Putting sex to work

Denver University Law Review

Volumn 75, Issue 4, 1998, Pages 1139-1180

  Franke, Katherine M ^a,b  

^a FORDHAM UNIVERSITY   (United States)

^b UNIVERSITY OF DENVER   (United States)

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[No Author keywords available]

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EID: 11544271138     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (322)

1. The Blessed Virgin Mary seems to appear all the time in Queens. In fact, there are ads in the subway announcing a phone number you can call, for only $1.50 a minute, to receive information about the most recent sightings of the BVM. Of course, I have always wondered, why Queens of all places? Carol Rose recently answered this question for me: Lots of Catholics, of course.
2. MICHEL FOUCAULT, LANGUAGE, COUNTER-MEMORY, PRACTICE: SELECTED ESSAYS AND INTERVIEWS 148 (Donald F. Bouchard ed. & Donald F. Bouchard & Sherry Simon trans., 1977) [hereinafter FOUCAULT, LANGUAGE].
3. MICHEL FOUCAULT, THE HISTORY OF SEXUALITY 103 (Robert Hurley trans., Vintage Books 1990) (1976) [hereinafter FOUCAULT, THE HISTORY OF SEXUALITY].
4. DAVID HERBERT DONALD, LINCOLN 389 (1995). To be sure, in using this phrase, Lincoln was not referring to sex but to the difficulty he was having in filling out the ranks of the Union Army in 1862.
5. EVE KOSOFSKY SEDGWICK, BETWEEN MEN: ENGLISH LITERATURE AND MALE HOMOSOCIAL DESIRE 6 (1985).
6. See Katherine M. Franke, What's Wrong With Sexual Harassment?, 49 STAN. L. REV. 691 (1997).
7. Id. at 730-47.
8. Id. at 762-72.
9. See infra notes 49-59 and accompanying text.
10. See, e.g., F.E. WILLIAMS, PAPUANS OF THE TRANS-FLY 158 (1936).
11. See, e.g., GILBERT H. HERDT, GUARDIANS OF THE FLUTES 1 (1981) [hereinafter HERDT, GUARDIANS OF THE FLUTES] ("Why should a society of manly warriors believe that a boy must be orally inseminated to become masculine? What happens when this conviction is implemented through prolonged ritualized homosexuality?"); Gilbert H. Herdt, Ritualized Homosexual Behavior in the Male Cults of Melanesia, 1862-1983: An Introduction, in RITUALIZED HOMOSEXUALITY IN MELANESIA 1 (Gilbert H. Herdt ed., 1984) [hereinafter Herdt, Ritualized Homosexual Behavior]; Gerald W. Creed, Sexual Subordination: Institutionalized Homosexuality and Social Control in Melanesia, 23 ETHNOLOGY 157, 158 (1984).
12. See, e.g., GILBERT H. HERDT, GUARDIANS OF THE FLUTES 1 (1981) [hereinafter HERDT, GUARDIANS OF THE FLUTES] ("Why should a society of manly warriors believe that a boy must be orally inseminated to become masculine? What happens when this conviction is implemented through prolonged ritualized homosexuality?"); Gilbert H. Herdt, Ritualized Homosexual Behavior in the Male Cults of Melanesia, 1862-1983: An Introduction, in RITUALIZED HOMOSEXUALITY IN MELANESIA 1 (Gilbert H. Herdt ed., 1984) [hereinafter Herdt, Ritualized Homosexual Behavior]; Gerald W. Creed, Sexual Subordination: Institutionalized Homosexuality and Social Control in Melanesia, 23 ETHNOLOGY 157, 158 (1984).
13. See, e.g., GILBERT H. HERDT, GUARDIANS OF THE FLUTES 1 (1981) [hereinafter HERDT, GUARDIANS OF THE FLUTES] ("Why should a society of manly warriors believe that a boy must be orally inseminated to become masculine? What happens when this conviction is implemented through prolonged ritualized homosexuality?"); Gilbert H. Herdt, Ritualized Homosexual Behavior in the Male Cults of Melanesia, 1862-1983: An Introduction, in RITUALIZED HOMOSEXUALITY IN MELANESIA 1 (Gilbert H. Herdt ed., 1984) [hereinafter Herdt, Ritualized Homosexual Behavior]; Gerald W. Creed, Sexual Subordination: Institutionalized Homosexuality and Social Control in Melanesia, 23 ETHNOLOGY 157, 158 (1984).
14. E.g., Merrill Goozner, NYC Cut in Crime Has a Brutish Side, CHI. TRIB., Aug. 16, 1997, at 1.
15. See id.
16. See discussion infra Part IV.
17. MICHEL FOUCAULT, POLITICS, PHILOSOPHY, CULTURE: INTERVIEWS AND OTHER WRITINGS 1977-1984, at 200 (Lawrence D. Kritzman ed. & Alan Sheridan et al. trans., 1988) [hereinafter FOUCAULT, POLITICS].
18. Vikki Bell, "Beyond the 'Thorny Question'": Feminism, Foucault and the Desexualisation of Rape, 19 INT'L J. SOC. L. 83, 89 (1991).
19. See discussion infra Part V.
20. FOUCAULT, THE HISTORY OF SEXUALITY, supra note 3, at 105.
21. HERDT, GUARDIANS OF THE FLUTES, supra note 11.
22. Herdt provides the name "Sambia" as a pseudonym for the tribe's true name, in order to "protect the identities of those who trusted [him] and to guard the community's ritual cult, which still remains a secretive way of life in the strict sense of the term. Sambia men explicitly stipulated that no part of [his] original material be allowed to circulate within Papua New Guinea." Id. at xvi.
23. Herdt summarized the Sambia beliefs as follows: Femininity is thought to be an inherent development in a girl's continuous association with her mother. Masculinity, on the other hand, is not an intrinsic result of maleness; it is an achievement distinct from the mere endowment of male genitals. Masculine reproductive maturity must be artificially induced, by means of strict adherence to ritual techniques. Id. at 160.
24. Id. at 204-05.
25. Id. at 223.
26. Herdt observes that cane-swallowing was abandoned sometime around 1964 because it was too painful. See id. at 223 & n.29.
27. See id. at 224.
28. Id. at 224-25.
29. Id. at 226.
30. Id. at 262-65.
31. "Ingestive rites" involve the practice of swallowing and absorbing substances believed essential in effectuating masculine growth. See id. at 227.
32. Id. at 232.
33. Id. at 234.
34. Id. at 236.
35. Id. at 252; see also id. at 281-82 (noting an interim stage when boys approaching puberty take an active role in motivating younger boys to join them as fellators).
36. Id. at 252.
37. Id.
38. Id. at 233.
39. See id. at 3 n.2 ("It is crucial that we distinguish from the start between homosexual identity and behavior.").
40. Id. at 2-3.
41. Id.
42. See id. at 8.
43. See Herdt, Ritualized Homosexual Behavior, supra note 11, at 2 (citing a number of early Melanesian studies that ignored same-sex seminal practices).
44. See id. at 3 (recognizing that, as of 1984, "sex remains one of the 'taboo' subjects in anthropology"); Kath Weston, Lesbian/Gay Studies in the House of Anthropology, 22 ANN. REV. ANTHROPOLOGY 339, 339 (1993) ("Throughout the first half of the century, most allusions by anthropologists to homosexual behavior remained as veiled in ambiguity and as couched in judgment as were references to homosexuality in the dominant discourse of the surrounding society."). Herdt attributed three additional factors to this failure: (1) a lack of data; (2) "the tendency for writers still to view homosexual behavior as universally deviant, unnatural, or perverse;" and (3) the use of authorities viewing only heterosexuality as "normal." Herdt, Ritualized Homosexual Behavior, supra note 11, at 3.
45. See id. at 3 (recognizing that, as of 1984, "sex remains one of the 'taboo' subjects in anthropology"); Kath Weston, Lesbian/Gay Studies in the House of Anthropology, 22 ANN. REV. ANTHROPOLOGY 339, 339 (1993) ("Throughout the first half of the century, most allusions by anthropologists to homosexual behavior remained as veiled in ambiguity and as couched in judgment as were references to homosexuality in the dominant discourse of the surrounding society."). Herdt attributed three additional factors to this failure: (1) a lack of data; (2) "the tendency for writers still to view homosexual behavior as universally deviant, unnatural, or perverse;" and (3) the use of authorities viewing only heterosexuality as "normal." Herdt, Ritualized Homosexual Behavior, supra note 11, at 3.
46. See Gilbert Herdt, Representations of Homosexuality: An Essay on Cultural Ontology and Historical Comparison Part II, 1 J. HIST. SEXUALITY 603, 607 (1991) [hereinafter Herdt, Representations of Homosexuality] (addressing the negative response of white missionaries, government officers, and Western agents to the "boy-inseminating man").
47. See id. at 607-08 (1991). One must wonder how Herdt's published work may have contributed to the extinction of the very practices he set out to document.
48. HERDT, GUARDIANS OF THE FLUTES, supra note 11.
49. RITUALIZED HOMOSEXUALITY IN MELANESIA, supra note 11 (collection of articles addressing same-sex sexual practices within different societies in the South Pacific region); RITUALS OF MANHOOD: MALE INITIATION IN PAPUA NEW GUINEA (Gilbert Herdt ed., 1982) (analyzing male maturation rites in Papua New Guinea).
50. RITUALIZED HOMOSEXUALITY IN MELANESIA, supra note 11 (collection of articles addressing same-sex sexual practices within different societies in the South Pacific region); RITUALS OF MANHOOD: MALE INITIATION IN PAPUA NEW GUINEA (Gilbert Herdt ed., 1982) (analyzing male maturation rites in Papua New Guinea).
51. GILBERT HERDT, SAME SEX, DIFFERENT CULTURES: GAYS AND LESBIANS ACROSS CULTURES 81-88, 112-23 (1997) [hereinafter HERDT, SAME SEX, DIFFERENT CULTURES].
52. Deborah A. Elliston, Erotic Anthropology: "Ritualized Homosexuality" in Melanesia and Beyond, 22 AM. ETHNOLOGIST 848, 848 (1995).
53. See, e.g., Herdt, Representations of Homosexuality, supra note 43, at 606-07.
54. Herdt observes: "[M]en are not simply biding time by fooling around with initiates. Boys were their first erotic partners. For this reason, and other personality factors, bachelors are sometimes passionately fond of particular boys." HERDT, GUARDIANS OF THE FLUTES, supra note 11, at 288.
55. See id. at 282, 319; Herdt, Representations of Homosexuality, supra note 43, at 611 (discussing the protections and bonds that may develop between bachelors and boys).
56. Herdt, Representations of Homosexuality, supra note 43, at 611.
57. See Franke, supra note 6, at 729-47.
58. Elliston, supra note 48, at 849.
59. See Herdt, Representations of Homosexuality, supra note 43, at 603 ("[D]o boy-inseminating relationships, one must wonder, express erotic desire?").
60. Herdt recognizes and rejects two interpretative trends which largely dismiss the erotic nature of Melanesian homosexuality. The first trend treats such practices as "purely customary ritual practice." Id. at 606. The second approach acknowledges the erotic element, but interprets it as a form of bisexuality. Id. at 607.
61. Id. at 606-07.
62. Id. at 607.
63. Creed, supra note 11, at 160.
64. See Herdt, Representations of Homosexuality, supra note 43, at 613 ("It is a necessary redundancy to say that without sexual excitement - as signified by erections in the inspirer and bawdy enthusiasm in the inspired boy - these social practices would not only lie beyond the erotic but, more elementarily, would not exist.").
65. As noted by Thorkil Vanggaard: It appears, then, that, emotions and impulses other than erotic ones may cause erection and genital activity in men; just as, in the baboon, mounting and penetrating to show superiority, or sitting on guard with legs apart and penis threateningly exposed show erection of an asexual origin. . . . The same will probably have been the case with the Bronze Age people of Scandanavia - or of northern Italy for that matter - since they equated phallic power with the power of the spear, the sword and the axe, as we can see from their petroglyphs. THORKIL VANGGAARD, PHALLÓS: A SYMBOL AND ITS HISTORY IN THE MALE WORLD 102 (Thorkil Vanggaard trans., Int'l Univs. Press, Inc. 1972).
66. See, e.g., RON LANGEVIN, SEXUAL STRANDS: UNDERSTANDING AND TREATING SEXUAL ANOMOLIES IN MEN 8 (1983); Joost Dekker & Walter Everaerd, Psychological Determinants of Sexual Arousal: A Review, 27 BEHAV. RES. & THERAPY 353, 361 (1989).
67. See, e.g., RON LANGEVIN, SEXUAL STRANDS: UNDERSTANDING AND TREATING SEXUAL ANOMOLIES IN MEN 8 (1983); Joost Dekker & Walter Everaerd, Psychological Determinants of Sexual Arousal: A Review, 27 BEHAV. RES. & THERAPY 353, 361 (1989).
68. ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE HUMAN MALE 164-65 (1948).
69. Id. at 165.
70. Dekker & Everaerd, supra note 62, at 361.
71. Elliston, supra note 48, at 854.
72. Franke, supra note 6, at 740.
73. See AMY RICHLIN, THE GARDEN OF PRIAPUS: SEXUALITY AND AGGRESSION IN ROMAN HUMOR 215, 256 (rev. ed., Oxford Univ. Press 1992) (1983).
74. See VANGGAARD, supra note 61, at 101 ("'A favourite Persian punishment for strangers caught in the Harem or Gynæceum is to strip and throw them and expose them to the embraces of the grooms and Negro slaves.'" (quoting RICHARD BURTON, THOUSAND NIGHTS AND A NIGHT, Terminal Essay X, at 235 (1885))).
75. As Michel Foucault noted: "Sexuality is not the most intractable element in power relations, but rather one of these endowed with the greatest instrumentality: useful for the greatest number of maneuvers and capable of serving as a point of support, as a linchpin, for the most varied strategies." FOUCAULT, THE HISTORY OF SEXUALITY, supra note 3, at 103.
76. See SEDGWICK, supra note 5, at 5 (recognizing that aspects of the Sambia culture fit within her "homosocial continuum").
77. Id. at 7.
78. One clear example of this polarization is found in the many spatial segregations evidenced by the Sambia culture. The male "clubhouse," site of many of the masculinization rites, is off limits to women. See HERDT, GUARDIANS OF THE FLUTES, supra note 11, at 74-75. Similarly, female "menstrual huts" are strictly avoided by men. See id. at 75. This spatial segregation operates in many other areas including domiciles and footpaths. See id. at 75-76.
79. See id. at 28-29.
80. HERDT, SAME SEX, DIFFERENT CULTURES, supra note 47, at 113.
81. HERDT, GUARDIANS OF THE FLUTES, supra note 11, at 162.
82. Id. at 244-45.
83. Herdt observed that, in the Sambia culture: Men hold that women may pollute them by simply "stepping over" . . ., above, or beside them, or by touching persons, food, or possessions. During their menstrual periods women leave their houses and retire to the menstrual hut, which is situated slightly below the hamlet. Men and initiates completely avoid the area of the hut Likewise, women must not walk near the men's clubhouse or look inside. Id. at 75.
84. Domestic arrangements are also organized around the danger of male pollution by women. Upon entering a house, women immediately must squat near the doorway to the house, thereby reducing the possibility of transferring her polluting fluids to men in the house. See id. at 75-76.
85. GILBERT HERDT & ROBERT J. STOLLER, INTIMATE COMMUNICATIONS: EROTICS AND THE STUDY OF CULTURE 60 (1990).
86. Id. at 62.
87. See id. at 63. Interestingly enough, more semen is necessary to make a girl than a boy. See id. at 64.
88. Id. at 65.
89. Id. at 62.
90. Id.; see supra note 21 and accompanying text (discussing the inherent nature of female maturation versus the artificial nature of male maturation in the Sambia belief structure).
91. Herdt, Representations of Homosexuality, supra note 43, at 605-06.
92. Id. at 607.
93. HERDT, SAME SEX, DIFFERENT CULTURES, supra note 47, at 121.
94. Elliston, supra note 48, at 855.
95. See SEDGWICK, supra note 5, at 1. As Sedgwick describes: "Male homosocial desire" is intended to mark both discriminations and paradoxes. "Homosocial desire," to begin with, is a kind of oxymoron. "Homosocial" is a word occasionally used in history and the social sciences, where it describes social bonds between persons of the same sex; it is a neologism, obviously formed by analogy with "homosexual," and just as obviously meant to be distinguished from "homosexual." In fact, it is applied to such activities as "male bonding," which may, as in our society, be characterized by intense homophobia, fear and hatred of homosexuality. To draw the "homosocial" back into the orbit of "desire," of the potentially erotic, then, is to hypothesize the potential unbrokenness of a continuum between homosocial and homosexual. Id.
96. Nella Larson, Passing, in QUICKSAND AND PASSING 135 (Deborah E. McDowell ed., 1986).
97. See id. at 149-61.
98. Lauren Berlant, National Brands/National Body: Imitation of Life, in COMPARATIVE AMERICAN IDENTITITES: RACE, SEX, AND NATIONALITY IN THE MODERN TEXT 110, 111 (Hortense J. Spillers ed., 1991).
99. Id.
100. Id.
101. T.O. BEIDELMAN, THE COOL KNIFE: IMAGERY OF GENDER, SEXUALITY, AND MORAL EDUCATION IN KAGURU INITIATION RITUAL 244 (1997).
102. SEDGWICK, supra note 5, at 15.
103. Id. at 13.
104. E.g., Goozner, supra note 12, at 1.
105. Mike McAlary, The Frightful Whisperings from a Coney Island Hospital Bed, N.Y. DAILY NEWS, Aug. 13, 1997, at 2 (quoting Abner Louima as Louima lay in his hospital bed four days after the attack).
106. Id.
107. See Richard Goldstein, What's Sex Got To Do With It? The Assault of Abner Louima May Have Been Attempted Murder. But It Was Also Rape., VILLAGE VOICE, Sept. 2, 1997, at 57; Tom Hays, Haitian's Beating May Have Been Case of Mistaken Identity, Punch, ARIZ. REPUBLIC, Aug. 22, 1997, at A11 (reporting that witnesses claimed another individual, not Louima, threw the punch against Officer Volpe).
108. Report: Officer Boasted After Attack, UPI, Aug. 19, 1997, available in LEXIS, Nexis Library, UPI File (reporting the alleged statement of Justin Volpe, New York City police officer).
109. David Kocieniewski, Injured Man Says Brooklyn Officers Tortured Him in Custody, N.Y. TIMES, Aug. 13, 1997, at B1 ("[T]he officers became furious when he protested his arrest, twice stopping the patrol car to beat him with their fists."); McAlary, supra note 100, at 2.
110. Kocieniewski, supra note 104, at B1.
111. Louima recounted the incident to a newspaper as follows: "The cops pulled down my pants in front of the desk sergeant." . . . "They marched you naked across the precinct?" "Yes." "There were other cops around?" "Yes. There was the sergeant and other cops. They saw." "And they said nothing?" "I kept screaming, 'Why? Why?' All the cops heard me, but said nothing." "What they said to me I'll never forget. In public, one says, 'You niggers have to learn how to respect police officers.'" Mike McAlary, Victim and City Deeply Scarred, N.Y. DAILY NEWS, Aug. 14, 1997, at 4 (quoting interview with Abner Louima).
112. McAlary, supra note 100, at 2.
113. Kocieniewski, supra note 104, at B1.
114. See Tom Hayes, Officer Accused of Sexually Brutalizing Suspect Arrested, ASSOCIATED PRESS, Aug. 13, 1997, at 1 (as reproduced by a number of newspapers).
115. See Louima Starts on Long Road Back, NEWSDAY, Oct. 12, 1997, at A39.
116. J. Zamgba Browne, Police Sodomize Suspect: The Tale of Torture at 70th Precinct, N.Y. AMSTERDAM NEWS, Aug. 20, 1997, at 1.
117. Suspect Claims Police Raped Him with Plunger, SALT LAKE TRIB., Aug. 14, 1997, at A13.
118. Hayes, supra note 109, at 1; see also New York Officer Surrenders in Sexual Assault on Immigrant, L.A. TIMES, Aug. 14, 1997, at A18; Cop Surrenders on Sexual Brutality Charges, SAN DIEGO UNION & TRIB., Aug. 14, 1997, at A12.
119. Hayes, supra note 109, at 1; see also New York Officer Surrenders in Sexual Assault on Immigrant, L.A. TIMES, Aug. 14, 1997, at A18; Cop Surrenders on Sexual Brutality Charges, SAN DIEGO UNION & TRIB., Aug. 14, 1997, at A12.
120. See Vinette K. Pryce, A Week of Outrage, Pain and Celebration, N.Y. AMSTERDAM NEWS, Sept. 10, 1997, at 1 (containing photograph of protester at march shown holding sign saying "Criminals, Perverts, Rapists").
121. Charles Baillou, Marchers Blast Police Barbarism at City Hall, N.Y. AMSTERDAM NEWS, Sept. 10, 1997, at 8.
122. David Firestone, Giuliani's Quandary: Mayor Who Linked Name to Police Success Is Now Facing a Very Ugly Police Failure, N.Y. TIMES, Aug. 15, 1997, at A1.
123. The press reported that, during the assault of Louima at the 70th precinct, one of the officers said: "This is Giuliani time, not Dinkins time." Eleanor Randolph, In Police Abuse Case, Giuliani's Balance Tested, L.A. TIMES, Aug. 16, 1997, at A1. But see Carolina Gonzalez & Bill Hutchinson, Sharpton Promises He'll Defend Louima, N.Y. DAILY NEWS, Jan. 19, 1998, at 8 (reporting that Louima now is unsure of whether the officer actually made this statement). Mayor Giuliani provided a quite interesting response to reports of the officer's alleged comment: "The remark is as perverted as the alleged act." Randolph, supra, at A1.
124. The press reported that, during the assault of Louima at the 70th precinct, one of the officers said: "This is Giuliani time, not Dinkins time." Eleanor Randolph, In Police Abuse Case, Giuliani's Balance Tested, L.A. TIMES, Aug. 16, 1997, at A1. But see Carolina Gonzalez & Bill Hutchinson, Sharpton Promises He'll Defend Louima, N.Y. DAILY NEWS, Jan. 19, 1998, at 8 (reporting that Louima now is unsure of whether the officer actually made this statement). Mayor Giuliani provided a quite interesting response to reports of the officer's alleged comment: "The remark is as perverted as the alleged act." Randolph, supra, at A1.
125. John Sullivan, New Charges Filed in Police Brutality Case, N.Y. TIMES, Aug. 22, 1997, at B3.
126. Goldstein, supra note 102, at 57.
127. See Goozner, supra note 99, at 1; see also N.Y. PENAL LAW § 120.10 (McKinney 1998) (first degree assault); id. § 130.70 (first degree aggravated sexual abuse).
128. See 2 NYC Officers Get New Charge in Haitian's Beating, BOSTON GLOBE, Sept. 9, 1997, at A8; see also N.Y. PENAL LAW § 240.31 (first degree aggravated harassment).
129. See 2 NYC Officers Get New Charge in Haitian's Beating, BOSTON GLOBE, Sept. 9, 1997, at A8; see also N.Y. PENAL LAW § 240.31 (first degree aggravated harassment).
130. Mike McAlary, Home Sweet Heartache: Love Alone Won't Aid Louima in Brooklyn, N.Y. DAILY NEWS, Oct. 10, 1997, at 3.
131. A New York City commission report provides two examples: One officer from a Brooklyn North precinct told us how he and his colleagues once threw a bucket of ammonia in the face of an individual detained in a precinct holding pen. Another cooperating officer told us how he and his colleagues threw garbage and then boiling water on a person hiding from them in a dumbwaiter shaft. CITY OF NEW YORK, COMMISSION TO INVESTIGATE ALLEGATIONS OF POLICE CORRUPTION AND THE ANTI-CORRUPTION PROCEDURES OF THE POLICE DEPARTMENT, COMMISSION REPORT 47 (1997) [hereinafter MOLLEN REPORT].
132. See AMNESTY INTERNATIONAL, UNITED STATES OF AMERICA: POLICE BRUTALITY AND EXCESSIVE FORCE IN THE NEW YORK CITY POLICE DEPARTMENT 37-54 (1996).
133. See id. at 26.
134. See id. at 47.
135. Goldstein, supra note 102, at 57 (emphasis added).
136. Id.
137. See, e.g., Charles Baillou, Angry Haitians March at the 70th Precinct in Brooklyn, N.Y. AMSTERDAM NEWS, Aug. 27, 1997, at 1; Nightline: The Blue Wall, Police Brutality and Police Silence (ABC television broadcast, Aug. 22, 1997).
138. See, e.g., Charles Baillou, Angry Haitians March at the 70th Precinct in Brooklyn, N.Y. AMSTERDAM NEWS, Aug. 27, 1997, at 1; Nightline: The Blue Wall, Police Brutality and Police Silence (ABC television broadcast, Aug. 22, 1997).
139. See, e.g., Infra note 136 (providing the N.Y. Penal Code's definition of first degree aggravated sexual abuse).
140. See N.Y. PENAL LAW §§ 130.00-.85 (McKinney 1998 & Supp. 1998) (listing New York's sex offenses).
141. Id. §§ 130.25-.35.
142. Id. §§ 130.38-.50.
143. The New York Penal Law defines sexual misconduct as: 1. Being a male, he engages in sexual intercourse with a female without her consent; or 2. He engages in deviate sexual intercourse with another person without the latter's consent; or 3. He engages in sexual conduct with an animal or a dead human body. Id. § 130.20. "Deviate sexual intercourse" is defined as "sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva." Id. § 130.00(2).
144. Id. §§ 130.55-.65. As set forth in the New York Penal Law, first degree sexual abuse occurs when: [A person] subjects another person to sexual contact: 1. By forcible compulsion; or 2. When the other person is incapable of consent by reason of being physically helpless; or 3. When the other person is less than eleven years old. Id. § 130.65.
145. First degree aggravated sexual abuse occurs when: [A person] inserts a foreign object in the vagina, urethra, penis or rectum of another person causing physical injury to such person: (a) By forcible compulsion; or (b) When the other person is incapable of consent by reason of being physically helpless; or (c) When the other person is less than eleven years old. Id. § 130.70(1).
146. First degree course of sexual conduct against a child occurs when "over a period of time not less than three months in duration, [a person] engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact, with a child less than eleven years old." Id. § 130.75; see also id. § 130.80 (second degree course of sexual conduct against a child).
147. Id. § 130.65.
148. See supra note 137.
149. N.Y. PENAL LAW § 130.00(3) (emphasis added). In its entirety, "sexual contact" means: [A]ny touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing. Id.
150. See People v. Cammarere, 611 N.Y.S.2d 682, 684 (App. Div. 1984).
151. See People v. Gray, 607 N.Y.S.2d 828, 829 (App. Div. 1994).
152. See People v. Graydon, 492 N.Y.S.2d 903, 904 (Crim. Ct. 1985).
153. See People v. Rondon, 579 N.Y.S.2d 319, 320-21 (Crim. Ct. 1992); People v. Rivera, 525 N.Y.S.2d 118, 119 (Sup. Ct. 1988).
154. See People v. Belfrom, 475 N.Y.S.2d 978, 980 (Sup. Ct. 1984).
155. Rivera, 525 N.Y.S.2d at 119.
156. See N.Y. PENAL LAW § 130.20 (McKinney 1998) (necessary element of sexual misconduct is sexual intercourse which is defined as "its ordinary meaning and occur[ing] upon any penetration, however slight" pursuant to id. § 130.00(1)); id. § 130.35 (necessary element of rape is sexual intercourse as defined supra); id. § 130.50 (necessary element of sodomy is sexual intercourse as defined supra); id. § 130.70 (aggravated sexual abuse requires "insert[ion] of a foreign object in the vagina, urethra, penis, or rectum of another person").
157. N.Y. CORRECT. LAW §§ 168-168-v (McKinney Supp. 1998).
158. N.J. STAT. ANN. §§ 2C:7-1 to -11 (West 1995 & 1998).
159. New York law requires the registration of "sex offenders." N.Y. CORRECT. LAW § 168-b. The statute defines "sex offender" as a person convicted of certain enumerated offenses. See id. § 168-a(1) (referencing the offenses listed in section 168-a(2), (3)). These enumerated offenses consist of those crimes listed in the text accompanying this note. See id. § 168-a(2), (3).
160. Under the New York penal code, unlawful imprisonment in the second degree occurs when "[a] person . . . restrains another person." N.Y. PENAL LAW § 135.05. First degree unlawful imprisonment must meet this definition plus "expose the [victim] to a risk of serious physical injury." Id. § 135.10. Kidnapping in the second degree occurs when "[a] person . . . abducts another person." Id. § 135.20 First degree kidnapping must meet this definition plus include one of a number of other circumstances including: death, intent to extract a ransom, or restraint for more than twelve hours with intent to "[i]nflict physical injury upon him or violate or abuse him sexually." Id. § 135.25.
161. Id. § 135.15 (unlawful imprisonment); id. § 135.30 (kidnapping).
162. Bell, supra note 16, at 86 (attributing this argument to Michel Foucault).
163. See Goldstein, supra note 102, at 57.
164. Earl Caldwell, Police Sodomy in Queens: The Column the Daily News Killed, N.Y. AMSTERDAM NEWS, Aug. 27, 1997, at 12 [hereinafter Caldwell, Police Sodomy in Queens]. The "black" newspapers in New York reported these incidents at great length, but none of the "white" papers have mentioned them. See Earl Caldwell, Earl Caldwell to the Daily News . . . 'I warned you. You fired me.', N.Y. AMSTERDAM NEWS, Aug. 27, 1997, at 1 ("The major papers seemed to have a blackout of the story. The [New York] Daily News had published nothing. The New York Times had published no story either.").
165. Earl Caldwell, Police Sodomy in Queens: The Column the Daily News Killed, N.Y. AMSTERDAM NEWS, Aug. 27, 1997, at 12 [hereinafter Caldwell, Police Sodomy in Queens]. The "black" newspapers in New York reported these incidents at great length, but none of the "white" papers have mentioned them. See Earl Caldwell, Earl Caldwell to the Daily News . . . 'I warned you. You fired me.', N.Y. AMSTERDAM NEWS, Aug. 27, 1997, at 1 ("The major papers seemed to have a blackout of the story. The [New York] Daily News had published nothing. The New York Times had published no story either.").
166. Caldwell, Police Sodomy in Queens, supra note 155, at 12.
167. In a characteristically laconic passage in BELOVED, Toni Morrison depicts the acrid humiliation suffered by African American men on a chain gang who are forced each morning by white male guards to put on their own chains, kneel down in a row and fellate the guards on demand. See TONI MORRISON, BELOVED 107-08 (1987). I read this passage not to be principally about the expropriation of sex from African American men, but rather about the routine ways in which sexual practices were used to degrade these prisoners.
168. See supra Part II (discussing and rejecting Herdt's representation of seminal/sexual practices in Papua New Guinea as primarily a function of homoeroticism).
169. See McAlary, supra note 100, at 2 (quoting Abner Louima's recollection of an officer's statement just prior to the insertion of a plunger into Louima's anus).
170. See Goldstein, supra note 102, at 57.
171. Droit du seigneur, or "right of the lord," historically referred to "a supposed legal or customary right at the time of a marriage whereby a feudal lord had sexual relations with a vassal's bride on her wedding night." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 633 (1993).
172. Goldstein, supra note 102, at 57.
173. Id.
174. See supra notes 138-46 and accompanying text (discussing the New York Penal Law's definition, and subsequent judicial interpretations, of the term "sexual contact").
175. See KINSEY ET AL., supra note 63, at 164.
176. After flirting with a female bartender while on his break, a male police officer followed her when she drove home from work, pulled her over and teasingly said, "Now you know what it's gonna be like to be arrested." Ronald K. Fitten, County Officer Faces Charges of Misconduct, SEATTLE TIMES, Oct. 24, 1998, at A7. "He then took her out of the car, handcuffed her, grabbed her hair and pulled her head back and began to fondle her sexually." Id.
177. See Ana Ortiz, Remarks at the InterSEXionality Symposium, University of Denver College of Law, Feb. 6, 1998 (transcript on file with Denver University Law Review).
178. Richard Goldstein & Jean Jean Pierre, Day of Outrage, VILLAGE VOICE, Sept. 9, 1997, at 44 (quoting Tatiana Wah).
179. See FOUCAULT, THE HISTORY OF SEXUALITY, supra note 3, at 57-63.
180. See id. at 152 ("Is 'sex' really the anchorage point that supports the manifestations of sexuality, or is it not rather a complex idea that was formed inside the deployment of sexuality?").
181. See supra notes 131-51 and accompanying text (disscussing the New York Penal Law's treatment of sex offenses).
182. See FOUCAULT, POLITICS, supra note 15, at 200-04; Bell, supra note 16, at 84-87.
183. FOUCAULT, POLITICS, supra note 15, at 200. Foucault sets up the discussion with the provocative declaration that "in any case, sexuality can in no circumstances be the object of punishment." Id.
184. Id. at 200-01.
185. See, e.g., Franke, supra note 6, at 740-44 (discussing the debate among feminists concerning the proper meaning of rape - as a crime of violence or sex).
186. Bell, supra note 16, at 92.
187. FOUCAULT, POLITICS, supra note 15, at 201-02.
188. Bell, supra note 16, at 87.
189. JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 1 (1993). In addressing Foucault's "regulatory ideal," Butler notes: "[S]ex not only functions as a norm, but is part of a regulatory practice . . . whose regulatory force is made clear as a kind of productive power, the power to produce - demarcate, circulate, differentiate - the bodies it controls." Id.
190. WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY 120 (1995).
191. FOUCAULT, POLITICS, supra note 15, at 202.
192. Monique Plaza, Our Costs and Their Benefits, in M/F: A FEMINIST JOURNAL 28, 35 (1980).
193. Slavenka Drakulic, Rape After Rape After Rape, N.Y. TIMES, Dec. 13, 1992, § 4, at 17.
194. See Prosecutor v. Delalic et al., Judgment, Case No. IT-96-21-T (ICTY Nov. 16, 1998) [hereinafter Celebici Judgment]. Seventy-eight suspects have been indicted by the tribunal. See Charles Trueheart, Bosnian Muslims, Croat Convicted of Atrocities Against Serbs, WASH. POST, Nov. 17, 1998, at A34. The majority of those charged with committing war crimes are Bosnian Serbs, and most of the tens of thousands of victims of the 1991-95 war were Croats and Muslims. See id. However, "most of those indicted who have surrendered or been arrested are Muslims or Croats; the tribunal's two convictions to date involved a Bosnian Serb and a Croat, and one Bosnian Serb has confessed." Id. The indictment of Slobodan Milosovic, the Bosnian Serb leader, has yet to result in his arrest.
195. Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, 49th Sess. ¶ 248, U.N. Doc. S/1994/674 (1994)) [hereinafter Final Report].
196. Id.
197. The Final Report identified five patterns of rape, of which the rape camp for the purposes of ethnic cleansing was one. Id. ¶¶ 244-45. Four other patterns were recognized: (1) rapes occurring in conjunction with looting and intimidation, (2) rapes occurring in conjunction with fighting in the area, (3) rapes at detention facilities, and (4) rapes at detention facilities established for the "sole purpose of sexually entertaining soldiers." Id. ¶¶ 245-47, 249.
198. One Muslim woman was told that "she would give birth to a chetnik boy who would kill Muslims when he grew up." Id. ¶ 249.
199. Rape Becomes a Weapon of War, N.Y. TIMES, Jan. 10, 1993, § 4, at 4.
200. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. SCOR, 48th Sess., Annex, art. 1, at 36, U.N. Doc. S25704 (1993), reprinted in 32 I.L.M. 1163, 1192 (1993), available at 〈http://www.un.org/icty/basic/i-bencon.htm〉 (visited Sept. 2, 1998) [hereinafter Tribunal Statute] (setting forth the Statute of the International Tribunal in the annex), adopted by S.C. Res. 827, U.N. SCOR, 48th. Sess., 3217th mtg. at 2, U.N. Doc. S/RES/827 (1993). Many documents from the International Criminal Tribunal for the Former Yugoslavia, including the indictments and opinions discussed infra, are available from the ICTY homepage, 〈http://www.un.org/icty/〉 (visited Sept. 20, 1998).
201. Tribunal Statute, supra note 190, art. 2, at 36.
202. Id. art. 3, at 37.
203. Id. art. 4, at 37.
204. Id. art. 5, at 38.
205. See id. art. 5(g), at 38.
206. Id. ¶ 48.
207. Id.
208. See Justice Richard Goldstone, The United Nations' War Crimes Tribunals: An Assessment, 12 CONN. J. INT'L L. 227, 231 (1997) ("The ICTY is setting an important precedent in respect to gender related crimes because it is the first time that systematic mass rape is ever being charged and prosecuted as a war crime."); Jennifer Green et al., Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique, 5 HASTINGS WOMEN'S L.J. 171, 173 & n.5 (1994). The International Criminal Tribunal for Rwanda, a sister United Nations war crimes tribunal to the ICTY, has undertaken prosecution of similarly heinous sex-based atrocities committed in 1994 during the ethnic war in Rwanda. On September 2, 1998, the Rwanda War Crimes Tribunal issued a final judgment in which it determined that Jean-Paul Akayesu, a Hutu official, was guilty of nine counts of genocide and crimes against humanity for having incited the rape and sexual assault of Tutsi women. See Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T (ICTY Sept. 2, 1998), available at 〈http://www.un.org/ictr/english/judgments/ akayesu.html〉 (visited Dec. 21, 1998).
209. See Justice Richard Goldstone, The United Nations' War Crimes Tribunals: An Assessment, 12 CONN. J. INT'L L. 227, 231 (1997) ("The ICTY is setting an important precedent in respect to gender related crimes because it is the first time that systematic mass rape is ever being charged and prosecuted as a war crime."); Jennifer Green et al., Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique, 5 HASTINGS WOMEN'S L.J. 171, 173 & n.5 (1994). The International Criminal Tribunal for Rwanda, a sister United Nations war crimes tribunal to the ICTY, has undertaken prosecution of similarly heinous sex-based atrocities committed in 1994 during the ethnic war in Rwanda. On September 2, 1998, the Rwanda War Crimes Tribunal issued a final judgment in which it determined that Jean-Paul Akayesu, a Hutu official, was guilty of nine counts of genocide and crimes against humanity for having incited the rape and sexual assault of Tutsi women. See Prosecutor v. Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T (ICTY Sept. 2, 1998), available at 〈http://www.un.org/ictr/english/judgments/ akayesu.html〉 (visited Dec. 21, 1998).
210. See Prosecutor v. Meakic, Indictment, Case No. IT-95-4, ¶ 1 (ICTY Feb. 13, 1995) [hereinafter Meakic Indictment], reprinted in 34 I.L.M. 1013, 1014.
211. See Prosecutor v. Tadic, Second Amended Indictment, Case No. IT-94-1-T, ¶ 2.3 (ICTY Dec. 14, 1995) [hereinafter Tadic Second Amended Indictment], reprinted in 36 I.L.M. 908, 915.
212. Prosecutor v. Tadic, Opinion and Judgment, Case No. IT-94-1-T, ¶ 377 (ICTY May 7, 1997) [hereinafter Tadic·Opinion], excerpts reprinted in 36 I.L.M. 908 (exerpting paragraphs 1-12, 557-765 of the Opinion and paragraphs 1-14 of the Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute).
213. Meakic Indictment, supra note 199.
214. Prosecutor v. Tadic, Initial Indictment, Case No. IT-94-1-T (ICTY Feb. 13, 1995), reprinted in 35 I.L.M. 1011, 1028 [hereinafter Tadic Initial Indictment]. The Tadic Initial Indictment was amended twice. See Prosecutor v. Tadic, First Amended Indictment, Case No. IT-94-1-T (ICTY Sept. 1, 1995); Tadic Second Amended Indictment, supra note 200; see also Tadic Opinion, supra note 201, ¶ 36. Given the posture of the following argument, subsequent citations will be to the initial indictment with pertinent alterations provided when necessary.
215. Meakic Indictment, supra note 199, ¶¶ 2.6, 22.1, 25.1, 26.1, 30.1.
216. Tadic Initial Indictment, supra note 203, ¶¶ 4.1, 5.1. The charges associated with paragraph 4.1 were ultimately withdrawn at trial. See Tadic Opinion, supra note 201, ¶ 37 (noting the withdrawal of the charges associated with paragraph 5 of the Second Amended Indictment which corresponds to paragraph 4.1 of the Initial Indictment).
217. Meakic Indictment, supra note 199, ¶¶ 22.1-22.16, 25.1-25.4, 26.1-26.4, 30.1-30.4.
218. See id. ¶ 22.1; see also Tadic Opinion, supra note 201, ¶ 165 ("Women who were held at Omarska were routinely called out of their rooms at night and raped. One witness testified that she was taken out five times and raped and after each rape she was beaten.").
219. Tadic Opinion, supra note 201, ¶ 175.
220. Meakic Indictment, supra note 199, ¶¶ 22.2, 22.5, 22.8, 22.11, 22.14, 25.2, 26.2, 30.2. Article 2(c) of the Tribunal Statute, entitled Grave Breaches of the Geneva Conventions of 1949, authorizes the International Tribunal to prosecute individuals for "wilfully causing great suffering or serious injury to body or health." Tribunal Statute, supra note 190, art. 2(c), at 36.
221. Meakic Indictment, supra note 199, ¶¶ 22.3, 22.6, 22.9, 22.12, 22.15, 25.3, 26.3, 30.3. Article 3, Violations of the Laws or Customs of War, provides a non-exclusive set of violations relating to suffering or destruction imposed upon civilians or civilian property. See Tribunal Statute, supra note 190, art. 3, at 37.
222. Meakic Indictment, supra note 199, ¶¶ 22.4, 22.7, 22.10, 22.13, 22.16, 25.4, 26.4, 30.4. Article 5(g), Crimes Against Humanity, authorizes the prosecution of rape. Tribunal Statute, supra note 190, art. 5(g), at 38.
223. Meakic Indictment, supra note 199, ¶ 27.1.
224. Id. ¶ 29.1.
225. Id. ¶ 31.1.
226. Id. ¶¶ 29.2, 31.2.
227. Id. ¶¶ 29.4, 31.4.
228. See id. ¶¶ 29.4, 31.4. Article 5(i), Crimes Against Humanity, authorizes prosecution for "other inhumane acts." Tribunal Statute, supra note 190, art. 5(i), at 38.
229. Compare Tadic Initial Indictment, supra note 203, ¶¶ 4.1-.4 (charging violations of Article 2(c) (wilfully causing great suffering), Article 3, and Article 5(g) (rape)), with Meakic Indictment, supra note 199, ¶¶ 22.1-.4 (charging the same violations). The amended Tadic indictments substituted a violation of Article 2(b) (inhuman treatment) for the initial Article 2(c) (wilfully causing great suffering) charge of the Tadic Initial Indictment. See Tadic Second Amended Indictment, supra note 200, ¶ 5, count 2. The charges associated with this rape of a woman were eventually dropped at trial. See Tadic Opinion, supra note 201, ¶ 37 (noting the withdrawal of the charges associated with paragraph 5 of the Second Amended Indictment which corresponds to paragraph 4.1 of the initial indictment).
230. Tadic Initial Indictment, supra note 203, ¶ 5.1; see also Tadic Second Amended Indictment, supra note 200, ¶ 6.
231. Tadic Opinion, supra note 201, ¶ 206.
232. Tadic Initial Indictment, supra note 203, ¶¶ 5.29, 5.32.
233. Id. ¶¶ 5.21, 5.24.
234. Id. ¶¶ 5.31, 5.34. In the amended indictments, Tadic was charged with, among other things, violations of Article 2(b) (torture or inhuman treatment), Article 2(c) (wilfully causing great suffering or serious injury to body and health), Article 3 (cruel treatment), and Article 5(i) (inhumane acts). See Tadic Second Amended Indictment, supra note 200, ¶ 6, counts 8-11. Tadic was eventually found guilty of violating Articles 3 and 5(i) of the Tribunal Statute, but the Tribunal found the evidence did not overcome the reasonable doubt standard for the Article 2 charges. See Tadic Opinion, supra note 201, ¶¶ 237, 719-30.
235. See Tadic Opinion, supra note 201, ¶¶ 222, 231.
236. See id. ¶¶ 45, 231.
237. See Prosecutor v. Karadzic, Case No. IT-95-5 (ICTY July 25, 1995); Prosecutor v. Martic, Case No. IT-95-11 (ICTY July 25, 1995); Prosecutor v. Sikirica, Indictment, Case No. IT-95-8, ¶ 19 (ICTY July 21, 1995) [hereinafter Karaterm Indictment]; Prosecutor v. Miljkovic, Indictment, Case No. IT-95-9, ¶ 31 (ICTY July 21, 1995) [hereinafter Bosanski Samac Indictment]; Prosecutor v. Jelisic, Indictment, Case No. IT-95-10 (ICTY July 21, 1995) [Brcko Initial Indictment], amended by Prosecutor v. Jelisic, Amended Indictment, Case No. IT-95-10-PT (ICTY Mar. 3, 1998) [hereinafter Brcko First Amended Indictment] and Prosecutor v. Jelisic, Second Amended Indictment, IT-95-10-PT (ICTY Oct. 19, 1998).
238. See Karaterm Indictment, supra note 226, ¶¶ 19, 20 (forcing victims to engage in fellatio); Bosanski Samac Indictment, supra note 226, ¶ 31 (forcing two individuals to "perform sexual acts on each other"); Brcko Indictment, supra note 226, ¶ 33 (forcing two brothers to "perform sexual acts on each other").
239. Formerly Legal Advisor for Gender-Related Crimes at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and now ICTY prosecutor in the Hague.
240. See supra notes 131-51 and accompanying text (discussing New York penal law's treatment of sex crimes).
241. See INTERNATIONAL TRIBUNAL FOR THE PROSECUTION OF PERSONS RESPONSIBLE FOR SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW COMMITTED IN THE TERRITORY OF THE FORMER YUGOSLAVIA SINCE 1991: RULES OF PROCEDURE AND EVIDENCE 96, U.N. Doc. IT/32/Rev.13 (1998) [hereinafter TRIBUNAL RULES OF PROCEDURE], reprinted in 33 I.L.M. 484, 535 (1994), available at 〈http://www.un.org/icty/basic/rpe/rev13e.htm〉 (visited Sept. 2, 1998). Rule 96 of the Tribunal Rules of Procedure, "Evidence in Cases of Sexual Assault" states: In cases of sexual assault: (i) no corroboration of the victim's testimony shall be required; (ii) consent shall not be allowed as a defence if the victim (a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or (b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear; (iii) before evidence of the victim's consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible; (iv) prior sexual conduct of the victim shall not be admitted in evidence. Id.
242. FOUCAULT, THE HISTORY OF SEXUALITY, supra note 3, at 103.
243. See, e.g., Brcko Indictment, supra note 226.
244. Id. ¶ 33.
245. Id. ¶ 33, counts 50-52. The Amended Indictment, issued March 3, 1998, eliminated the Article 2(b) charge. See Brcko Amended Indictment, supra note 226, ¶ 32, counts 34-35.
246. Brcko Initial Indictment, supra note 226, ¶ 33, count 52 (charging a "Crime Against Humanity recognized by Article 5(g) (rape, which includes other forms of sexual assault) of the Tribunal Statute").
247. The reform of indictment policy evidenced in the Brcko indictment, however, was not consistently implemented by the Prosecutor's office. Compare id. (charging violation of Article 5(g) (rape, which includes other forms of sexual assault) when defendants allegedly forced two brothers to perform sexual acts on each other), with Tadic Initial Indictment, supra note 203, ¶¶ 5.1, 5.31, 5.34 (charging violation of Article 5(i) (other inhuman acts) when defendants forced two individuals to "lick [a victim's] buttocks and genitals and then to sexually mutilate [the victim]"). In another indictment issued the same day as the Brcko indictment, the Prosecutor charged several Serbian soldiers with forcing a man to engage in "degrading, humiliating and/or painful acts, such as lying on broken glass, repeatedly jumping from a truck, and engaging in fellatio." Karaterm Indictment, supra note 226, ¶ 19. For this conduct, the defendants were charged with committing great suffering under Article 2(c), cruel treatment under Article 3, and inhumane acts under Article 5(i), but not rape or sexual assault under Article 5(g). See id. ¶¶ 19.2.1-.2.3. Male soldiers were similarly charged in a separate count for forcing a male prisoner to run while carrying a heavy machine gun and to engage in fellatio. Id. ¶ 20. The Karaterm indictment did not contain the subject headings contained in the Brcko and other indictments issued in July 1995.
248. Bosanski Samac Indictment, supra note 226, ¶ 31.
249. Like the Brcko defendants, the Bosanski Samac defendents were charged with a Grave Breach under Article 2(b) (inhuman treatment), Violation of the Laws or Customs of War under Article 3 (humiliating and degrading treatment), and a Crime Against Humanity under Article 5(g) (rape, which includes other forms of sexual assault). Id. ¶ 31, counts 36-38; see supra note 234 (describing the charges against the Brcko defendants, including subsequent amendments).
250. Prosecutor v. Delalic, Indictment, Case No. IT-96-21 (ICTY Mar. 21, 1996) [hereinafter Celebici Indictment].
251. Id. ¶ 24.
252. Id. ¶ 25.
253. Id. ¶ 24, counts 18-20; id. ¶ 25, counts 21-23.
254. It is very possible that the Prosecutor did not include a charge of Crime Against Humanity under Article 5(g) (rape) because she did not feel that she had sufficient evidence to prove that the rapes were committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic, racial, or religious grounds.
255. Prosecutor v. Gagovic, Indictment, Case No. IT-96-23 (ICTY June 26, 1995) [hereinafter Foca Indictment].
256. Id. ¶¶ 5.1, 6.1, 7.1, 9.1, 10.1, 11.1, 12.1.
257. One victim was gang-raped for three hours by at least fifteen men, then sexually abused in "all possible ways," including having a soldier threaten to cut off her breast with a knife. Id. ¶ 9.10. Another victim was gang-raped by at least eight men, during which time one man bit her nipples to the point of bleeding, and then another squeezed and pinched her breasts while he raped her. She then lost consciousness from the pain. Id. ¶ 9.11. While one other victim was being raped by a male soldier, the soldier threatened to cut off her arms and legs and take her to church to be baptized. Id. ¶ 9.15.
258. Id. ¶¶ 9.3, 9.13.
259. Id. ¶ 8.1.
260. For the use of the term, see AMNESTY INT'L, BOSNIA-HERZEGOVINA: RAPES AND SEXUAL ABUSE BY THE ARMED FORCES 10-12 (1993); Roy Gutman, Rape Camps: Evidence Serb Leaders in Bosnia OKd Attacks, NEWSDAY, April 19, 1993, at 5; Maggie O'Kane, Bosnia Crisis: Forgotten Women of Serb Rape Camps, GUARDIAN, Dec. 19, 1992, at 9; Tom Post, A Pattern of Rape, NEWSWEEK, Jan. 4, 1993, at 32.
261. For the use of the term, see AMNESTY INT'L, BOSNIA-HERZEGOVINA: RAPES AND SEXUAL ABUSE BY THE ARMED FORCES 10-12 (1993); Roy Gutman, Rape Camps: Evidence Serb Leaders in Bosnia OKd Attacks, NEWSDAY, April 19, 1993, at 5; Maggie O'Kane, Bosnia Crisis: Forgotten Women of Serb Rape Camps, GUARDIAN, Dec. 19, 1992, at 9; Tom Post, A Pattern of Rape, NEWSWEEK, Jan. 4, 1993, at 32.
262. For the use of the term, see AMNESTY INT'L, BOSNIA-HERZEGOVINA: RAPES AND SEXUAL ABUSE BY THE ARMED FORCES 10-12 (1993); Roy Gutman, Rape Camps: Evidence Serb Leaders in Bosnia OKd Attacks, NEWSDAY, April 19, 1993, at 5; Maggie O'Kane, Bosnia Crisis: Forgotten Women of Serb Rape Camps, GUARDIAN, Dec. 19, 1992, at 9; Tom Post, A Pattern of Rape, NEWSWEEK, Jan. 4, 1993, at 32.
263. For the use of the term, see AMNESTY INT'L, BOSNIA-HERZEGOVINA: RAPES AND SEXUAL ABUSE BY THE ARMED FORCES 10-12 (1993); Roy Gutman, Rape Camps: Evidence Serb Leaders in Bosnia OKd Attacks, NEWSDAY, April 19, 1993, at 5; Maggie O'Kane, Bosnia Crisis: Forgotten Women of Serb Rape Camps, GUARDIAN, Dec. 19, 1992, at 9; Tom Post, A Pattern of Rape, NEWSWEEK, Jan. 4, 1993, at 32.
264. Foca Indictment, supra note 244, ¶¶ 10.1-.7, 12.1-.4.
265. Id. ¶¶ 10.6, 12.1.
266. Id. ¶ 12.5.
267. Id. ¶¶ 2.1-.8 (discussing the accused).
268. See id. ¶¶ 8.1-.2, counts 32-35; id. ¶¶ 9.1-9.26, counts 36-55.
269. See id. ¶¶ 11.1-.3, count 60.
270. See id. ¶¶ 12.1-12.6, counts 61-62.
271. Prosector v. Drljaca, Initial Indictment, Case No. IT-97-24-I (ICTY Mar. 13, 1997) [hereinafter Kovacevic Initial Indictment] (naming Drljaca and Kovacevic as defendants), amended by Prosector v. Kovacevic, Amended Indictment, Case No. IT-97-24-I (Jan. 28, 1998) [hereinafter Kovacevic Amended Indictment].
272. Kovacevic Initial Indictment, supra note 257, ¶¶ 9-16, count 1.
273. Id.
274. Kovacevic Amended Indictment, supra note 257, ¶¶ 33-57, counts 3-15.
275. See Meakic Indictment, supra note 199, ¶¶ 22.1-22.16, 25.1-25.4, 26.1-26.4, 30.1-30.4; Tadic Initial Indictment, supra note 203, ¶¶ 5.1, 5.29-.34; see also discussion supra notes 206-17, 218-25 and accompanying text (discussing the Meakic and Tadic charges).
276. See Meakic Indictment, supra note 199, ¶¶ 22.4, 22.7, 22.10, 22.13, 22.16, 25.4, 26.4, 30.4; Tadic Initial Indictment, supra note 203, ¶¶ 4.1-4.4; see also discussion supra notes 206-11, 213 and accompanying text (discussing the Meakic and Tadic charges as applied to female victims).
277. See Meakic Indictment, supra note 199, ¶¶ 29.4, 31.4; Tadic Initial Indictment, supra note 203, ¶¶ 5.31, 5.34; see also discussion supra notes 213-17, 219-25 accompanying text (discussing the Meakic and Tadic charges as applied to male victims).
278. Patricia Viseur Sellers & Kaoru Okuizumi, Intentional Prosecution of Sexual Assaults, 7 TRANSNAT'L L. & COMTEMP. PROBS. 45, 51 (1997); cf. TRIBUNAL RULES OF PROCEDURE, supra note 230, at Rule 96 (use of "sexual assualt" in Rule 96, as opposed to "rape," indicates Tribunal's intent to interpret Artilce 5(g) broadly).
279. Patricia Viseur Sellers & Kaoru Okuizumi, Intentional Prosecution of Sexual Assaults, 7 TRANSNAT'L L. & COMTEMP. PROBS. 45, 51 (1997); cf. TRIBUNAL RULES OF PROCEDURE, supra note 230, at Rule 96 (use of "sexual assualt" in Rule 96, as opposed to "rape," indicates Tribunal's intent to interpret Artilce 5(g) broadly).
280. See, e.g., Brcko Indictment, supra note 226, ¶ 33, count 52; see also discussion supra note 235.
281. See, e.g., Foca Indictment, supra note 244, ¶¶ 11.1-.3, count 60 (applying Article 5(g) to rape of four women); Brcko Initial Indictment, supra note 226, ¶ 33, count 52 (applying Article 5(g) to men forced to perform sexual acts on each other).
282. Sellers & Okuizumi, supra note 264, at 57-58.
283. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 1, G.A. Res. 39/46, U.N. GAOR 3d Comm., 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984); see C.P.M. Cleiren & M.E.M. Tijssen, Rape and Other Forms of Sexual Assault in the Armed Conflict in the Former Yugoslavia: Legal, Procedural, and Evidentiary Issues, 5 CRIM. L.F. 471, 492 (1994).
284. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 1, G.A. Res. 39/46, U.N. GAOR 3d Comm., 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984); see C.P.M. Cleiren & M.E.M. Tijssen, Rape and Other Forms of Sexual Assault in the Armed Conflict in the Former Yugoslavia: Legal, Procedural, and Evidentiary Issues, 5 CRIM. L.F. 471, 492 (1994).
285. Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, in Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Report of the Special Rapporteur, Mr. Nigel S. Rodley, Submitted Pursuant to Commission on Human Rights Resolution 1992/32, U.N. ESCOR, 50th Sess. ¶ 19, U.N. Doc. E/CN.4/1995/34. The 1949 Geneva Conventions, which now constitute the core rules of international humanitarian law applicable in international armed conflicts, do not enumerate rape as a grave breach. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, art. 147, 6 U.S.T. 3516, 3618, 75 U.N.T.S. 287, 388 [hereinafter Geneva Convention] (including "wilful killing, torture or inhuman treatment . . . wilfully causing great suffering or serious injury to body or health" as grave breaches). However, the International Commission of the Red Cross and the U.S. State Department have declared that Grave Breach under Article 147 (relating to "torture or inhumane treatment") encompasses rape. See Simon Chesterman, Never Again . . . and Again: Law, Order, and the Gender of War Crimes in Bosnia and Beyond, 22 YALE J. INT'L L. 299, 331 & n.199 (1997) (citing Theodor Meron, Editorial Comment, Rape as a Crime Under International Humanitarian Law, 87 AM. J. INT'L L. 424, 426-27 (1993) (quoting INT'L COMM. OF THE RED CROSS, AIDE-MEMOIRE (Dec. 3, 1992)) and Final Report, supra note 185, ¶ 105).
286. Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, in Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Report of the Special Rapporteur, Mr. Nigel S. Rodley, Submitted Pursuant to Commission on Human Rights Resolution 1992/32, U.N. ESCOR, 50th Sess. ¶ 19, U.N. Doc. E/CN.4/1995/34. The 1949 Geneva Conventions, which now constitute the core rules of international humanitarian law applicable in international armed conflicts, do not enumerate rape as a grave breach. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, art. 147, 6 U.S.T. 3516, 3618, 75 U.N.T.S. 287, 388 [hereinafter Geneva Convention] (including "wilful killing, torture or inhuman treatment . . . wilfully causing great suffering or serious injury to body or health" as grave breaches). However, the International Commission of the Red Cross and the U.S. State Department have declared that Grave Breach under Article 147 (relating to "torture or inhumane treatment") encompasses rape. See Simon Chesterman, Never Again . . . and Again: Law, Order, and the Gender of War Crimes in Bosnia and Beyond, 22 YALE J. INT'L L. 299, 331 & n.199 (1997) (citing Theodor Meron, Editorial Comment, Rape as a Crime Under International Humanitarian Law, 87 AM. J. INT'L L. 424, 426-27 (1993) (quoting INT'L COMM. OF THE RED CROSS, AIDE-MEMOIRE (Dec. 3, 1992)) and Final Report, supra note 185, ¶ 105).
287. Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment, in Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Report of the Special Rapporteur, Mr. Nigel S. Rodley, Submitted Pursuant to Commission on Human Rights Resolution 1992/32, U.N. ESCOR, 50th Sess. ¶ 19, U.N. Doc. E/CN.4/1995/34. The 1949 Geneva Conventions, which now constitute the core rules of international humanitarian law applicable in international armed conflicts, do not enumerate rape as a grave breach. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, art. 147, 6 U.S.T. 3516, 3618, 75 U.N.T.S. 287, 388 [hereinafter Geneva Convention] (including "wilful killing, torture or inhuman treatment . . . wilfully causing great suffering or serious injury to body or health" as grave breaches). However, the International Commission of the Red Cross and the U.S. State Department have declared that Grave Breach under Article 147 (relating to "torture or inhumane treatment") encompasses rape. See Simon Chesterman, Never Again . . . and Again: Law, Order, and the Gender of War Crimes in Bosnia and Beyond, 22 YALE J. INT'L L. 299, 331 & n.199 (1997) (citing Theodor Meron, Editorial Comment, Rape as a Crime Under International Humanitarian Law, 87 AM. J. INT'L L. 424, 426-27 (1993) (quoting INT'L COMM. OF THE RED CROSS, AIDE-MEMOIRE (Dec. 3, 1992)) and Final Report, supra note 185, ¶ 105).
288. Sellers & Okuizumi, supra note 264, at 62. The Trial Chamber has determined that the elements of torture in an armed conflict require that torture: (i) consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority - wielding entity. Prosecutor v. Furundzija, Judgment, Case No. IT-95-17/1-PT, ¶ 162 (ICTY Dec. 10, 1998) [hereinafter Furundzija Judgment]; see also Prosecutor v. Tadic, Prosecutor's Pre-Trial Brief, Case No. IT-94-I-T (ICTY Apr. 10, 1995). To prove a Grave Breach, the Prosecutor must show (1) that the act was undertaken during "armed conflicts of an international character," and (2) that the victim was a person "regarded as 'protected,' in particular civilians in the hands of a party to a conflict of which they are not nationals." Tadic Opinion, supra note 201, ¶ 559.
289. Celebici Judgment, supra note 184.
290. Id. ¶¶ 925-65, counts 18-23.
291. Id. ¶¶ 1035-48.
292. Id. ¶¶ 1060-66, counts 44-45.
293. Furundzija Judgment, supra note 270.
294. Id. ¶¶ 264-75. The man accused of assaulting the female victim in this case was charged with "rubb[ing] his knife on the inner thighs of [the victim] and threatened to cut out her private parts if she did not tell the truth in answer to the interrogation." Id. ¶ 264. Subsequently, she was vaginally, anally and orally raped by the same man as part of the interrogation while Furundzija watched and interrogated her as well as other prisoners. Id. ¶ 266-67.
295. See Celebici Judgment, supra note 271, ¶¶ 452-97; Furundzija Judgment, supra note 270, ¶¶ 165-86.
296. Celebici Judgment, supra note 271, ¶ 495.
297. Id. ¶ 941.
298. Furundzija Judgment, supra note 270, ¶ 267.
299. Id. ¶ 87 (footnote omitted).
300. See Rhonda Copelon, Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law, 5 HASTINGS WOMEN'S L.J. 243, 253-54 & n.46. (1994) (describing communications between Rhonda Copelon and the Chief Prosecutor of the ICTY).
301. See id. at 248-57 (arguing for the prosecution of rape as a Grave Breach under Article 2(b) of the Tribunal Statute (torture)).
302. Id. at 249.
303. Id. at 250.
304. Id.
305. See, e.g., Chesterman, supra note 269, at 327; Copelon, supra note 282, at 248-57; Madeline Morris, By Force of Arms: Rape, War and Military Culture, 45 DUKE L.J. 651, 685 n.108 (1996); Amy E. Ray, The Shame of It: Gender-Based Terrorism in the Former Yugoslavia and the Failure of International Human Rights Law to Comprehend the Injuries, 29 AMER. U. L. REV. 793, 818 (1997).
306. See, e.g., Chesterman, supra note 269, at 327; Copelon, supra note 282, at 248-57; Madeline Morris, By Force of Arms: Rape, War and Military Culture, 45 DUKE L.J. 651, 685 n.108 (1996); Amy E. Ray, The Shame of It: Gender-Based Terrorism in the Former Yugoslavia and the Failure of International Human Rights Law to Comprehend the Injuries, 29 AMER. U. L. REV. 793, 818 (1997).
307. Furundzija Judgment, supra note 270, ¶¶ 264-69.
308. See Celebici Indictment, supra note 239, ¶¶ 24-25, counts 18, 21.
309. Goldstone, supra note 198, at 228.
310. See Tadic Opinion, supra note 201, ¶ 626; Sellers & Okuizumi, supra note 264, at 57 n.47; Elizabeth Odio Benito, Rape and Other Sexual Assaults as War Crimes Prohibited by International Humanitarian Law 22 (Mar. 8, 1998) (unpublished manuscript, on file with author).
311. See Kovacevica Initial Indictment, supra note 258, ¶¶ 9-16; Tribunal Statute, supra note 190, art. 4, at 37.
312. Benito, supra note 291, at 12.
313. See Geneva Convention, supra note 269, art. 27, 6 U.S.T. at 3516, (declaring that women "shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault"); Rhonda Copelon, supra note 282, at 249.
314. See Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission, U.N. Comm'n on Human Rts., 50th Sess., Agenda Item 11(a), ¶ 268, U.N. Doc. E/CN.4/1995/42 (1994).
315. Celebici Judgment, supra note 271, ¶ 471.
316. Copelon, supra note 282, at 261.
317. FOUCAULT, POLITICS, supra note 15, at 202.
318. TRIBUNAL RULES OF PROCEDURE, supra note 230, Rule 96 (providing strict rules for the admission of testimony and limiting the defense of consent in cases of sexual assault); see supra note 230 (providing the full text of Rule 96). The Celebici defendants were convicted.
319. Celebici Judgment, supra note 271, ¶ 936.
320. Tadic Opinion, supra note 201, ¶ 470.
321. Id. ¶ 718.
322. McAlary, supra note 100, at 2.