short-haired, leather-clad, deep-voiced person who could be either a man or a woman is a man or a woman. See LORBER, supra note 69, at 26 (commenting that when gender differences between men and women blur, society develops a sameness taboo). Men who fail to differentiate may make people feel the most uncomfortable because when a man fails to endorse the gender system, he questions not only the applicability of gender categories, but the status system that equates masculinity with power. See BEM, supra note 56, at 166 (noting that people's aversion toward homosexuality implicates males more than females because of the cultural definition of what it is to be a real man).
109. Consider the reaction that most people have to transvestites. Or consider how eagerly people want to know whether the short-haired, leather-clad, deep-voiced person who could be either a man or a woman is a man or a woman. See LORBER, supra note 69, at 26 (commenting that when gender differences between men and women blur, society develops a sameness taboo). Men who fail to differentiate may make people feel the most uncomfortable because when a man fails to endorse the gender system, he questions not only the applicability of gender categories, but the status system that equates masculinity with power. See BEM, supra note 56, at 166 (noting that people's aversion toward homosexuality implicates males more than females because of the cultural definition of what it is to be a real man).
110. See BEM, supra note 56, at 148 (noting most people see conformity to society's gender scripts as normal and natural).
111. LAQUER, supra note 69, at 8. Moreover, to the extent that sociobiological or hormonal urge theories are widely accepted, they confirm that men's greater need for sex and men's disregard for consent is natural and inevitable.
112. As Lynne Henderson explains, men's "biological" need has been incorporated into a cultural script of male innocence (because they cannot control their hormones) and female guilt (because they can control the behavior that triggers the hormones.) See Henderson, supra note 21, at 132-44.
113. BEM, supra note 56, at 166.
114. Feminists - and others - may find this rather pathetic depiction of the male psyche to be egregiously apologist or just inexplicably blind to the real physical and material power that men have over women. It is important for feminists to understand the source and extent of common sympathy for rapists, however, because it is that sympathy that explains the number of unconvicted date rapists.
115. See LORBER, supra note 69, at 10 (asserting that changes in society require a reordering of the organizing principles of social life, or acknowledgment of hidden assumptions about gender, and awareness of the effects of gender labels). For discussion of legal reforms aimed at breaking down the links between sex, sexual orientation and gender, see Franke, supra note 61; (focusing on how to break down the bipolarization of biological sex); Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 93-94 (1995) (focusing on breaking down the polarization of gender); Francisco Valdez, Queers, Sissies, Dykes and Tomboys: Deconstructing the Conflation of "Sex", "Gender" and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1, 301-41 (1995) (focusing on breaking down the polarization of sexual orientation).
116. See LORBER, supra note 69, at 10 (asserting that changes in society require a reordering of the organizing principles of social life, or acknowledgment of hidden assumptions about gender, and awareness of the effects of gender labels). For discussion of legal reforms aimed at breaking down the links between sex, sexual orientation and gender, see Franke, supra note 61; (focusing on how to break down the bipolarization of biological sex); Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 93-94 (1995) (focusing on breaking down the polarization of gender); Francisco Valdez, Queers, Sissies, Dykes and Tomboys: Deconstructing the Conflation of "Sex", "Gender" and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1, 301-41 (1995) (focusing on breaking down the polarization of sexual orientation).
117. See LORBER, supra note 69, at 10 (asserting that changes in society require a reordering of the organizing principles of social life, or acknowledgment of hidden assumptions about gender, and awareness of the effects of gender labels). For discussion of legal reforms aimed at breaking down the links between sex, sexual orientation and gender, see Franke, supra note 61; (focusing on how to break down the bipolarization of biological sex); Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 93-94 (1995) (focusing on breaking down the polarization of gender); Francisco Valdez, Queers, Sissies, Dykes and Tomboys: Deconstructing the Conflation of "Sex", "Gender" and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1, 301-41 (1995) (focusing on breaking down the polarization of sexual orientation).
118. See LORBER, supra note 69, at 10 (asserting that changes in society require a reordering of the organizing principles of social life, or acknowledgment of hidden assumptions about gender, and awareness of the effects of gender labels). For discussion of legal reforms aimed at breaking down the links between sex, sexual orientation and gender, see Franke, supra note 61; (focusing on how to break down the bipolarization of biological sex); Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 93-94 (1995) (focusing on breaking down the polarization of gender); Francisco Valdez, Queers, Sissies, Dykes and Tomboys: Deconstructing the Conflation of "Sex", "Gender" and "Sexual Orientation" in Euro-American Law and Society, 83 CAL. L. REV. 1, 301-41 (1995) (focusing on breaking down the polarization of sexual orientation).
119. In 1996, 307,000 women were the victim of rape, attempted rape, or sexual assault. See Rape Abuse and Incest National Network (visited Mar. 3, 1999) 〈http: //feminist.com/raim.htm〉 (citing Rational Crime Victimization Survey, Bureau of Justice Statistics, United States Dept. of Justice, 1997).
120. Jacquelyn W. White & John A Humphrey, Young People's Attitudes Toward Acquaintance Rape, in ACQUAINTANCE RAPE, supra note 21, at 43, 47 (citations omitted).
121. Id.
122. See JOYCE E. WILLIAMS & KAREN A. HOLMES, THE SECOND ASSAULT: RAPE AND PUBLIC ATTITUDES 115 (1981).
123. Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 457 (1997).
124. Most of us would answer "no" to the question, "would you murder or steal if you knew you could get away with it?" As John Brathwaite writes, "conscience is a much more powerful weapon to control misbehavior than punishment." JOHN BRATHWAITE, CRIME, SHAME AND REINTEGRATION 71 (1989).
125. "Individuals thus refrain from criminality not because they fear the threatened punishment but because they have no desire to engage in such behavior; and they have no desire to engage in such behavior because they know it is deemed worthy of criminal punishment." Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in the Criminal Law, 96 COLUM. L. REV 269, 356 (1996).
126. See Brian Bix, H.L.A. Hart & the Hermeneutic Turn in Legal Theory, 52 SMU L. REV. 167, 174 (1999) (asserting that people obey the speed limit out of fear of the penalty they might face if they are caught).
127. Kanin, supra note 12, at 96.
128. See id. The men interviewed by Kanin thought that fines, not imprisonment, might be the appropriate penalty for their actions.
129. Neil M. Malamuth & Karol Dean, Attraction to Sexual Aggression, in ACQUAINTANCE RAPE, supra note 21, at 229, 234.
130. The men questioned by Malamuth and Dean defined forced sex as something different than rape. See id. at 1234 (noting that the percentage of men likely to engage in the behavior differed depending on whether the question defined the conduct as forced sex or rape). One observer of a gang rape trial in Michigan demonstrates how people believe rape to be something other than what the law defines it to be: "I don't believe she was raped . . . I believe they ran a train on her." Chris O'Sullivan, Acquaintance Gang Rape on Campus, in ACQUAINTANCE RAPE, supra note 21, at 140. A Los Angeles study found that "teenagers understood the difference between consensual and nonconsensual sex, [but] they were frequently reluctant to apply the label 'rape' to the examples of forced sexual relations. . . ." White & Humphrey, supra note 80, at 46 (citing Jacqueline D. Goodchilds et al., Adolescents and Their Perceptions of Sexual Interactions, in 2 RAPE AND SEXUAL ASSAULT 245, 268 (Ann Wolbert Burgess ed., 1988)).
131. The men questioned by Malamuth and Dean defined forced sex as something different than rape. See id. at 1234 (noting that the percentage of men likely to engage in the behavior differed depending on whether the question defined the conduct as forced sex or rape). One observer of a gang rape trial in Michigan demonstrates how people believe rape to be something other than what the law defines it to be: "I don't believe she was raped . . . I believe they ran a train on her." Chris O'Sullivan, Acquaintance Gang Rape on Campus, in ACQUAINTANCE RAPE, supra note 21, at 140. A Los Angeles study found that "teenagers understood the difference between consensual and nonconsensual sex, [but] they were frequently reluctant to apply the label 'rape' to the examples of forced sexual relations. . . ." White & Humphrey, supra note 80, at 46 (citing Jacqueline D. Goodchilds et al., Adolescents and Their Perceptions of Sexual Interactions, in 2 RAPE AND SEXUAL ASSAULT 245, 268 (Ann Wolbert Burgess ed., 1988)).
132. The men questioned by Malamuth and Dean defined forced sex as something different than rape. See id. at 1234 (noting that the percentage of men likely to engage in the behavior differed depending on whether the question defined the conduct as forced sex or rape). One observer of a gang rape trial in Michigan demonstrates how people believe rape to be something other than what the law defines it to be: "I don't believe she was raped . . . I believe they ran a train on her." Chris O'Sullivan, Acquaintance Gang Rape on Campus, in ACQUAINTANCE RAPE, supra note 21, at 140. A Los Angeles study found that "teenagers understood the difference between consensual and nonconsensual sex, [but] they were frequently reluctant to apply the label 'rape' to the examples of forced sexual relations. . . ." White & Humphrey, supra note 80, at 46 (citing Jacqueline D. Goodchilds et al., Adolescents and Their Perceptions of Sexual Interactions, in 2 RAPE AND SEXUAL ASSAULT 245, 268 (Ann Wolbert Burgess ed., 1988)).
133. The men questioned by Malamuth and Dean defined forced sex as something different than rape. See id. at 1234 (noting that the percentage of men likely to engage in the behavior differed depending on whether the question defined the conduct as forced sex or rape). One observer of a gang rape trial in Michigan demonstrates how people believe rape to be something other than what the law defines it to be: "I don't believe she was raped . . . I believe they ran a train on her." Chris O'Sullivan, Acquaintance Gang Rape on Campus, in ACQUAINTANCE RAPE, supra note 21, at 140. A Los Angeles study found that "teenagers understood the difference between consensual and nonconsensual sex, [but] they were frequently reluctant to apply the label 'rape' to the examples of forced sexual relations. . . ." White & Humphrey, supra note 80, at 46 (citing Jacqueline D. Goodchilds et al., Adolescents and Their Perceptions of Sexual Interactions, in 2 RAPE AND SEXUAL ASSAULT 245, 268 (Ann Wolbert Burgess ed., 1988)).
134. See Diana Scully & Joseph Marolla, "Riding the Bull at Gilleys": Convicted Rapists Describe the Rewards of Rape, in RAPE AND SOCIETY, supra note 21, at 58, 70.
135. See id. (citing S. Smithyman, The Undetected Rapist (1978) (unpublished Ph.D. dissertation, Claremont Graduate School)).
136. See id. (citing S. Smithyman, The Undetected Rapist (1978) (unpublished Ph.D. dissertation, Claremont Graduate School)).
137. I have previously referred to this as the "little rule" hypothesis. See Baker, supra note 2, at 604-05. "The rule against raping, particularly date raping is like the rule against shoplifting - it is a little rule." Id.
138. Typical responses to one study of women's experiences with unwanted sexual contact included the following: "Most incidents occurred in the bars or at parties where guys are wasted and don't care what they do;" "Some males get very obnoxious and grab girls in bars whenever they feel like it;" "Some guys cannot seem to control their hands when at a tavern." Ronald J. Berger et al., Sexual Assault in a College Community, 19 SOC. FOCUS 1, 13 (1986).
139. See, e.g., Deborah Richardson & Georgina Hammock, Alcohol and Acquaintance Rape, in ACQUAINTANCE RAPE, supra note 21, at 83, 85-88 (examining several studies documenting the correlation between alcohol consumption and acquaintance rape).
140. See ROBIN WARSHAW, I NEVER CALLED IT RAPE: THE MS. REPORT ON RECOGNIZING, FIGHTING AND SURVIVING DATE AND ACQUAINTANCE RAPE 44 (1988). Cf. Richardson & Hammock, supra note 95, at 85-88 (discussing studies that indicate a strong correlation between alcohol use and date rape).
141. See ROBIN WARSHAW, I NEVER CALLED IT RAPE: THE MS. REPORT ON RECOGNIZING, FIGHTING AND SURVIVING DATE AND ACQUAINTANCE RAPE 44 (1988). Cf. Richardson & Hammock, supra note 95, at 85-88 (discussing studies that indicate a strong correlation between alcohol use and date rape).
142. See HERMAN, supra note 53, at 79 ("Thus, the social meaning of drunkenness, with its implied exemption from ordinary behavioral limits, may play a more significant role than the pharmacological effects of alcohol in the behavior of an offender.").
143. See id. (reporting that both men who consumed alcohol and those who did not - but believed that they had - became aroused by violent rape pornography); Richardson & Hammock, supra note 95, at 87 (same).
144. See id. (reporting that both men who consumed alcohol and those who did not - but believed that they had - became aroused by violent rape pornography); Richardson & Hammock, supra note 95, at 87 (same).
145. See Richardson & Hammock, supra note 95, at 87 (noting that actual alcohol consumption did not have an effect on sexual arousal).
146. L. C. Crowe & W. H. George, Alcohol and Human Sexuality: Review and Integration, 105 PSYCHOL. BULL. 374, 380 (1989).
147. See HARRY KALVEN & HANS ZEISEL, THE AMERICAN JURY 249-51 (1966) (discussing jury perceptions of contributory fault in rape cases).
148. See id. at 249 (explaining that juries will often be lenient to defendants where "there are suggestions of contributory behavior on [the victim's] part").
149. Mark A. Whately, Victim Characteristics Influencing Attributions of Responsibility to Rape Victims: A Meta-Analysis, 1 AGGRESSION & VIOLENT BEHAV. 81, 91 (1996). Studies show that men and those that adhere to traditional sex role stereotypes are more likely to blame victims than women and those with less traditional sex role views. See Willis, supra note 55, at 223 (concluding that people with traditional sex role stereotypes showed bias against rape victims); Bell et al., supra note 55, at 1719 (finding that male students are more likely to blame the victim than are female students). The tendency to blame the victim is by no means limited to men or particularly conservative people. See Berger et al., supra note 94, at 15 (detailing instances of victims blaming themselves for having placed themselves in risky situations).
150. Mark A. Whately, Victim Characteristics Influencing Attributions of Responsibility to Rape Victims: A Meta-Analysis, 1 AGGRESSION & VIOLENT BEHAV. 81, 91 (1996). Studies show that men and those that adhere to traditional sex role stereotypes are more likely to blame victims than women and those with less traditional sex role views. See Willis, supra note 55, at 223 (concluding that people with traditional sex role stereotypes showed bias against rape victims); Bell et al., supra note 55, at 1719 (finding that male students are more likely to blame the victim than are female students). The tendency to blame the victim is by no means limited to men or particularly conservative people. See Berger et al., supra note 94, at 15 (detailing instances of victims blaming themselves for having placed themselves in risky situations).
151. Mark A. Whately, Victim Characteristics Influencing Attributions of Responsibility to Rape Victims: A Meta-Analysis, 1 AGGRESSION & VIOLENT BEHAV. 81, 91 (1996). Studies show that men and those that adhere to traditional sex role stereotypes are more likely to blame victims than women and those with less traditional sex role views. See Willis, supra note 55, at 223 (concluding that people with traditional sex role stereotypes showed bias against rape victims); Bell et al., supra note 55, at 1719 (finding that male students are more likely to blame the victim than are female students). The tendency to blame the victim is by no means limited to men or particularly conservative people. See Berger et al., supra note 94, at 15 (detailing instances of victims blaming themselves for having placed themselves in risky situations).
152. Mark A. Whately, Victim Characteristics Influencing Attributions of Responsibility to Rape Victims: A Meta-Analysis, 1 AGGRESSION & VIOLENT BEHAV. 81, 91 (1996). Studies show that men and those that adhere to traditional sex role stereotypes are more likely to blame victims than women and those with less traditional sex role views. See Willis, supra note 55, at 223 (concluding that people with traditional sex role stereotypes showed bias against rape victims); Bell et al., supra note 55, at 1719 (finding that male students are more likely to blame the victim than are female students). The tendency to blame the victim is by no means limited to men or particularly conservative people. See Berger et al., supra note 94, at 15 (detailing instances of victims blaming themselves for having placed themselves in risky situations).
153. See HUBERT S. FEILD & LEIGH B. BIENEN, JURORS AND RAPE: A STUDY IN PSYCHOLOGY & LAW 54 (1980).
154. WILLIAMS & HOLMES, supra note 82, at 118. These respondents thought that perpetrators' mental illness was the primary cause of rape. See Id. The falsity of this proposition, particularly among date rapists, is now well-established. See Baker, supra note 2, at 576-78 (reporting that researchers have failed to identify "psychological differences" between the rapist and non-rapist populations).
155. WILLIAMS & HOLMES, supra note 82, at 118. These respondents thought that perpetrators' mental illness was the primary cause of rape. See Id. The falsity of this proposition, particularly among date rapists, is now well-established. See Baker, supra note 2, at 576-78 (reporting that researchers have failed to identify "psychological differences" between the rapist and non-rapist populations).
156. See Lynn Hecht Schafran, Writing and Reading About Rape: A Primer, 66 ST. JOHN'S L. REV. 979, 995 n.58 (1993) (citing Telephone Survey of 500 Adult Americans by Yankelovich Partners, Inc., for Time/CNN (May 8, 1991)).
157. Berger et al., supra note 94, at 15.
158. Id.
159. Id.
160. There is an important distinction between what I refer to as "polite" rules, or norms, of romantic and sexual interaction and sex role norms. Although related, the former refers to norms suggesting that men should be romantic initiators and women should not be too sexual. The latter includes the entire spectrum of gender characteristics. Women and men who no longer adhere to traditional gender roles in professional or other personal spheres may still adhere to the propriety of the "polite" rules of sexual interaction.
161. Jackson, supra note 21, at 18 (citation omitted).
162. John Brathwaite writes "deviant behavior is no more than behavior people so label . . . . However arbitrary the labeling process, it is the fact that the criminal chooses to engage in the behavior knowing that it can be so labeled that distinguishes criminal choices from other choices." BRATHWAITE, supra note 84, at 2.
163. See supra note 56 and accompanying text (discussing traditional sex roles that place men in the role of sexual aggressor and women in the role of recipient).
164. See John Carlson, The Sexual Role, in ROLE STRUCTURE AND ANALYSIS OF THE FAMILY 101, 103 (F. Ivan Nye ed., 1976) (discussing a 1976 study of married couples where 44% of the men and approximately 50% of the women thought that men should be the initiator of sexual overtures). Only 45% of the men and 26% of the women thought that men and women should share responsibility for initiating sex and the remaining respondents refused to assign responsibility. No one indicated that the woman should initiate. See id. A study of college age dating couples found that men always initiated sexual activity. See Letitia Anne Peplau et al., Sexual Intimacy in Dating Relationships, 33 J. SOC. ISSUES 86, 96 (1977).
165. See John Carlson, The Sexual Role, in ROLE STRUCTURE AND ANALYSIS OF THE FAMILY 101, 103 (F. Ivan Nye ed., 1976) (discussing a 1976 study of married couples where 44% of the men and approximately 50% of the women thought that men should be the initiator of sexual overtures). Only 45% of the men and 26% of the women thought that men and women should share responsibility for initiating sex and the remaining respondents refused to assign responsibility. No one indicated that the woman should initiate. See id. A study of college age dating couples found that men always initiated sexual activity. See Letitia Anne Peplau et al., Sexual Intimacy in Dating Relationships, 33 J. SOC. ISSUES 86, 96 (1977).
166. As one commentator notes: Th[e] overriding theme of female silence as the mark of a good woman expresses itself in numerous variations in our general sexual culture and our conceptions of rape. A woman need not literally be silent. She may speak if her voice soothes, entertains, informs, or otherwise helps to serve male needs. What she may not do is express her own needs or views . . . . Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L & WOMEN'S STUD. 387, 440 (1996).
167. Kanin, supra note 12, at 97.
168. See id.
169. Id.
170. See ROBERT T. MICHAEL ET AL., SEX IN AMERICA: A DEFINITIVE STUDY 223 (1995).
171. See id. at 227.
172. Id. at 221.
173. See Shotland, supra note 14, at 129-30 ("Early date rape occurs after several dates but before the couple's sexual ground rules are established.").
174. See Kanin, supra note 12, at 102.
175. See Berger et al., supra note 94, at 16.
176. Id.
177. Kim Lane Scheppele, The Re-Vision of Rape Law, 54 U. CHI. L. REV. 1095, 1111 (1987) (discussing the evidentiary and perceptual difficulties of sexual assault that confront courts).
178. See SPOHN & HORNEY, supra note 5, at 23, 24 (describing the consent standard under common law rape statutes).
179. See Ronald S. Berger et al., The Dimensions of Rape Reform Legislation, 22 L. & SOC'Y REV. 330, 330-31 (1988) (discussing how various rape laws use different approaches in defining consent). Three states now proscribe all forms of nonconsensual sexual touching. See id. at 350 app. 1.
180. The rape reform movement has focused on the unfairness to women of accepting, as the law used to, the man's version of "truth." Juries that acquit date rapists have often focused on the unfairness to men of criminally punishing men who understandably see things as other members of their sex do. The "main concern" of the jury that acquitted a group of St. John's University students for the alleged date rape of a comatose woman was a reluctance to "ruin th[e] boys' lives." Joseph P. Fried, St. John's Juror Tell of Doubts in Assault Case: He Says He Went Along with Vote to Acquit 3, N.Y. TIMES, Sept. 14, 1991, at 24.
181. As Part II.A indicates, we are still a long way away from societal consensus on how wrong date rape is, but the changes in the law and empirical studies conducted in the last 20 years suggest that more people are becoming sensitized to the problems involved in nonconsensual sex. See SPOHN & HORNEY, supra note 5, at 175 (noting that reforms in rape law "may have started a process of long-term attitude change").
182. John F. Burns, Canada Moves to Strengthen Sexual Assault Law, N.Y. TIMES, Feb. 21, 1992, at B9 (reporting Canada's efforts to remove sex bias in criminal laws and highlighting objections to proposed reforms).
183. Neil Gilbert, The Phantom Epidemic of Sexual Assault, 103 PUB. INT. 54, 60 (1991).
184. Phil McCombs, Taking a Look at Love, WASH. POST, Feb. 16, 1996, at F5 (quoting the Antioch policy).
185. See Nancy Gibbs, When Is It Rape?, TIME MAGAZINE, June 3, 1991, at 48, 53.
186. George F. Will, Sex Amidst Semi-colons, NEWSWEEK, Oct. 4, 1993, at 92.
187. One skit involved a game show of sorts entitled "Is It Date Rape?"; a "prim, bespeckled" woman contestant always answered "yes," while the "driveling fraternity slob" always answered "no." 'Ask First' at Antioch, N.Y. TIMES, Oct. 11, 1993, at A16 (recounting the Saturday Night Live skit).
188. Sarah Crichton, Sexual Correctness, NEWSWEEK, Oct. 25, 1993, at 52.
189. Jason Vest, The School That's Put Sex to the Test; At Antioch, A Passionate Reaction to Consent Code, WASH. POST, Dec. 3, 1993, at G1.
190. One recent Antioch graduate commented, "'It's not that you necessarily have to go down a list, but you need to talk first, set some ground rules, . . . [H]ow we're doing it may seem a bit stilted. But at least we're stressing the importance of talking about sex.'" Jane Gross, Combating Rape on Campus in a Class on Sexual Consent, N.Y. TIMES, Sept. 25, 1993, at A1, A9.
191. See MICHAEL, ET AL., supra note 119, at 8-9; see also id. at 32-34 (highlighting the need for specially trained interviewers to ensure that people answer questions about their sex lives and behavior truthfully).
192. See supra note 56 and accompanying text (discussing the traditional roles that men and women were expected to play in sexual intercourse).
193. As two commentators noted: Both [men and women are] influenced by traditional stereotypic sexual scripts: men should use any strategy to get women to have sexual intercourse and women should passively acquiesce or use any strategy to avoid sexual intercourse. Even if these patterns are known to be dysfunctional or dangerous by the actors, it is often easier and more comfortable for them to repeat familiar patterns than to counteract them. Robin Warshaw & Andrea Parrot, The Contribution of Sex-Role Socialization to Acquaintance Rape, in ACQUAINTANCE RAPE, supra note 21, at 75 (citations omitted).
194. See Scheppele, supra note 126, at 1111 (highlighting the problem of two different versions of the same encounter).
195. See MICHAEL ET AL., supra note 119, at 222 ("There seems to be not just a gender gap but a gender chasm in perceptions of when sex was forced").
196. Gilbert, supra note 132, at 60.
197. See RESTATEMENT (SECOND) OF CONTRACTS § 69 (a contract is valid only if a court finds that the parties assented).
198. Tort law, in contrast, is concerned with whether a reasonable or average person would agree to do something. Lois Pineau has suggested that this tort framework may be an appropriate one through which to categorize rape. Thus, the question of consent would be decided by looking at whether it is reasonable, from a woman's perspective, to assume consent. See Lois Pineau, Date Rape: A Feminist Analysis, 8 LAW & PHIL. 217, 219 (1989). The problem with this, as Lynne Henderson points out, is that Pineau's reasonable woman standard "might be coopted into a deeply conservative standard that no reasonable woman would consent to sex outside of marriage, or go with a man to his hotel room, or drink with a man in a bar . . . ." Henderson, supra note 21, at 173. I am suggesting that rape law needs to focus less on what reasonable or average women do and more on whether a particular woman consented. The easiest way to ensure that consent is to require, as we do in the contract context, a clear manifestation of assent.
199. "A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent." Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y. 1911) (Hand, J.).
200. The Restatement of Contracts states that silence can be an indication of assent in only three cases: (a) Where an offeree takes the benefit of offered services . . . . (b) Where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction; [and] (c) Where because of previous dealing or otherwise, it is reasonable that the offered should notify the offeror if he does not intend to accept. RESTATEMENT (SECOND) OF CONTRACTS, supra note 147, at 164. None of these exceptions should apply in a date rape situation. To assume that the woman/offeror benefits from a nonconsensual sexual encounter is to adopt an extremely outdated and male-defined version of sex. To suggest that it is reasonable for the offeree/men to assume that silence means assent is to adopt the Aggressor/Recipient model that lies at the root of so much of the communication chasm. Finally, as indicated above, most date rapes take place early in a relationship. Thus, it is highly unlikely that "previous dealing" should lead the man to conclude that silence means an intent to assent.
201. This may be why the Antioch Policy, even though it was explicitly gender neutral, was seen as an affront to men. See Vest, supra note 138, at G1 (describing how men feel attacked by the policy); see also Rene Schaefer, We're Teaching Young Women Wrong Lesson, DALLAS MORNING NEWS, Nov. 30, 1993, at 5C (arguing that Antioch's policy is "lunacy and a subtle brainwashing that tells women that men are the enemy, no matter what").
202. This may be why the Antioch Policy, even though it was explicitly gender neutral, was seen as an affront to men. See Vest, supra note 138, at G1 (describing how men feel attacked by the policy); see also Rene Schaefer, We're Teaching Young Women Wrong Lesson, DALLAS MORNING NEWS, Nov. 30, 1993, at 5C (arguing that Antioch's policy is "lunacy and a subtle brainwashing that tells women that men are the enemy, no matter what").
203. See Taslitz, supra note 115, at 440 (describing the "overriding theme of female silence").
204. See supra notes 116-18 and accompanying text (stating that some women who were sexually assaulted were immobilized by fear).
205. See Bryden & Lengnick, supra note 5, at 1316.
206. See Shotland, supra note 14, at 129 (citation omitted).
207. See id.
208. See id. at 128 (discussing research finding that 39% of rape victims date their attacker after the assault).
209. This is a slight exaggeration because the jury could believe the woman without believing her beyond a reasonable doubt. That is a fairly subtle distinction, however, and if the two stories are flatly inconsistent on the critical point of consent, it is often difficult to believe him without disbelieving her. This is what makes date rape cases so much more problematic than stranger rape cases. In stranger rape cases, if the defense is mistaken identity, the jury is not required to believe that the woman is lying about being raped. The jury in a stranger rape case can believe beyond a reasonable doubt that the victim was raped and still find that the defendant did not do it.
210. In the date rape trial of William Kennedy Smith, the alleged victim testified that she screamed but she was unable to produce any witnesses who heard the scream and the defense produced witnesses who did not. See Paul Richter, Heard No Noises, Smith Case Witness Says L. A. TIMES, Dec. 9, 1991, at A20. A juror in the trial of Sergeant Major of the Army Gene McKinney complained that many of the alleged incidents were months and years old, and there was "no irrefutable evidence that might back up the memories." Interview with Martha Raddatz, All Things Considered (NPR broadcast, Mar. 19, 1998), available in 1998 WL 3644223.
211. In the date rape trial of William Kennedy Smith, the alleged victim testified that she screamed but she was unable to produce any witnesses who heard the scream and the defense produced witnesses who did not. See Paul Richter, Heard No Noises, Smith Case Witness Says L. A. TIMES, Dec. 9, 1991, at A20. A juror in the trial of Sergeant Major of the Army Gene McKinney complained that many of the alleged incidents were months and years old, and there was "no irrefutable evidence that might back up the memories." Interview with Martha Raddatz, All Things Considered (NPR broadcast, Mar. 19, 1998), available in 1998 WL 3644223.
212. Estrich, supra note 3, at 30.
213. See Baker supra note 2, at 620-23 (arguing for the admissibility of prior sexual assaults in rape trials in which the defendant is claiming consent if he has claimed consent in previous cases).
214. Stephen J. Schulhofer, Taking Sexual Autonomy Seriously: Rape Law & Beyond, 11 L. & PHIL. 35, 92 (1992).
215. In a poll taken for the February 24, 1998 edition of the New York Times, 59% of the people polled thought that President Clinton lied under oath about his sexual relationships, but those same 59% thought that such lying was understandable. See N.Y. TIMES, Feb. 24, 1998, at A1. Five months later, Jeffrey Rosen commented "There is, after all, an almost palpable sense of entitlement to lie when one is asked point-blank about sex . . . ." Jeffrey Rosen, The Perjury Trap, THE NEW YORKER, Aug.10, 1998, at 28, 31.
216. In a poll taken for the February 24, 1998 edition of the New York Times, 59% of the people polled thought that President Clinton lied under oath about his sexual relationships, but those same 59% thought that such lying was understandable. See N.Y. TIMES, Feb. 24, 1998, at A1. Five months later, Jeffrey Rosen commented "There is, after all, an almost palpable sense of entitlement to lie when one is asked point-blank about sex . . . ." Jeffrey Rosen, The Perjury Trap, THE NEW YORKER, Aug.10, 1998, at 28, 31.
217. See Baker, supra note 2, at 587 (detailing that an attorney for defendant in gang rape case asked the jury what the victim was doing "running around getting raped," and that a jury foreman who helped acquit a man charged with knifing, beating and twice raping a woman who had been wearing a lace miniskirt, stated that "the way she was dressed with that skirt . . . she was [asking] for sex"). See generally Morisson Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. DAVIS L. REV. 1013, 1056 (1991) (describing how rape myths severely hinder rape prosecutions).
218. See Baker, supra note 2, at 587 (detailing that an attorney for defendant in gang rape case asked the jury what the victim was doing "running around getting raped," and that a jury foreman who helped acquit a man charged with knifing, beating and twice raping a woman who had been wearing a lace miniskirt, stated that "the way she was dressed with that skirt . . . she was [asking] for sex"). See generally Morisson Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. DAVIS L. REV. 1013, 1056 (1991) (describing how rape myths severely hinder rape prosecutions).
219. See People v. Warren, 446 N.E.2d 591, 592, 594 (1983) (finding that the victim "must communicate in some objective manner her lack of consent" even though the defendant was a stranger, who met her on a bike path and carried her off to a secluded area); see also Carol Bohmer, Judicial Attitudes Toward Rape Victims, in FORCIBLE RAPE: THE CRIME, THE VICTIM, AND THE OFFENDER 161, 164 (1977) (detailing a hypothetical in which a woman lets a man drive her home from a bar and then man forces intercourse, and that judges describe the event as "friendly rape," "felonious gallantry" and "assault with failure to please").
220. See People v. Warren, 446 N.E.2d 591, 592, 594 (1983) (finding that the victim "must communicate in some objective manner her lack of consent" even though the defendant was a stranger, who met her on a bike path and carried her off to a secluded area); see also Carol Bohmer, Judicial Attitudes Toward Rape Victims, in FORCIBLE RAPE: THE CRIME, THE VICTIM, AND THE OFFENDER 161, 164 (1977) (detailing a hypothetical in which a woman lets a man drive her home from a bar and then man forces intercourse, and that judges describe the event as "friendly rape," "felonious gallantry" and "assault with failure to please").
221. See generally SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975) (criticizing rape law from a historical perspective); SUSAN ESTRICH, REAL RAPE (1987) (criticizing the law's treatment of rape); Lynne Henderson, What Makes Rape a Crime, 3 BERKELEY WOMEN'S L.J. 193 (1988) (reviewing and criticizing Susan Estrich's book).
222. See generally SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975) (criticizing rape law from a historical perspective); SUSAN ESTRICH, REAL RAPE (1987) (criticizing the law's treatment of rape); Lynne Henderson, What Makes Rape a Crime, 3 BERKELEY WOMEN'S L.J. 193 (1988) (reviewing and criticizing Susan Estrich's book).
223. See generally SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975) (criticizing rape law from a historical perspective); SUSAN ESTRICH, REAL RAPE (1987) (criticizing the law's treatment of rape); Lynne Henderson, What Makes Rape a Crime, 3 BERKELEY WOMEN'S L.J. 193 (1988) (reviewing and criticizing Susan Estrich's book).
224. See Warren, 446 N.E.2d at 592, 594 (finding that the defendant did not break the law when he carried a women into the bushes and forced her to perform oral sex).
225. See Karen M. Kramer, Rule by Myth: The Social & Legal Dynamics Governing Alcohol-Related Acquaintance Rape, 47 STAN. L. REV. 115, 136-38 (1994) (discussing a publicized alleged rape at St. John's University involving claims that three men sodomized an intoxicated woman). The men were acquitted. See Fried, supra note 129.
226. See Karen M. Kramer, Rule by Myth: The Social & Legal Dynamics Governing Alcohol-Related Acquaintance Rape, 47 STAN. L. REV. 115, 136-38 (1994) (discussing a publicized alleged rape at St. John's University involving claims that three men sodomized an intoxicated woman). The men were acquitted. See Fried, supra note 129.
227. Interview with Martha Raddatz, supra note 158.
228. According to the National Victim Center's Rape in America report, 10% of all rape victims or over 1.2 million women have been raped by their boyfriend or ex-boyfriend. See CRIME VICTIMS RESEARCH AND TREATMENT CTR., RAPE IN AMERICA: A REPORT TO THE NATION 2, 4 (1992).
229. Research strongly suggests that the best societal defense to date rape is strong moral condemnation. In a 1996 study of college males, Ronet Bachman, Raymond Paternoster and Sally Ward found that "when moral condemnation was strong . . . respondents reported a nonzero probability of committing a sexual assault in only 6% of the scenarios. Conversely, when moral beliefs were low, respondents reported some probability of committing sexual assault in 45% of the scenarios." Ronet Bachman et al., The Rationality of Sexual Offending: Testing a Deterrence/Rational Choice Conception of Sexual Assault, 26 L. & SOC'Y REV. 343, 364 (1992).
230. Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 359 (1997).
231. Id. at 378.
232. See Andrea Parrot, Recommendations for College Policies and Procedures to Deal with Acquaintance Rape, in ACQUAINTANCE RAPE, supra note 21, at 368, 369; see also Kathryn Kranhold & Katherine Farrish, Anxiety About Sex, Dating, Rape Transforms College Life, HARTFORD COURANT, Oct. 10, 1993, at A1; Rape List on Bathroom Walls Spur Furor at Brown University, ST. LOUIS POST-DISPATCH, Dec. 16, 1990 (noting that most complaints involving students at Brown University have been resolved through the university).
233. See Andrea Parrot, Recommendations for College Policies and Procedures to Deal with Acquaintance Rape, in ACQUAINTANCE RAPE, supra note 21, at 368, 369; see also Kathryn Kranhold & Katherine Farrish, Anxiety About Sex, Dating, Rape Transforms College Life, HARTFORD COURANT, Oct. 10, 1993, at A1; Rape List on Bathroom Walls Spur Furor at Brown University, ST. LOUIS POST-DISPATCH, Dec. 16, 1990 (noting that most complaints involving students at Brown University have been resolved through the university).
234. See Andrea Parrot, Recommendations for College Policies and Procedures to Deal with Acquaintance Rape, in ACQUAINTANCE RAPE, supra note 21, at 368, 369; see also Kathryn Kranhold & Katherine Farrish, Anxiety About Sex, Dating, Rape Transforms College Life, HARTFORD COURANT, Oct. 10, 1993, at A1; Rape List on Bathroom Walls Spur Furor at Brown University, ST. LOUIS POST-DISPATCH, Dec. 16, 1990 (noting that most complaints involving students at Brown University have been resolved through the university).
235. Parrot, supra note 173, at 369.
236. The grassroots tactic that received the most press involved writing the names of alleged date rapists on bathroom walls and on posters on campus. There were reports of this at Brown University, Wesleyan University, Northwestern University and Oberlin College. See Kranhold & Farrish, supra note 173 (reporting that women wrote the names of alleged rapists on the bathroom walls at Wesleyan); Justice Not Posters, THE PLAIN DEALER, May 3, 1993, at 6B (reporting that women at Oberlin wrote the names of alleged date rapists on posters and women at Brown wrote rapists' names on the bathroom walls); David Silverman, NU Divided over Rage and Rights in Rape Claim, CHI. TRIB., Nov. 21, 1991, at 1 (reporting that alleged rapists' names were written on the bathroom walls at Northwestern).
237. The grassroots tactic that received the most press involved writing the names of alleged date rapists on bathroom walls and on posters on campus. There were reports of this at Brown University, Wesleyan University, Northwestern University and Oberlin College. See Kranhold & Farrish, supra note 173 (reporting that women wrote the names of alleged rapists on the bathroom walls at Wesleyan); Justice Not Posters, THE PLAIN DEALER, May 3, 1993, at 6B (reporting that women at Oberlin wrote the names of alleged date rapists on posters and women at Brown wrote rapists' names on the bathroom walls); David Silverman, NU Divided over Rage and Rights in Rape Claim, CHI. TRIB., Nov. 21, 1991, at 1 (reporting that alleged rapists' names were written on the bathroom walls at Northwestern).
238. The grassroots tactic that received the most press involved writing the names of alleged date rapists on bathroom walls and on posters on campus. There were reports of this at Brown University, Wesleyan University, Northwestern University and Oberlin College. See Kranhold & Farrish, supra note 173 (reporting that women wrote the names of alleged rapists on the bathroom walls at Wesleyan); Justice Not Posters, THE PLAIN DEALER, May 3, 1993, at 6B (reporting that women at Oberlin wrote the names of alleged date rapists on posters and women at Brown wrote rapists' names on the bathroom walls); David Silverman, NU Divided over Rage and Rights in Rape Claim, CHI. TRIB., Nov. 21, 1991, at 1 (reporting that alleged rapists' names were written on the bathroom walls at Northwestern).
239. See Higher Education Amendments of 1992 § 486(c)(1)-(2) (amending federal law), 20 U.S.C. §§ 1092(f)(1)(F) (1994) (requiring universities to collect information on crimes, including rape, to be eligible for federal funds); id. § 1092(f)(7)(B)(i)-(B)(iii) (requiring development of rape awareness programs and disciplinary procedures).
240. See Kranhold & Farrish, supra note 173, at A1 (reporting that Yale University's dean of student affairs says that Yale does not want the hearings to resemble a criminal courtroom).
241. See Parrot, supra note 173, at 369 (noting that campus judicial hearings require only a majority to convict and employ less rigid standards of proof than the criminal process); Kranhold & Farrish, supra note 173, at A1 (highlighting Yale's efforts to employ informal methods).
242. See Parrot, supra note 173, at 369 (noting that campus judicial hearings require only a majority to convict and employ less rigid standards of proof than the criminal process); Kranhold & Farrish, supra note 173, at A1 (highlighting Yale's efforts to employ informal methods).
243. See Kranhold & Farrish, supra note 173, at A1. See generally Paul E. Rosenthal, Note, Speak Now: The Accused Student's Right to Remain Silent in Public University Disciplinary Proceedings, 97 COLUM. L. REV. 1241, 1250-51 (1977) ("The composition of hearing boards differ from school to school, and in many places students sit in judgment of other students.").
244. See Kranhold & Farrish, supra note 173, at A1. See generally Paul E. Rosenthal, Note, Speak Now: The Accused Student's Right to Remain Silent in Public University Disciplinary Proceedings, 97 COLUM. L. REV. 1241, 1250-51 (1977) ("The composition of hearing boards differ from school to school, and in many places students sit in judgment of other students.").
245. See Kranhold & Farrish, supra note 173, at A1; Silverman, supra note 175, at 1 (same); Alice Dembner, Colleges Struggle to Find Answers, BOSTON GLOBE, May 19, 1997, at A1.
246. See Kranhold & Farrish, supra note 173, at A1; Silverman, supra note 175, at 1 (same); Alice Dembner, Colleges Struggle to Find Answers, BOSTON GLOBE, May 19, 1997, at A1.
247. See Kranhold & Farrish, supra note 173, at A1; Silverman, supra note 175, at 1 (same); Alice Dembner, Colleges Struggle to Find Answers, BOSTON GLOBE, May 19, 1997, at A1.
248. See Kranhold & Farrish, supra note 173, at A1 (stating that Yale University expelled a star player on its basketball team after a disciplinary hearing in which he was found guilty of assault);
249. Dembner, supra note 180, at A1 (reporting that Northeastern University expelled a freshman tried for sexual assault).
250. See, e.g., Silverman, supra note 175, at 1 (reporting that the penalties at Northwestern include reprimand, suspension and expulsion).
251. The university Chancellor of a large northeastern university placed one of the school's football player's on probation and prohibited him from playing in the first five football games of the season after he pled guilty in a criminal proceeding to sexual misconduct. See Parrot, supra note 173, at 368.
252. A William and Mary student found guilty of attacking another student was forbidden to enter any dormitory or fraternity other than his own. See Helaine Olen & Ronald Ostrow, Date-Rape Gains Attention After Years as Taboo Topic, L.A. TIMES, Apr. 23, 1991.
253. See Dembner, supra note 180, at A1 (collecting sources indicating that college disciplinary procedures are typically confidential).
254. See supra note 176 and accompanying text.
255. Kenneth Dau-Schmidt argues that the criminal law itself tries to steer social influence by molding preferences. See Kenneth G. Dau-Schmidt, An Economic Analysis of the Criminal Law as a Preference-Shaping Policy, 1990 DUKE L.J. 1, 2. This is no doubt true, but competing social influence often defeats whatever message the criminal law is trying to send. See Kahan, supra note 171, at 357 ("Most people refrain from engaging in crime not because they fear formal penalties, but because they fear damage to their reputation and loss of status."); Lessig, supra note 9, at 968-70 (illustrating in the context of dueling in the American South that social influence can override criminal sanctions).
256. Kenneth Dau-Schmidt argues that the criminal law itself tries to steer social influence by molding preferences. See Kenneth G. Dau-Schmidt, An Economic Analysis of the Criminal Law as a Preference-Shaping Policy, 1990 DUKE L.J. 1, 2. This is no doubt true, but competing social influence often defeats whatever message the criminal law is trying to send. See Kahan, supra note 171, at 357 ("Most people refrain from engaging in crime not because they fear formal penalties, but because they fear damage to their reputation and loss of
257. Kenneth Dau-Schmidt argues that the criminal law itself tries to steer social influence by molding preferences. See Kenneth G. Dau-Schmidt, An Economic Analysis of the Criminal Law as a Preference-Shaping Policy, 1990 DUKE L.J. 1, 2. This is no doubt true, but competing social influence often defeats whatever message the criminal law is trying to send. See Kahan, supra note 171, at 357 ("Most people refrain from engaging in crime not because they fear formal penalties, but because they fear damage to their reputation and loss of status."); Lessig, supra note 9, at 968-70 (illustrating in the context of dueling in the American South that social influence can override criminal sanctions).
258. See Avery Katz, Taking Private Ordering Seriously, 144 U. PA. L. REV. 1745, 1756-57 (1996) (advocating for legal scholars to work to create more practical norms for various private communities).
259. See id.
260. This is H. Laurence Ross' term. See H. LAURENCE ROSS, CONFRONTING DRUNK DRIVING (1992). He uses it to suggest that in order to attack drunk driving, we must do more than just punish drunk drivers, we must attack the social institutions, notably recreation and transportation, that encourage drunk driving behavior. See id. at 5 and infra text accompanying notes 304-06.
261. My suggestions are certainly not offered as an exclusive list. They are a beginning, and a practical outgrowth of the theoretical work advanced by Dan Kahan in his seminal work on alternative sanctions. See Kahan, supra note 51, at 591-663.
262. Sex without consent might come to be seen as a last refuge of someone who could not control his animal instincts or was not sophisticated enough for the woman to want to say "yes."
263. BRATHWAITE, supra note 84, at 10.
264. Brathwaite writes: "[M]oralizing social control restricts our autonomy by inviting us to see that we cannot be whole moral persons through considering only our own interests in the choices we make. We are shamed if we exercise our own autonomy in a way that tramples on the autonomy of others." Id. at 11.
265. Toni Massaro argues that America is too big and diverse a society for shaming to work because one can only feel shamed in interdependent communities in which the shamed person wants and needs the respect of others. See Toni Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880, 1923 (1991) [hereinafter Massaro, Shame]. "American subculturalism, or cultural pluralism, is pronounced enough to make broad conclusions about our moral coherence suspect . . . ." Id. College campuses are much more physically, culturally and morally coherent than is American culture generally, however. People on college campuses know each other well. They often work, play and live with each other. The richness of one's experience on that campus has a great deal to do with whether one has the respect and friendship of the community as a whole.
266. Toni Massaro argues that America is too big and diverse a society for shaming to work because one can only feel shamed in interdependent communities in which the shamed person wants and needs the respect of others. See Toni Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880, 1923 (1991) [hereinafter Massaro, Shame]. "American subculturalism, or cultural pluralism, is pronounced enough to make broad conclusions about our moral coherence suspect . . . ." Id. College campuses are much more physically, culturally and morally coherent than is American culture generally, however. People on college campuses know each other well. They often work, play and live with each other. The richness of one's experience on that campus has a great deal to do with whether one has the respect and friendship of the community as a whole.
267. I am grateful to Richard McAdams for this suggestion. As he pointed out to me, in addition to subjecting men to embarrassing tests, this sanction also deters date rape by deterring drinking (for the correlation between drinking and date rape, see supra notes 94-100) and it pits one means of proving masculinity - drinking - against another - sex. This provides men with a masculine reason not to date rape.
268. Both Toni Massaro, see The Meanings of Shame: Implications for Legal Reform, 3 PSYCHOL. PUB. POL. & LAW 645, 693 (1997) [hereinafter Massaro, Meanings] (cautioning that shaming "may lack any redemptive, dues-paid end point"), and John Brathwaite, see BRATHWAITE, supra note 84, at 74, note the importance of a temporally limited sanction.
269. Both Toni Massaro, see The Meanings of Shame: Implications for Legal Reform, 3 PSYCHOL. PUB. POL. & LAW 645, 693 (1997) [hereinafter Massaro, Meanings] (cautioning that shaming "may lack any redemptive, dues-paid end point"), and John Brathwaite, see BRATHWAITE, supra note 84, at 74, note the importance of a temporally limited sanction.
270. Both Toni Massaro, see The Meanings of Shame: Implications for Legal Reform, 3 PSYCHOL. PUB. POL. & LAW 645, 693 (1997) [hereinafter Massaro, Meanings] (cautioning that shaming "may lack any redemptive, dues-paid end point"), and John Brathwaite, see BRATHWAITE, supra note 84, at 74, note the importance of a temporally limited sanction.
271. The offender who is not re-integrated "may 'drift' toward subcultures that are more accepting of her particular norm violation." Massaro, Shame, supra note 195, at 1919; see also BRATHWAITE, supra note 84, at 65-68. Of course, many men may choose to leave rather than undergo the demeaning sanctions suggested here. If that happens, the university community loses the opportunity for public education but it is no worse off that it is now, when rapists are suspended or expelled. Moreover, a convicted rapist who decides to leave rather than be humbled is at least forced to take some responsibility for his actions. He is forced to balance his need for esteem against his desire to continue with his education. That balancing process in and of itself may help young men think more closely about the legitimacy of status systems that they now uncritically accept.
272. The offender who is not re-integrated "may 'drift' toward subcultures that are more accepting of her particular norm violation." Massaro, Shame, supra note 195, at 1919; see also BRATHWAITE, supra note 84, at 65-68. Of course, many men may choose to leave rather than undergo the demeaning sanctions suggested here. If that happens, the university community loses the opportunity for public education but it is no worse off that it is now, when rapists are suspended or expelled. Moreover, a convicted rapist who decides to leave rather than be humbled is at least forced to take some responsibility for his actions. He is forced to balance his need for esteem against his desire to continue with his education. That balancing process in and of itself may help young men think more closely about the legitimacy of status systems that they now uncritically accept.
273. The victims' names could still be kept confidential. One can apologize for an action without naming the parties to the action. If the victim wishes to remain anonymous, she should be able to do so.
274. A defendant who refuses to testify, is found guilty, and still refuses to acknowledge wrongdoing should be expelled. However, a defendant who acknowledges wrongdoing and subsequently finds himself the subject of a criminal trial should be able to exclude from the criminal trial any previous exculpatory statements made under the threat of expulsion. The two federal courts that have encountered this issue, Man v. Ferris State College, 557 F. Supp. 1379, 1384-85 (W.D. Mich. 1983) (finding that a student had a right to remain silent during a disciplinary hearing); Furutani v. Ewigleben, 291 F. Supp. 1163, 1165 (N.D. Cal. 1969) (same) and the one state court, Nzuve v. Castleton State College, 335 A.2d 321, 325-26 (Vt. 1975) (same), have followed Garrity v. New Jersey, 385 U.S. 493, 500 (1967) (protecting individuals against coerced statements by punishing their use in subsequent criminal proceedings) to find that testimony given in a college administrative hearing under the threat of suspension or expulsion for failure to testify is not voluntary and is therefore inadmissible in a subsequent criminal proceeding. In Garrity, two police officers were told that they would be fired if they invoked the Fifth Amendment during a Grand Jury proceeding investigating police corruption. See 385 U.S. at 495 ("[T]heir statements were coerced, by reason of the fact that, if they refused to answer, they could lose their positions with the police department."). The Supreme Court held that under those circumstances, the officers' testimony could not be construed as a waiver of their right against self-incrimination, and therefore could not be used against them in a subsequent trial. See id. at 498-500. It is unlikely that this analysis would be different for private schools because they too are required by federal law to provide "sanctions to be imposed following the final determination of an on-campus disciplinary procedure regarding rape, acquaintance rape, or other sex offenses," see Higher Education Amendments of 1992 (amending federal law), 20 U.S.C. § 1092(f)(7)(B)(ii) (1994) (requiring information on "possible sanctions to be imposed following the final determination of an on-campus disciplinary procedure regarding rape, acquaintance rape, or other sex offenses, forcible or nonforcible").
275. In a recent Note, Paul Rosenthal argues that due process requires public universities not to construe silence on the part of a defendant as an admission of guilt. See Rosenthal, supra note 179, at 1271-86 (arguing for the application of the privilege against self-incrimination in college disciplinary hearings). However persuasive this argument for expanded due process rights may be, it is not likely to afford a public school defendant significantly more protection given the less rigid standards of proof, relaxed rules of evidence and majority rule procedures that govern most university hearings. See Parrot, supra note 173, at 369 (concluding that judicial board hearings employ less rigid standards of proof and more flexible evidentiary rules than criminal proceedings). If an accused man remains silent, it is quite likely that the defendant will be convicted, even if his silence cannot be construed against him. Without his testimony, the preponderance of the evidence will probably weigh against him. As long as the courts and Congress continue to allow universities to discipline students for non-academic activity, students should not expect the procedural protections afforded in criminal courts. See Lisa L. Swem, Note, Due Process Rights in Student Disciplinary Matters, 14 J.C. & U.L. (1987).
276. In a recent Note, Paul Rosenthal argues that due process requires public universities not to construe silence on the part of a defendant as an admission of guilt. See Rosenthal, supra note 179, at 1271-86 (arguing for the application of the privilege against self-incrimination in college disciplinary hearings). However persuasive this argument for expanded due process rights may be, it is not likely to afford a public school defendant significantly more protection given the less rigid standards of proof, relaxed rules of evidence and majority rule procedures that govern most university hearings. See Parrot, supra note 173, at 369 (concluding that judicial board hearings employ less rigid standards of proof and more flexible evidentiary rules than criminal proceedings). If an accused man remains silent, it is quite likely that the defendant will be convicted, even if his silence cannot be construed against him. Without his testimony, the preponderance of the evidence will probably weigh against him. As long as the courts and Congress continue to allow universities to discipline students for non-academic activity, students should not expect the procedural protections afforded in criminal courts. See Lisa L. Swem, Note, Due Process Rights in Student Disciplinary Matters, 14 J.C. & U.L. (1987).
277. In a recent Note, Paul Rosenthal argues that due process requires public universities not to construe silence on the part of a defendant as an admission of guilt. See Rosenthal, supra note 179, at 1271-86 (arguing for the application of the privilege against self-incrimination in college disciplinary hearings). However persuasive this argument for expanded due process rights may be, it is not likely to afford a public school defendant significantly more protection given the less rigid standards of proof, relaxed rules of evidence and majority rule procedures that govern most university hearings. See Parrot, supra note 173, at 369 (concluding that judicial board hearings employ less rigid standards of proof and more flexible evidentiary rules than criminal proceedings). If an accused man remains silent, it is quite likely that the defendant will be convicted, even if his silence cannot be construed against him. Without his testimony, the preponderance of the evidence will probably weigh against him. As long as the courts and Congress continue to allow universities to discipline students for non-academic activity, students should not expect the procedural protections afforded in criminal courts. See Lisa L. Swem, Note, Due Process Rights in Student Disciplinary Matters, 14 J.C. & U.L. (1987).
278. I take this first example and much of the following analysis from Lessig's work on social meaning. See Lessig, supra note 9, at 968; Lawrence Lessig, Social Meaning and Social Norms, 144 U. PA. L. REV. 2181, 2187 (1997).
279. I take this first example and much of the following analysis from Lessig's work on social meaning. See Lessig, supra note 9, at 968; Lawrence Lessig, Social Meaning and Social Norms, 144 U. PA. L. REV. 2181, 2187 (1997).
280. See Lessig, supra note 9, at 971 (suggesting that banning an individual from participating in public office was a more effective method of regulation).
281. See id. (asserting that such a sanction created "an elite-based reason for refusing the challenge of a duel"). It is hard to determine exactly how effective this anti-dueling device was because legislatures tended to grandfather past duels out of the bar on public office and they often repassed grandfathering legislation every few years. See id. at 972.
282. See Kahan, supra note 171, at 374-76 (arguing in the context of gang activity that harsher punishments may actually make the targeted behavior more attractive).
283. "Tying" is one of two strategies Lessig describes that help alter the social meaning of certain actions. See Lessig, supra note 9, at 1009.
284. See SPOHN & HORNEY, supra note 5, at 23, 24 (discussing how many states have removed the requirement that the victim must "resist to the utmost" in order to prove force).
285. See Berger et al., supra note 94, app. 1 at 350.
286. "Real rape" is Susan Estrich's term. She used it to describe the prototypical violent stranger rape, but argued that all forms of nonconsensual sex should be treated like real rape. See ESTRICH, supra note 165, at 7.
287. See Mary P. Koss et al., Stranger and Acquaintance Rape: Are There Differences in the Victim's Experience, 12 PSYCHOL. WOMEN Q. 1, 21-22 (1988) (finding that date rape and stranger rape victims exhibited the same psychological symptoms after the attack); Mills & Granoff, supra note 19, at 504 (same).
288. See Mary P. Koss et al., Stranger and Acquaintance Rape: Are There Differences in the Victim's Experience, 12 PSYCHOL. WOMEN Q. 1, 21-22 (1988) (finding that date rape and stranger rape victims exhibited the same psychological symptoms after the attack); Mills & Granoff, supra note 19, at 504 (same).
289. See Michelle Ingrassi, Waiting to Exhale, NEWSWEEK, May 1, 1995, at 76. Cass Sunstein first brought this example into the legal scholarship on norms. See Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 905-06 (1996).
290. See Michelle Ingrassi, Waiting to Exhale, NEWSWEEK, May 1, 1995, at 76. Cass Sunstein first brought this example into the legal scholarship on norms. See Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 905-06 (1996).
291. See Ingrassi, supra note 211, at 76.
292. Id.
293. Focusing on adverse health effects of a certain behavior is likely to be a particularly ineffective means of altering the behavior of youth. Most young people suffer from serious delusions of immortality. Young people do not think that they are going to die and they are notorious for engaging in extremely high-risk behavior. Telling young people that by smoking they are more likely to die in 30 years than in 50 is not likely to change their behavior.
294. See Ingrassi, supra note 211, at 76.
295. McAdams also discusses how norms regarding drunk driving have changed. See supra note 50, at 385 ("The 'loyal friend' defends the right of his friend to drink, even when driving, and feels guilt if he does not, until the esteem-based norm changes to 'friends don't let friends drive drunk.'").
296. As part of their on-going campaign in the late 1980s, a group of anti-alcohol activists from the Harvard School of Public Health met with 250 television writers and producers. As a result of that meeting, more than 160 prime time television shows included at least some dialogue about the harms of drunk driving. See Burt Solomon, Teens and Sex, NAT'L J., July 4, 1998, at 1566, 1568 (highlighting the media coverage of the designated driver concept).
297. The proportion of fatally injured drivers with a Blood Alcohol Level of .1% decreased significantly between 1980 and 1985. See H. LAURENCE ROSS, CONFRONTING DRUNK DRIVING 40 (1992) (noting that the percentage of fatally injured drivers with a Blood Alcohol Content above .10% declined from 46% in 1980 to 39% in 1985). It is difficult to say whether this decrease is directly attributable to the efforts of groups like Mothers Against Drunk Driving, but it seems likely that their efforts contributed to this reduction.
298. See supra notes 87-92 and accompanying text.
299. For an extensive analysis of the problems with mandatory mediation, see Jennifer Gerarda Brown, The Use of Mediation to Resolve Criminal Cases: A Procedural Critique, 43 EMORY L.J. 1247, 1273-99 (1994) (criticizing mandatory mediation from the victim's, offender's, and state's perspective).
300. See JEFFRIE G. MURPHY & JEAN HAMPTON, FORGIVENESS AND MERCY 20.
301. See id. at 158;
302. see also Martha C. Nussbaum, Equity and Mercy, 22 PHIL. & PUB. AFF. 83, 115 (1993) (asserting that deterrence and retribution, as opposed to mercy, focus on the crime committed, not the individual who committed it).
303. It is enthroned in the heart of kings. It is an attribute of God himself; And earthly power doth then show likest God's When mercy seasons justice. WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE, act 4, sc. 1, at 111-12 (Methuen & Co. Ltd., Arden ed. 1955) (1600).
304. Legitimate retribution "aims to defeat the wrongdoer in order to annul the evidence provided by the crime of his relative superiority." MURPHY & HAMPTON, supra note 221, at 137.
305. See Brown, supra note 220, at 1308 (stating that Victim-Offender Mediation "characterizes cases as private disputes affecting individuals rather than the state, and it rejects the state's substantive legal rules for resolution of criminal cases").
306. Martin Schwanz, a criminologist at Ohio University argues that "[w]e have to figure out a way to change the culture on campus . . and disconnect sexual conquest from male self-identity." Dembner, supra note 180, at A1. Bob Haynor, who coordinates rape prevention efforts at one Northeastern college, argues that students know that "no means no," but date rape still happens because of "the culture of masculinity that supports [raping] behaviors." Id.
307. For a discussion of the gender status quo, see supra notes 58-67 and accompanying text.
308. The misogyny involved becomes clear when one recognizes that punishing a woman by making her masculine would not come close to invoking the same level of humiliation involved in punishing a man by making him feminine.
309. As Lessig writes, "meaning is the product of a text in a particular context." Lessig, supra note 9, at 961. Context is "the associations that get made when the particular text is asserted." Id. Instead of just trying to change the extent to which the text is asserted (by criminalizing rape and therefore discouraging people from raping), shaming may change the associations arising from rape so that its social meaning will change, making it less desirable to assert the text.
310. See Massaro, Meanings, supra note 197, at 648-49; James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 YALE L.J. 1055, 1057-59 (1998); Massaro, Shame, supra note 195, at 1921-28.
311. See Massaro, Meanings, supra note 197, at 648-49; James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 YALE L.J. 1055, 1057-59 (1998); Massaro, Shame, supra note 195, at 1921-28.
312. See Massaro, Meanings, supra note 197, at 648-49; James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 YALE L.J. 1055, 1057-59 (1998); Massaro, Shame, supra note 195, at 1921-28.
313. Massaro, Meanings, supra note 197, at 672.
314. For instance, one can feel shame for pocketing a cashier's arithmetic mistake even if no one else ever knows that you did so.
315. Shaming may lead some people to feel more angry than shamed. It can also lead people to externalize blame. See Massaro, Meanings, supra note 197, at 664.
316. Id. at 658.
317. Massaro does not dispute that shaming sanctions do send an official message of moral condemnation. See id. at 698.
318. See Massaro, Shame, supra note 195, at 1919 (detailing that shaming deters those who fear social disapproval).
319. See infra notes 244-46 and accompanying text.
320. See supra notes 87-92 and accompanying text.
321. Whitman, supra note 230, at 1089. Whitman objects to shaming sanctions precisely because "[i]t is a form of legislating and politicking in the realm of morality that goes unchecked by any of our standard ideas about the propriety of legislating or moralizing." Id. at 1090. That may be, but if we adopt shame sanctions fully aware of the kinds of norms we are trying to encourage, the lack of traditional checks on government moralizing is less problematic.
322. Shaming is a particularly common response to those norm violations that shaming advocates think stem from what Massaro calls "norm collapse." See Massaro, Meanings, supra note 197, at 668 (noting that some culture critics "believe that a shame-affect bind with respect to our sexual desires and acts is crucial and worth preserving"). Thus, sexual "crimes" are often the target of shame sanctions. See Whitman, supra note 230, at 1063.
323. Shaming is a particularly common response to those norm violations that shaming advocates think stem from what Massaro calls "norm collapse." See Massaro, Meanings, supra note 197, at 668 (noting that some culture critics "believe that a shame-affect bind with respect to our sexual desires and acts is crucial and worth preserving"). Thus, sexual "crimes" are often the target of shame sanctions. See Whitman, supra note 230, at 1063.
324. There is no guarantee that these sanctions will shore up a norm against date rape, but criminalizing the behavior has not been particularly effective in shoring up that norm either. See supra Part II.A (highlighting the criminal law's problems in combating date rape).
325. Massaro, Meanings, supra note 197, at 693 (stating that "shaming penalties . . . may do nothing by themselves to deter norm violations (because social norms already police the behavior more effectively than any legal rule could . . .).").
326. BRATHWAITE, supra note 84, at 82. Somewhat inconsistently, Brathwaite seems to argue that shaming sanctions are most effective when there is strong consensus as to the deviance of the conduct, but he assumes that such consensus exists for "predatory crimes . . .involving victimization of one party over another." Id. at 14. Date rape is a predatory crime involving victimization. The consensus as to its deviance cannot form until we emphasize its predatory nature.
327. Massaro, Meanings, supra note 197, at 648.
328. Massaro, Shame, supra note 195, at 1919.
329. See supra notes 80-82 (discussing studies where people don't find forced sex unacceptable), 101-04 (discussing studies where people blame the victim for the rape) and accompanying text. In the words of a father of one of the Spur Posse, "[n]othing my boy did was anything that any red-blooded American boy wouldn't do at his age . . . . Those girls around my son are giving it away." Scoring with the Spur Posse, N.Y. TIMES, Mar. 30, 1993, at A22. See generally Baker, supra note 2, at 587-89 (discussing the tendency for many to blame the victim in rape cases).
330. See supra notes 80-82 (discussing studies where people don't find forced sex unacceptable), 101-04 (discussing studies where people blame the victim for the rape) and accompanying text. In the words of a father of one of the Spur Posse, "[n]othing my boy did was anything that any red-blooded American boy wouldn't do at his age . . . . Those girls around my son are giving it away." Scoring with the Spur Posse, N.Y. TIMES, Mar. 30, 1993, at A22. See generally Baker, supra note 2, at 587-89 (discussing the tendency for many to blame the victim in rape cases).
331. See supra notes 80-82 (discussing studies where people don't find forced sex unacceptable), 101-04 (discussing studies where people blame the victim for the rape) and accompanying text. In the words of a father of one of the Spur Posse, "[n]othing my boy did was anything that any red-blooded American boy wouldn't do at his age . . . . Those girls around my son are giving it away." Scoring with the Spur Posse, N.Y. TIMES, Mar. 30, 1993, at A22. See generally Baker, supra note 2, at 587-89 (discussing the tendency for many to blame the victim in rape cases).
332. The rules of venue ensure that a criminal trial will take place in reasonable proximity of the scene of the incident. See FED. R. CRIM. P. 18. Nonetheless, reasonable proximity allows people to establish considerable distance; a college student accused of date rape would be held, tried and punished away from campus. It is unlikely that his peers would see the trial itself or his punishment.
333. Massaro has suggested that shaming may not work for one of the same reasons that rehabilitation has not worked, specifically, that "people today view criminals as irredeemably 'pathological.'" Massaro, Shame, supra note 195, at 1929. Part of the reason that people have resisted convicting date rapists, however, is that people refuse to criminally sanction rapists who do not seem at all pathological. See Baker supra note 2, at 588-89.
334. Massaro has suggested that shaming may not work for one of the same reasons that rehabilitation has not worked, specifically, that "people today view criminals as irredeemably 'pathological.'" Massaro, Shame, supra note 195, at 1929. Part of the reason that people have resisted convicting date rapists, however, is that people refuse to criminally sanction rapists who do not seem at all pathological. See Baker supra note 2, at 588-89.
335. As Stephen Schulhofer has noted, "[t]he conception of the criminal offender as alien enemy fuels savage punishments and such punishments in turn require that we demonize those on whom they will be dropped." Stephen J. Schulhofer, The Trouble with Trials; the Trouble with Us, 105 YALE L.J. 825, 852 (1995).
336. For a sampling of various recently adopted university hate speech codes see 1 HATE SPEECH AND THE CONSTITUTION 292-302 (Steven J. Heyman ed., 1996). For instance Stanford's anti-taunting provision bars speech "addressed directly to the individual or individuals whom it insults or stigmatizes." See id. at 293. The prohibited comments might also fall into the category of "insulting or 'fighting words' - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Fighting words can be regulated under the First Amendment. See id. at 573 (upholding statute restricting speech that, if used in a public place, would cause a breach of the peace).
337. This kind of anti-taunting regulation would also minimize what Professor Whitman sees as the danger of the mob. Whitman views shaming as "state-encouraged lynching" that "involves a troubling tolerance for ochlocracy." Whitman, supra note 230, at 1089.
338. BRATHWAITE, supra note 84, at 83.
339. CARL D. SCHNEIDER, SHAME, EXPOSURE, AND PRIVACY 53-54 (1977).
340. FRANCIS J. BROUCEK, SHAME AND THE SELF 23 (1991).
341. BRATHWAITE, supra note 84, at 89.
342. See ROBERT WRIGHT, THE MORAL ANIMAL - WHY WE ARE THE WAY WE ARE: THE NEW SCIENCE OF EVOLUTIONARY PSYCHOLOGY 219-20 (1994).
343. Obviously, not all college campuses have comparable levels of homogeneity. A small, private, elite college in a bucolic, rural setting is likely to be much less diverse than a large, urban, state university. Nonetheless, when compared to the population as a whole, even a large state university or a community college is a fairly uniform group. The students are mostly in the same age range, they usually have comparable educational goals, and they tend to rely on each other for social support. Moreover, they are often separated from family, the institution that often insulates people from the effect of social influence.
344. See Massaro, Meanings, supra note 197, at 682.
345. Id. at 685.
346. Id.
347. See supra notes 26-33 and accompanying text.
348. "The effectiveness of shaming is often enhanced by shame being directed not only at the individual offender but also at her [collectivity]. . . . When a collectivity as well as an individual is shamed, collectivities are put on notice as to their responsibility to exercise informal control over their members . . . ." BRATHWAITE, supra note 84, at 83.
349. Ideally, we might move toward a world in which there was no esteem value given, by anyone, for frequency of sexual encounter (however defined), but that world is still a distant, if achievable, dream. Adolescence brings with it an undisputed hormonal incentive for sexual experimentation. Most teenagers are intensely curious about sex. They always have and they always will talk to their peers about it. It is highly unlikely that we can make either men or women's hormonal drives disappear and highly unrealistic to think we can keep young people from talking to each other and comparing experiences. However, it may be possible for the social meaning of young people's sexual drives to be channeled into something that is about getting the consent of a partner, not just finding a body. After all, this is how sexually curious women do it. They must use communication became they cannot use force.
350. "Shame forces a downward redefinition of oneself and causes the shamed person to feel transformed into something less than her prior, idealized image.Massaro, Shame, supra note 195, at 1901 (citing G. PIERS & M. SINGER, SHAME AND GUILT 26-27 (1971)).
351. "Shame forces a downward redefinition of oneself and causes the shamed person to feel transformed into something less than her prior, idealized image.Massaro, Shame, supra note 195, at 1901 (citing G. PIERS & M. SINGER, SHAME AND GUILT 26-27 (1971)).
352. AVISHAI MARGALIT, THE DECENT SOCIETY 117 (1996).
353. See supra notes 197-98 and accompanying text.
354. Massaro, Meanings, supra note 197, at 666.
355. Id. at 667.
356. See Whitman, supra note 230, at 1074-75 (discussing DE MONLENS, DE L'HUMANITE DANS LES LOIS CRIMINELLES (Paris, Felix Locquin 1830); WILLIAM GRAHAM SUMNER, FOLKWAYS (Ayer Co., 1940) (1906); and L.T. HOBHOUSE, MORALS IN EVOLUTION (2d rev. ed. 1908)).
357. See Whitman, supra note 230, at 1074-75 (discussing DE MONLENS, DE L'HUMANITE DANS LES LOIS CRIMINELLES (Paris, Felix Locquin 1830); WILLIAM GRAHAM SUMNER, FOLKWAYS (Ayer Co., 1940) (1906); and L.T. HOBHOUSE, MORALS IN EVOLUTION (2d rev. ed. 1908)).
358. See Whitman, supra note 230, at 1074-75 (discussing DE MONLENS, DE L'HUMANITE DANS LES LOIS CRIMINELLES (Paris, Felix Locquin 1830); WILLIAM GRAHAM SUMNER, FOLKWAYS (Ayer Co., 1940) (1906); and L.T. HOBHOUSE, MORALS IN EVOLUTION (2d rev. ed. 1908)).
359. See Whitman, supra note 230, at 1074-75 (discussing DE MONLENS, DE L'HUMANITE DANS LES LOIS CRIMINELLES (Paris, Felix Locquin 1830); WILLIAM GRAHAM SUMNER, FOLKWAYS (Ayer Co., 1940) (1906); and L.T. HOBHOUSE, MORALS IN EVOLUTION (2d rev. ed. 1908)).
360. See Whitman, supra note 230, at 1079. He notes that the Victorians mounted what was an honorable effort to found social morality on the maintenance of a carefully patrolled distinction between the human and the animal." As he explains, however, "[t]he belief that we should hide away our sins and our bodily functions is simply gone."
361. Whitman, supra note 230, at 1078 (quoting MAX SCHELER, Uber Scham und Schamgefufil, in 1 Schriften Aus Dem Nachlass 65, 69-77 (Maria Scheler ed., 1954)).
362. Whitman, supra note 230, at 1078 (quoting MAX SCHELER, Uber Scham und Schamgefufil, in 1 Schriften Aus Dem Nachlass 65, 69-77 (Maria Scheler ed., 1954)).
363. See supra notes 22-23 and accompanying text.
364. See, e.g., Lee Ellis, A Synthesized Biosocial Theory of Rape, 59 J. CONSULTING & CLINICAL PSYCHOL. 631, 632-33 (1991) (stating the proposition that "as a result of natural selection, the average sex drive of a male is stronger than that of a woman"); Palmer, supra note 22; Thornhill & Thornhill, supra note 22, at 363 ("Men have certain psychological traits that evolved by natural selection specifically in the context of coercive sex and made rape adaptive during human evolution.").
365. See, e.g., Lee Ellis, A Synthesized Biosocial Theory of Rape, 59 J. CONSULTING & CLINICAL PSYCHOL. 631, 632-33 (1991) (stating the proposition that "as a result of natural selection, the average sex drive of a male is stronger than that of a woman"); Palmer, supra note 22; Thornhill & Thornhill, supra note 22, at 363 ("Men have certain psychological traits that evolved by natural selection specifically in the context of coercive sex and made rape adaptive during human evolution.").
366. See, e.g., Lee Ellis, A Synthesized Biosocial Theory of Rape, 59 J. CONSULTING & CLINICAL PSYCHOL. 631, 632-33 (1991) (stating the proposition that "as a result of natural selection, the average sex drive of a male is stronger than that of a woman"); Palmer, supra note 22; Thornhill & Thornhill, supra note 22, at 363 ("Men have certain psychological traits that evolved by natural selection specifically in the context of coercive sex and made rape adaptive during human evolution.").
367. ROSS, supra note 218, at 5.
368. Id. at 74.
369. Mandatory jail sentences for drunk driving corresponds to increases in the numbers of "dismissals and not guilty findings." Id. at 58. Ross notes that judges in drunk driving cases (like juries in date rape cases) are aware of the stigma that accompanies a jail sentence and believe in a "moral distinction" between drunk drivers and other criminals. Id. at 56-57.
370. See Tamar Lewin, American Colleges Begin to Ask, Where Have All the Men Gone?, N.Y. TIMES, Dec. 6, 1998.
371. Sunstein, supra note 211, at 909.
372. For instance, when Michael Jordan wears a hoop earring, it becomes much easier for other men to do so.
373. See, e.g., Schaefer, supra note 150, at 61 (criticizing the sexual consent policy at Antioch).
374. Massaro, Meanings, supra note 197, at 649.
375. Lois Pineau writes that lovemaking should be viewed as "the practice of a communicative sexuality, one which combines the appropriate knowledge of the other with respect for the dialectics of desire." Pineau, supra note 146, at 234-35.
376. Martha Chamallas writes that "sexual conduct is mutual and acceptable when animating inducements are the parties' desires for sexual pleasure or for intimacy." Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. CAL. L. REV. 777, 862 (1988).