Jan. 22, 2010
Law professor says feminists should abandon tough rape laws and the war on crime
A battle against rape has been a big part of America's 30-year war on crime, as feminists and equal rights advocates pushed for prosecution of accused rapists and new laws to protect victims, with the expectation that vigorous enforcement would reduce sexual assault.
But University of Iowa law professor Aya Gruber (left) says those efforts have failed and feminism should now distance itself from a criminal justice system she believes is too influenced by the cultural status quo to produce social justice.
"Feminists have reached the limit of that legal effort and the current criminal law no longer provides a meaningful avenue for change," Gruber wrote in her paper, "Rape, Feminism and the War on Crime," published recently in the Washington Law Review by the University of Washington College of Law.
"The lonely voice of women's empowerment cannot and will not be heard above the sound and fury of the criminal system's other messages that reinforce stereotypes, construct racial and socio-economic (structures) and unmoor crime from issues of social justice."
Gruber points to studies of criminal data that shows well-intentioned legal reforms like shield laws and affirmative consent laws do not work. While the number of "stranger rapes" by men who violently attack women has dropped, other, more subtle forms of sexual assault like date rape are still chronic. She said the criminal justice system is unequipped to deal with these subtler forms, though, because their root cause is not so much the deviant mind of a sociopath but the often-accepted social behaviors of men and women.
"Criminal law's structure is to look for right and wrong with no gray area, and to hold individual's accountable for their actions. It doesn't take into consideration larger social issues-such as why the accused rapist aggressively pursued sex, or the perceived passivity of women." Gruber said. "As a result, the criminal justice system struggles to deal with rape because rape is a complex crime loaded with social freight, such as gender inequality and the sexual subordination of women."
On top of this is the way stereotypes of women and rape play out in the jury room. Despite the best efforts of legal reformers, the criminal justice system still sees certain rape victims as somehow complicit in the assault, as if it's a crime for them to have gone out on a date with a rapist.
"As manifested in the law of rape, the complainant may be a "true" victim if she was the object of a violent attack by a monstrous stranger rapist," Gruber wrote. "However, if she exercises any agency in the encounter, such as being on a date, she is disqualified from the category of innocent victim and is instead cast as the agent who precipitated date rape ...., wholly responsible for her mistakes."
Meanwhile, she said the obsession with the criminal justice system has led to such absurdities as a fourth degree sexual assault conviction and compulsory registration as a sex offender for a man who squeezed the back side of a female while they were on a dance floor in a bar.
While this was happening, she said, the equal rights movement in society at large lost steam, in part, because feminists became more interested in criminal law than working for social change.
"Feminism's ability to reshape gender dynamics was lost when criminal law took over," she said, such that "women should not walk the halls of power in the criminal justice system but should rather begin the complicated process of disentangling feminism and its important anti-sexual coercion stance from a hierarchy-reinforcing criminal system that is unable to produce social justice."
To do that, Gruber believes the feminist movement must go back to before the war on crime, when the goal was changing society and not throwing men in jail.
"Activists should turn their attention to investigating methods of addressing rape and gender inequality outside of a system that carries so much political and practical baggage," she said. Social activism, scholarship and political involvement are a start. Pointing out sexist cultural attitudes is needed, too, she said, and women need to change their own attitudes about sexuality, and their attitudes toward men.
"Feminists can counteract the rape-permissive gender norms largely enforced by women instead of relentlessly focusing on the criminality of men," she said. "And feminists must talk to young men about their attitudes as people, not just seek to incarcerate them as criminals."
STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Iowa City, Iowa 52242-2500
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