A sex equality approach to sexual assault

Annals of the New York Academy of Sciences

Volumn 989, Issue , 2003, Pages 265-275

  MacKinnon, Catharine A ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

Author keywords

Consent; Criminal law; Equality; Forced sex; Gender; Hierarchy; Inequality; Male dominance; Power; Rape; Sex; Sexual assault; Sexuality

Indexed keywords

CONFERENCE PAPER; CRIMINAL LAW; FEMALE; FEMININITY; HUMAN; INFORMED CONSENT; MALE; MASCULINITY; RAPE; SEX DIFFERENCE; SEXUAL ABUSE; SEXUAL CRIME; SEXUALITY; SOCIAL DOMINANCE; VICTIM;

EID: 0037634592     PISSN: 00778923     EISSN: None     Source Type: Book Series    
DOI: 10.1111/j.1749-6632.2003.tb07311.x     Document Type: Conference Paper

References (62)

1. Data are summarized in Catharine A. MacKinnon, Sex Equality [hereinafter, Sex Equality] 776-778 (Foundation Press, 2001).
2. See Mary P. Koss et al., No Safe Haven: Male Violence Against Women at Home, at Work, and in the Community 167-71 (1994) (analyzing major studies on rape prevalence done as of 1994, many showing approximately 20 percent of women subject to completed rape, some numbers lower, some higher); Diana E.H. Russell, Sexual Exploitation: Rape, Child Sexual Abuse, and Workplace Harassment 31, 35 (1984) (finding 9.5 percent of rapes reported and 24 percent of women experiencing rape in lifetime in large probability sample).
3. See Mary P. Koss et al., No Safe Haven: Male Violence Against Women at Home, at Work, and in the Community 167-71 (1994) (analyzing major studies on rape prevalence done as of 1994, many showing approximately 20 percent of women subject to completed rape, some numbers lower, some higher); Diana E.H. Russell, Sexual Exploitation: Rape, Child Sexual Abuse, and Workplace Harassment 31, 35 (1984) (finding 9.5 percent of rapes reported and 24 percent of women experiencing rape in lifetime in large probability sample).
4. The work of Diana E.H. Russell, David Finkelhor, Peggy Reeves Sanday, Diana Scully, and many others converges on this conclusion.
5. Andrea J. Sedlak & Diane D. Broadhurst, U.S. Department of Health & Human Services, Executive Summary of the Third National Incidence Study of Child Abuse and Neglect 14 (1996) found that 12 percent of all sexually abused children are abused by a female.
6. Before they reach the age of majority, 38 percent of girls report having been sexually abused, most by men close to them or in authority over them. The average age of first abuse is around ten. Diana E.H. Russell, "The Incidence and Prevalence of Intrafamilial and Extrafamilial Sexual Abuse of Female Children," in Handbook on Sexual Abuse of Children 19, 24 (Lenore E. Walker ed., 1986); Diana E.H. Russell, The Secret Trauma 99-100 (1986); Gail E. Wyatt, "The Sexual Abuse of Afro-American and White American Women in Childhood," 9 Child Abuse & Neglect 507 (1985) (finding 57 percent of sample of African American women and 67 percent of white American women report at least one incident of sexual abuse before age eighteen).
7. Before they reach the age of majority, 38 percent of girls report having been sexually abused, most by men close to them or in authority over them. The average age of first abuse is around ten. Diana E.H. Russell, "The Incidence and Prevalence of Intrafamilial and Extrafamilial Sexual Abuse of Female Children," in Handbook on Sexual Abuse of Children 19, 24 (Lenore E. Walker ed., 1986); Diana E.H. Russell, The Secret Trauma 99-100 (1986); Gail E. Wyatt, "The Sexual Abuse of Afro-American and White American Women in Childhood," 9 Child Abuse & Neglect 507 (1985) (finding 57 percent of sample of African American women and 67 percent of white American women report at least one incident of sexual abuse before age eighteen).
8. Before they reach the age of majority, 38 percent of girls report having been sexually abused, most by men close to them or in authority over them. The average age of first abuse is around ten. Diana E.H. Russell, "The Incidence and Prevalence of Intrafamilial and Extrafamilial Sexual Abuse of Female Children," in Handbook on Sexual Abuse of Children 19, 24 (Lenore E. Walker ed., 1986); Diana E.H. Russell, The Secret Trauma 99-100 (1986); Gail E. Wyatt, "The Sexual Abuse of Afro-American and White American Women in Childhood," 9 Child Abuse & Neglect 507 (1985) (finding 57 percent of sample of African American women and 67 percent of white American women report at least one incident of sexual abuse before age eighteen).
9. Data on sexually assaulted men includes documentation showing that 6 percent of the rapes reported to a survey of victims age 12 and over in 1996 were rapes of men by men. See Bureau of Justice Statistics, 2001 National Crime Victimization Survey, Bureau of Justice Statistics Bulletin Tbl 2, Tbl 38 (2001). Sexual abuse of boys has been found to be "common, underreported, underrecognized, and undertreated." William C. Holmes & Gail B. Slap, "Sexual Abuse of Boys: Definition, Prevalence, Correlates, Sequelae, and Management," 280 JAMA 1855, 1855 (1998).
10. Data on sexually assaulted men includes documentation showing that 6 percent of the rapes reported to a survey of victims age 12 and over in 1996 were rapes of men by men. See Bureau of Justice Statistics, 2001 National Crime Victimization Survey, Bureau of Justice Statistics Bulletin Tbl 2, Tbl 38 (2001). Sexual abuse of boys has been found to be "common, underreported, underrecognized, and undertreated." William C. Holmes & Gail B. Slap, "Sexual Abuse of Boys: Definition, Prevalence, Correlates, Sequelae, and Management," 280 JAMA 1855, 1855 (1998).
11. African American women are generally considered to be subjected to a higher incidence of rape than white women in the American population. See Diana E.H. Russell, Sexual Exploitation 82 (1984) (reporting all studies to date). Professor Russell's study found that the highest percentage of women to be subjected to at least one rape or attempted rape were Native American women (55 percent), followed by Jewish women (50 percent), white non-Jewish women (45 percent), African American women (44 percent), Latinas (30 percent), Asian women (17 percent), Filipinas (17 percent), and other ethnicities (28 percent). See id. at 83-84. Note that these are figures for women ever raped or victimzed by attempted rape, not the number of rapes. According to recent statistics, persons from households with low incomes experienced higher violent crime victimization rates than persons from wealthier households. For instance, persons from households with annual incomes below $7,500 were 26 times as likely as those from households with incomes of $75,000 to be rape and sexual assault victims, and have significantly higher rates of rape, sexual assault, and aggravated assault compared with persons in all other income groups. See Bureau of Justice Statistics, Criminal Victimization in the United States 2000, Table 14 (2000).
12. African American women are generally considered to be subjected to a higher incidence of rape than white women in the American population. See Diana E.H. Russell, Sexual Exploitation 82 (1984) (reporting all studies to date). Professor Russell's study found that the highest percentage of women to be subjected to at least one rape or attempted rape were Native American women (55 percent), followed by Jewish women (50 percent), white non-Jewish women (45 percent), African American women (44 percent), Latinas (30 percent), Asian women (17 percent), Filipinas (17 percent), and other ethnicities (28 percent). See id. at 83-84. Note that these are figures for women ever raped or victimzed by attempted rape, not the number of rapes. According to recent statistics, persons from households with low incomes experienced higher violent crime victimization rates than persons from wealthier households. For instance, persons from households with annual incomes below $7,500 were 26 times as likely as those from households with incomes of $75,000 to be rape and sexual assault victims, and have significantly higher rates of rape, sexual assault, and aggravated assault compared with persons in all other income groups. See Bureau of Justice Statistics, Criminal Victimization in the United States 2000, Table 14 (2000).
13. African American women are generally considered to be subjected to a higher incidence of rape than white women in the American population. See Diana E.H. Russell, Sexual Exploitation 82 (1984) (reporting all studies to date). Professor Russell's study found that the highest percentage of women to be subjected to at least one rape or attempted rape were Native American women (55 percent), followed by Jewish women (50 percent), white non-Jewish women (45 percent), African American women (44 percent), Latinas (30 percent), Asian women (17 percent), Filipinas (17 percent), and other ethnicities (28 percent). See id. at 83-84. Note that these are figures for women ever raped or victimzed by attempted rape, not the number of rapes. According to recent statistics, persons from households with low incomes experienced higher violent crime victimization rates than persons from wealthier households. For instance, persons from households with annual incomes below $7,500 were 26 times as likely as those from households with incomes of $75,000 to be rape and sexual assault victims, and have significantly higher rates of rape, sexual assault, and aggravated assault compared with persons in all other income groups. See Bureau of Justice Statistics, Criminal Victimization in the United States 2000, Table 14 (2000).
14. See, for example, Binaifer Nowrojee, Shattered Lives: Sexual Violence During the Rwandan_Genocide and its Aftermath 1-2 (1996)
15. R. v. Osolin [1993] 4 S.C.R. 595, 669 (Cory, J.).
16. The General Assembly of the United Nations in 1994 adopted a resolution condemning sexual violence that defined it as gender-based violence, G.A. Res. 48/104, U.N. GAOR, 48th Sess., at art. 4, U.N. Doc. A/48/49 (1994); 33 I.L.M. 1049. General Recommendation No. 19, Committee on the Elimination of Discrimination Against Women, 11th Sess., U.N. Doc. CEDAW/C/1992/L.1/Add. 15 (1992). The most farreaching international convention to date, the Convention of Belem do Para adopted by the Organization of American States in 1994, recognized in its preamble that violence against women "is... a manifestation of the historically unequal power relations between women and men." Convention of Belem do Para, 33 I.L.M. 1994. It declares that "every woman has the right to be free from violence in both the public and private spheres" Id. at art. 3, and required in detail that states parties and societies take action "to protect the right of every woman to be free from violence." Id. at art. 10. The Beijing Declaration and Platform of Action in 1995 expressly embraced the right of women "to have control over and decide freely and responsibly on matters related to their sexuality" as a human right, Beijing Declaration and Platform for Action of the United Nations Fourth World Conference on Women, U.N. Doc. A/CONF.177/20 (1995) at ¶ 96, and condemned violence against women as "a manifestation of the historically unequal power relations between men and women, which have led to domination over and discrimination against women by men," all expressly analyzed as social realities. Id. at ¶ 118. The Committee of Ministers of the Council of Europe recently "reaffirm[ed] that violence towards women is the result of an imbalance of power between men and Women and is leading to serious discrimination against the female sex, both within society and within the family." Council of Europe, Committee of Ministers, Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence (30 April 2002).
17. See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (recognizing hostile environment sexual harassment on facts of repeated rape as sex discrimination in employment); Alexander v. Yale University, 631 F.2d 178 (2d Cir. 1980) (recognizing sexual harassment in education as prohibited under Title IX prohibition on sex discrimination); Franklin v. Gwinnet County Public Schools, 503 U.S. 50 (1992), (permitting damages for Title IX sexual harassment).
18. See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (recognizing hostile environment sexual harassment on facts of repeated rape as sex discrimination in employment); Alexander v. Yale University, 631 F.2d 178 (2d Cir. 1980) (recognizing sexual harassment in education as prohibited under Title IX prohibition on sex discrimination); Franklin v. Gwinnet County Public Schools, 503 U.S. 50 (1992), (permitting damages for Title IX sexual harassment).
19. See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) (recognizing hostile environment sexual harassment on facts of repeated rape as sex discrimination in employment); Alexander v. Yale University, 631 F.2d 178 (2d Cir. 1980) (recognizing sexual harassment in education as prohibited under Title IX prohibition on sex discrimination); Franklin v. Gwinnet County Public Schools, 503 U.S. 50 (1992), (permitting damages for Title IX sexual harassment).
20. Dothard v. Rawlinson, 433 U.S. 321, 336 (1977) (permitting women to be excluded from contact positions in high security prison employment on the basis of sex because of capacity to be raped). The Court may have been thinking of sexual biology, but the sexed reality was nonetheless observed.
21. 42 U.S.C. § 13981 (1994).
22. See United States v. Morrison, 529 U.S. 598, 635-36 (2000).
23. Most sexual assaults remain unreported, unprosecuted, and unremedied. See, for example, National Victim Center, Crime Victims Research and Treatment Center, Rape in America 5 (1992) (finding that 16 percent of rapes are reported); Staff of Senate Comm. on the Judiciary, 103rd Cong., The Response to Rape: Detours on the Road to Equal Justice iii (Comm. Print 1993) (drawing on data from several jurisdictions, concluding that 98 percent of rape victims "never see their attacker caught, tried and imprisoned.")
24. Most sexual assaults remain unreported, unprosecuted, and unremedied. See, for example, National Victim Center, Crime Victims Research and Treatment Center, Rape in America 5 (1992) (finding that 16 percent of rapes are reported); Staff of Senate Comm. on the Judiciary, 103rd Cong., The Response to Rape: Detours on the Road to Equal Justice iii (Comm. Print 1993) (drawing on data from several jurisdictions, concluding that 98 percent of rape victims "never see their attacker caught, tried and imprisoned.")
25. An example is Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981).
26. The manifest ineffectiveness of existing laws against sexual assault was amply demonstrated before the Congress that passed the Violence Against Women Act. See Women and Violence: Hearings Before the Senate Comm. on the Judiciary, 101 Cong. (1990). Estimates are that the likelihood of a rape complaint ending in conviction is 2 to 5 percent of rapes. See Joan McGregor, "Introduction to Symposium on Philosophical Issues in Rape Law," 11 Law & Phil. 1, 2 (1992).
27. The manifest ineffectiveness of existing laws against sexual assault was amply demonstrated before the Congress that passed the Violence Against Women Act. See Women and Violence: Hearings Before the Senate Comm. on the Judiciary, 101 Cong. (1990). Estimates are that the likelihood of a rape complaint ending in conviction is 2 to 5 percent of rapes. See Joan McGregor, "Introduction to Symposium on Philosophical Issues in Rape Law," 11 Law & Phil. 1, 2 (1992).
28. The Antioch College Sexual Offense Prevention Policy (June 8, 1996), reproduced in Sex Equality 836-837, does.
29. The model was recently pungently described by a female-to-male transsexed person and long-time advocate of S/M (sadism and masochism) in sex, when asked why he transsexed: "[r]unning the fuck is an integral part of maleness in our society." Patrick Califia, Transman Seeks Sex Life: T 4 U, Village Voice, June 26-July 2, 2002
30. See, e.g., Commonwealth v. Berkowitz, 609 A.2d 1338 (Pa. Super. Ct.), aff'd 641 A.2d 1161 (Pa. 1994). The Pennsylvania legislature attempted to address the problem after public outcry, see, e.g., 18 Pa. Cons. Stat.. Ann. § 3124.1, but it is unclear if they did. One better approach can be seen in R. v. Ewanchuk, [1999] 169 D.L.R. 4th 193 (Can.) (holding that consent is a purely subjective fact to be determined by trial judge by ascertaining complainant's state of mind toward sexual touching when it occurred and that consent out of fear is not freely given, hence ineffective).
31. See, e.g., Commonwealth v. Berkowitz, 609 A.2d 1338 (Pa. Super. Ct.), aff'd 641 A.2d 1161 (Pa. 1994). The Pennsylvania legislature attempted to address the problem after public outcry, see, e.g., 18 Pa. Cons. Stat.. Ann. § 3124.1, but it is unclear if they did. One better approach can be seen in R. v. Ewanchuk, [1999] 169 D.L.R. 4th 193 (Can.) (holding that consent is a purely subjective fact to be determined by trial judge by ascertaining complainant's state of mind toward sexual touching when it occurred and that consent out of fear is not freely given, hence ineffective).
32. See, e.g., Commonwealth v. Berkowitz, 609 A.2d 1338 (Pa. Super. Ct.), aff'd 641 A.2d 1161 (Pa. 1994). The Pennsylvania legislature attempted to address the problem after public outcry, see, e.g., 18 Pa. Cons. Stat.. Ann. § 3124.1, but it is unclear if they did. One better approach can be seen in R. v. Ewanchuk, [1999] 169 D.L.R. 4th 193 (Can.) (holding that consent is a purely subjective fact to be determined by trial judge by ascertaining complainant's state of mind toward sexual touching when it occurred and that consent out of fear is not freely given, hence ineffective).
33. Women are not alone in this. See, e.g., R. v. R.J.S. [1994] 123 Nfld & P.E.I.R. 317 (finding that erection may be sufficient evidence of consent to sex).
34. Examples are Boro v. Superior Court, 163 Cal. App. 3d 1224, 210 Cal. Rptr. 122 (1985) and People v. Ogunmola, 238 Cal. Rptr. 300 (Cal. Ct. App. 2d Dist. 1987) involving doctors and patients. In Boro, the patient, who had permitted sex in the guise of treatment, was found to have consented. In Ogunmola, two patients who consented to an examination but were penetrated by the doctor's penis instead were found not to have consented. California partially addressed the Boro situation by statute prohibiting sexual intercourse "procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear" with a spousal exception. Cal. Penal Code §266C. (The spousal exceptional was removed by amendment in 1994, see Cal. Penal Code §266C.) Recent developments in the law of rape by fraud are discussed in Patricia J. Falk, "Rape by Fraud and Rape by Coercion," 64 Brook. L. Rev. 39, 89-131 (1998). See also Jane E. Larson, "Women Understand So Little, They Call My Good Nature "Deceit": A Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374 (1993).
35. Examples are Boro v. Superior Court, 163 Cal. App. 3d 1224, 210 Cal. Rptr. 122 (1985) and People v. Ogunmola, 238 Cal. Rptr. 300 (Cal. Ct. App. 2d Dist. 1987) involving doctors and patients. In Boro, the patient, who had permitted sex in the guise of treatment, was found to have consented. In Ogunmola, two patients who consented to an examination but were penetrated by the doctor's penis instead were found not to have consented. California partially addressed the Boro situation by statute prohibiting sexual intercourse "procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear" with a spousal exception. Cal. Penal Code §266C. (The spousal exceptional was removed by amendment in 1994, see Cal. Penal Code §266C.) Recent developments in the law of rape by fraud are discussed in Patricia J. Falk, "Rape by Fraud and Rape by Coercion," 64 Brook. L. Rev. 39, 89-131 (1998). See also Jane E. Larson, "Women Understand So Little, They Call My Good Nature "Deceit": A Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374 (1993).
36. Examples are Boro v. Superior Court, 163 Cal. App. 3d 1224, 210 Cal. Rptr. 122 (1985) and People v. Ogunmola, 238 Cal. Rptr. 300 (Cal. Ct. App. 2d Dist. 1987) involving doctors and patients. In Boro, the patient, who had permitted sex in the guise of treatment, was found to have consented. In Ogunmola, two patients who consented to an examination but were penetrated by the doctor's penis instead were found not to have consented. California partially addressed the Boro situation by statute prohibiting sexual intercourse "procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear" with a spousal exception. Cal. Penal Code §266C. (The spousal exceptional was removed by amendment in 1994, see Cal. Penal Code §266C.) Recent developments in the law of rape by fraud are discussed in Patricia J. Falk, "Rape by Fraud and Rape by Coercion," 64 Brook. L. Rev. 39, 89-131 (1998). See also Jane E. Larson, "Women Understand So Little, They Call My Good Nature "Deceit": A Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374 (1993).
37. Examples are Boro v. Superior Court, 163 Cal. App. 3d 1224, 210 Cal. Rptr. 122 (1985) and People v. Ogunmola, 238 Cal. Rptr. 300 (Cal. Ct. App. 2d Dist. 1987) involving doctors and patients. In Boro, the patient, who had permitted sex in the guise of treatment, was found to have consented. In Ogunmola, two patients who consented to an examination but were penetrated by the doctor's penis instead were found not to have consented. California partially addressed the Boro situation by statute prohibiting sexual intercourse "procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear" with a spousal exception. Cal. Penal Code §266C. (The spousal exceptional was removed by amendment in 1994, see Cal. Penal Code §266C.) Recent developments in the law of rape by fraud are discussed in Patricia J. Falk, "Rape by Fraud and Rape by Coercion," 64 Brook. L. Rev. 39, 89-131 (1998). See also Jane E. Larson, "Women Understand So Little, They Call My Good Nature "Deceit": A Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374 (1993).
38. Examples are Boro v. Superior Court, 163 Cal. App. 3d 1224, 210 Cal. Rptr. 122 (1985) and People v. Ogunmola, 238 Cal. Rptr. 300 (Cal. Ct. App. 2d Dist. 1987) involving doctors and patients. In Boro, the patient, who had permitted sex in the guise of treatment, was found to have consented. In Ogunmola, two patients who consented to an examination but were penetrated by the doctor's penis instead were found not to have consented. California partially addressed the Boro situation by statute prohibiting sexual intercourse "procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear" with a spousal exception. Cal. Penal Code §266C. (The spousal exceptional was removed by amendment in 1994, see Cal. Penal Code §266C.) Recent developments in the law of rape by fraud are discussed in Patricia J. Falk, "Rape by Fraud and Rape by Coercion," 64 Brook. L. Rev. 39, 89-131 (1998). See also Jane E. Larson, "Women Understand So Little, They Call My Good Nature "Deceit": A Feminist Rethinking of Seduction, 93 Colum. L. Rev. 374 (1993).
39. For general discussion of multiplicity, see Daniel Brown, Alan W. Scheflin, & D. Corydon Hammond et al., Memory, Trauma Treatment, and the Law (1998); for a brilliant treatment of the subject, see Harvey Schwartz, Dialogues with Forgotten Voices (2000). See also Carole Goettman, George B. Greaves & Philip M. Coons, Multiple Personality and Dissociation, 1791-1992, A Complete Bibliography (1994) and Sabra Owens, Criminal Responsibility and Multiple Personality Defendants (American Bar Association, 1997).
40. For general discussion of multiplicity, see Daniel Brown, Alan W. Scheflin, & D. Corydon Hammond et al., Memory, Trauma Treatment, and the Law (1998); for a brilliant treatment of the subject, see Harvey Schwartz, Dialogues with Forgotten Voices (2000). See also Carole Goettman, George B. Greaves & Philip M. Coons, Multiple Personality and Dissociation, 1791-1992, A Complete Bibliography (1994) and Sabra Owens, Criminal Responsibility and Multiple Personality Defendants (American Bar Association, 1997).
41. For general discussion of multiplicity, see Daniel Brown, Alan W. Scheflin, & D. Corydon Hammond et al., Memory, Trauma Treatment, and the Law (1998); for a brilliant treatment of the subject, see Harvey Schwartz, Dialogues with Forgotten Voices (2000). See also Carole Goettman, George B. Greaves & Philip M. Coons, Multiple Personality and Dissociation, 1791-1992, A Complete Bibliography (1994) and Sabra Owens, Criminal Responsibility and Multiple Personality Defendants (American Bar Association, 1997).
42. For general discussion of multiplicity, see Daniel Brown, Alan W. Scheflin, & D. Corydon Hammond et al., Memory, Trauma Treatment, and the Law (1998); for a brilliant treatment of the subject, see Harvey Schwartz, Dialogues with Forgotten Voices (2000). See also Carole Goettman, George B. Greaves & Philip M. Coons, Multiple Personality and Dissociation, 1791-1992, A Complete Bibliography (1994) and Sabra Owens, Criminal Responsibility and Multiple Personality Defendants (American Bar Association, 1997).
43. See, for example, State v. Thompson, 792 P.2d 1103 (Mont. 1990) (defendant high school principal allegedly forced student to submit to sexual intercourse by threatening to prevent her from graduating from high school; court affirmed dismissal of sexual assault charges because of lack of physical force). The Supreme Court of Canada found a rape threat to be a threat of severe bodily harm in R. v. McCraw, [1991] 3 S.C.R. 72, a conclusion far from obvious to many courts in the world.
44. See, for example, State v. Thompson, 792 P.2d 1103 (Mont. 1990) (defendant high school principal allegedly forced student to submit to sexual intercourse by threatening to prevent her from graduating from high school; court affirmed dismissal of sexual assault charges because of lack of physical force). The Supreme Court of Canada found a rape threat to be a threat of severe bodily harm in R. v. McCraw, [1991] 3 S.C.R. 72, a conclusion far from obvious to many courts in the world.
45. See Morrison Torrey, "When Will We Be Believed?", 24 U.C. Davis Law Review 1013; Robin West, "Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment," 42 Univ. Fla. L. Rev. 45, 66-70 (1990). See also Jaye Sitton, Comment, "Old Wine in New Bottles: The 'Marital' Rape Allowance," 72 N. C. L. Rev. 261, 280-281 (1993) (describing extension of traditional marital rape law's doctrine of implied consent to cohabitants and "voluntary social companions.")
46. See Morrison Torrey, "When Will We Be Believed?", 24 U.C. Davis Law Review 1013; Robin West, "Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment," 42 Univ. Fla. L. Rev. 45, 66-70 (1990). See also Jaye Sitton, Comment, "Old Wine in New Bottles: The 'Marital' Rape Allowance," 72 N. C. L. Rev. 261, 280-281 (1993) (describing extension of traditional marital rape law's doctrine of implied consent to cohabitants and "voluntary social companions.")
47. See Morrison Torrey, "When Will We Be Believed?", 24 U.C. Davis Law Review 1013; Robin West, "Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment," 42 Univ. Fla. L. Rev. 45, 66-70 (1990). See also Jaye Sitton, Comment, "Old Wine in New Bottles: The 'Marital' Rape Allowance," 72 N. C. L. Rev. 261, 280-281 (1993) (describing extension of traditional marital rape law's doctrine of implied consent to cohabitants and "voluntary social companions.")
48. For the standard's initial articulation, see Meritor Savings Bank v. Vinson, 477 U.S. 57, 69 (1986), a sexual harassment case distinguishing between the criminal law standard of "voluntary" sex and the civil equality standard of "unwelcome" sex. For further discussion, see Sex Equality 977-989.
49. For the standard's initial articulation, see Meritor Savings Bank v. Vinson, 477 U.S. 57, 69 (1986), a sexual harassment case distinguishing between the criminal law standard of "voluntary" sex and the civil equality standard of "unwelcome" sex. For further discussion, see Sex Equality 977-989.
50. An excellent examination of this topic is Stephen Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Harvard University Press, 1998).
51. Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986).
52. See People v. Warren, 446 N.E.2d 591 (Ill. App. Ct. 1983) (finding of stranger rape allegations that 6′3″ 185-pound defendant, "apart from picking up [5′2″ 100-pound woman] complainant and carrying her into and out of the woods" where he had sex with her, insufficient force, and faulting complainant for failing to resist). Analysis of the role of women's and men's different average height and weight in the context of potential rape can be found in Dothard v. Rawlinson, 433 U.S. 321 (1977) (holding that a particular minimum height/weight standard for prison guards at male-only prisons discriminated against women on the basis of sex).
53. See People v. Warren, 446 N.E.2d 591 (Ill. App. Ct. 1983) (finding of stranger rape allegations that 6′3″ 185-pound defendant, "apart from picking up [5′2″ 100-pound woman] complainant and carrying her into and out of the woods" where he had sex with her, insufficient force, and faulting complainant for failing to resist). Analysis of the role of women's and men's different average height and weight in the context of potential rape can be found in Dothard v. Rawlinson, 433 U.S. 321 (1977) (holding that a particular minimum height/weight standard for prison guards at male-only prisons discriminated against women on the basis of sex).
54. My impression of marital rape cases where they are prosecuted is that the amount of force required for a conviction is often extreme, compared with what is required in stranger rape cases in the same jurisdictions.
55. Some states have prohibitions similar to statutory rape for prison guards, e.g. Conn. Penal Code § 53a-71.
56. One of the few legal discussions of this question took place in the Michael M. case, Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981), the Supreme Court justices, majority and dissenting alike, falling all over each other not to question whether women and men were equal in sex in the name of sexual egalitarianism.
57. See, for example, State in the Interest of M. T. S., 609 A.2d 1266 (N.J. 1992).
58. Before they reach the age of majority, 38 percent of girls report having been sexually abused, most by men close to them or in authority over them. See Diana E. H. Russell, "The Incidence and prevalence of intrafamilial and Extrafamilial Sexual Abuse of Female Children," in Handbook on Sexual Abuse of Children 19, 24 (Lenore E. Walker ed., 1998) (also finding 16 Percent of girls abused by a family member); Diana E.H. Russell, The Secret Trauma 99-100 (1986).
59. Before they reach the age of majority, 38 percent of girls report having been sexually abused, most by men close to them or in authority over them. See Diana E. H. Russell, "The Incidence and prevalence of intrafamilial and Extrafamilial Sexual Abuse of Female Children," in Handbook on Sexual Abuse of Children 19, 24 (Lenore E. Walker ed., 1998) (also finding 16 Percent of girls abused by a family member); Diana E.H. Russell, The Secret Trauma 99-100 (1986).
60. World Health Organization, World Report on Violence and Health 149 (Etienne G. Krug et al., eds, Geneva 2002) (finding "up to one-third of adolescent girls report their first sexual experience as being forced.").
61. This is a variant on the test in Prosecutor v. Akayesu, Case No. ICTR 96 4 T (1998) addressing rape in the Rwandan genocide. There, the coercive conditions were provided by the other jurisdictional requisites under the Tribunal's statute, which include crimes against humanity and genocide. It is also enacted at Cal. Civ. Code 52.4 (c) (2) as a civil claim for gender-based discrimination.
62. This arrangement could make a reconstructed definition of consent into an affirmative defense.