* Staff Writer, Boston College Third World Law Journal (2001–2002).
1 Susan Ehrlich, Representing Rape: Language and Sexual Consent 2 (2001).
2 See id. at 31–32.
3 See id. at 91–92.
4 See id. at 1. Ehrlich explains that by “constitutive” she means the way in which language can define and delimit the meanings attached to events and subjects. See id.
5 See Ehrlich, supra note 1, at 151–52.
6 See id. at 65–67.
7 See id.
8 See id. at 135.
9 See id. at 144.
10 See Ehrlich, supra note 1, at 146.
11 See id. Ehrlich quotes a discussion of legal scholar Kathryn Abrams’ conclusions. See id. (quoting S. McConnell-Ginet, Can linguists help identify sexual harassment? Paper Presented to the Linguistic Society of America Symposium: Linguistic Perspectives on Sexual Harassment at the Linguistic Society of America’s Annual Meeting 4 (Jan. 1995)).
12 See id. at 32. The race of the complainants and the accused is mentioned to recognize that the legal system’s demonization of men of color in attacks against white women did not enter into these cases. See id. (citing Catherine MacKinnon, Feminism Unmodified (1987)); Sharon Marcus, Fighting bodies, fighting words: A theory and politics of rape prevention, in Feminists Theorize the Political 385–403 (Judith Butler & Joan W. Scott eds., 1992); see also Toni M. Massaro, Experts, Psychology, Credibility, and Rape: The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony, 69 Minn. L. Rev. 395, 407–08 (1985). Massaro notes that “[b]lack defendants typically receive harsher treatment than white defendants . . . whereas both black and white defendants receive more lenient treatment when the victim is black.”
13 See Ehrlich, supra note 1, at 32, 33.
14 See id. at 32. Ehrlich relies on Susan Estrich’s terms “real rape” and “simple rape” to differentiate between rapes that are perpetrated by armed strangers as opposed to rapes that might meet the statutory definition of rape, but are not considered rape by police, prosecutors, judges, and juries. See id. at 19 (discussing Susan Estrich, Real Rape 4–7 (1987)). Examples of common types of “simple” rape include when a woman is forced to engage in sex with a date, an acquaintance, her boss, or a man she met at a bar; when no weapon is involved; and there is no overt evidence of physical injury. See id.
15 See id.
16 See Ehrlich, supra note 1, at 32.
17 See id.
18 See id. In accordance with the Criminal Code of Canada, the term sexual assault is used to refer to the type of acts allegedly committed by Matt. See id. at 22, 32. Connie alleged that Matt removed her clothes, penetrated her vagina with his finger, put his penis between her legs and rubbed it against her, and forced her to perform fellatio on him until orgasm. See id. at 34. In Canada, criminal laws governing acts of sexual aggression were revised in 1983, 1985, 1992, and 1995. See id. at 22. One crucial change involved replacing offenses of rape and indecent assault with the more general offense of sexual assault. See id. at 22. Ehrlich notes that this change attempted “to include under its rubric acts of sexual aggression that did not involve penetration.” Id. at 25. While the case Ehrlich studies does not involve traditional common-law rape (“carnal knowledge of a woman, not one’s wife, by force and against her will [which] included only penile-vaginal penetration”), most states in the United States have redefined penetration to include “sexual intercourse, cunnilingus, fellatio, and intercourse, or any intrusion, however slight, of any part of a person’s body or of any object into the genital or anal opening of another person’s body.” See Cassia Spohn & Julie Horney, Rape Law Reform: A Grassroots Revolution and Its Impact 21–22 (1992).
19 See Ehrlich, supra note 1, at 34.
20 See id. at 33.
21 See id.
22 See id. Matt went under Marg’s clothes and touched her breasts and vagina as well as put his foot between her legs and inserted his toe into her vagina, unbuttoned her shirt, sucked on her breasts, and put his fingers in her vagina. See id.
23 See id. at 34.
24 See Ehrlich, supra note 1, at 19. See generally Estrich, supra note 14, at 4–7; Susan Estrich, Rape, 95 Yale L.J. 1087, 1092 (1986).
25 See Ehrlich, supra note 1, at 20. Ehrlich describes her approach as a critical discourse analysis which is similar to
feminist linguistic studies, particularly the type that unpacks and deconstructs the sexist and androcentric assumptions encoded in linguistic representations, work in critical discourse analysis does not merely describe language in a dispassionate and disinterested way . . . proponents of critical discourse analysis assume that dominant social structures and processes are partly discursive in their nature and aim to expose how such discursive practices contribute to the production and reproduction of unequal social relations.
Id. at 35.
26 See id. at 20.
27 See id. at 67, 91–93.
28 See Ehrlich, supra note 1, at 121.
29 See Michelle J. Anderson, Reviving Resistance in Rape Law, 1998 U. Ill. L. Rev. 953, 957 (1998). Anderson describes the utmost resistance requirement as having
two elements: (1) a woman must have struggled to the utmost of her physical capacity and (2) her resistance must not have subsided until after penetration . . . if a woman did not resist the rape to the utmost of her physical capacity, she was not raped. If a woman struggled to the utmost of her physical capacity until doing so appeared futile to her, and only then acquiesced to the rapist’s advances, she also was not raped.
Id. at 963.
30 See Ehrlich, supra note 1, at 65. Estrich also discusses this focus on the role of the victim, stating that:
[In defining the crime, courts] have focused almost incidentally on the defendant—and almost entirely on the victim . . . [m]ens rea, where it might matter, is all but eliminated; prohibited force tends to be defined according to the response of the victim; and nonconsent—the sine qua non of the offense—turns entirely on the victim’s response.
Estrich, supra note 24, at 1094.
31 See Ehrlich, supra note 1, at 65.
32 See id. at 66.
33 See id. (citing Estrich, supra note 14, at 37).
34 See id. at 66–67.
35 See id. at 91.
36 See Ehrlich, supra note 1, at 91.
37 See id. at 91–92.
38 See id. at 31, 62–93.
39 See id. at 75–76.
40 See id. at 31.
41 See Ehrlich, supra note 1, at 31, 75–76.
42 See id. at 107.
43 See id.
44 See id. at 107, 119.
45 See id. at 95.
46 See Ehrlich, supra note 1, at 107.
47 See id. at 63.
48 See id. at 62–63, 67.
49 See id.
50 See Gregory M. Matoesian, Reproducing Rape: Domination Through Talk In the Courtroom 22 (1993).
51 See id.
52 See Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. Davis L. Rev. 1013, 1014–15 (1991).
53 See Deborah L. Rhode, American Bar Association’s Commission on Women in the Profession, The Unfinished Agenda: Women and the Legal Profession 8 (2001), http://www.abanet.org/women/home.html; Kenneth Winchester Gaines, Rape Trauma Syndrome: Toward Proper Use in the Criminal Trial Context, 20 Am. J. Trial Advoc. 227, 230–31 (1997); Massaro, supra note 12, at 404–05.
54 See Rhode, supra note 53, at 8. The American Bar Association’s Commission on Women in the Profession published a report that provided a comprehensive, contemporary review of the status of women in the American legal profession and justice system. See id. at 5.
55 See id.
56 See id. at 21–22. See generally Andrew E. Taslitz, Rape and the Culture of the Courtroom (1999) (discussing how cultural narratives about gender and sexual violence shape trial outcomes); Torrey, supra note 52 (discussing how the law’s willingness to tolerate myths about rape impedes the successful prosecution of rape).
57 See Gregory M. Matoesian, Language, Law, and Society: Policy Implications of the Kennedy Smith Rape Trial, 29 Law & Soc’y Rev. 669, 670 (1995).
58 See, e.g., Ehrlich, supra note 1, at 29; Torrey, supra note 52, at 1014–15. The term “myths” in this Book Review refers to fictions that inform society’s misunderstandings of rape. See, e.g., Ehrlich, supra note 1, at 29; Torrey, supra note 52, at 1014–15. Yet, it is important to note that many scholars of rape and rape trials have developed their own terms to refer to these fictions. See, e.g., Ehrlich, supra note 1, at 29; Torrey, supra note 52, at 1014–15. Ehrlich and Torrey both use the term “myth.” See Ehrlich, supra note 1, at 29; Torrey, supra note 52, at 1014–15. However, Andrew Taslitz uses the term “cultural rape narratives” to refer to “culturally pervasive tales of proper intergender sexual behavior.” Taslitz, supra note 56, at 19. Gregory Matoesian uses the term “patriarchal ideology” to refer to “ideas about sexual access and practice.” Matoesian, supra note 50, at 2. In later scholarship, Matoesian uses the term “patriarchal logic of sexual rationality” to refer to “arbitrary male standards—the all-or-nothing, impersonal, and penetration-oriented normative preferences of sexuality—governing the interpretation of sexual desire, sexual access and sexual interaction as these creatively unfold through the production of trial talk.” Matoesian, supra note 57, at 682. For the purposes of this Book Review the term “myths” is used broadly and encompasses all of these authors’ scholarship regarding their respective terms.
59 See Torrey, supra note 52, at 1014–15.
60 See id.
61 See id. at 1015.
62 See id.
63 See id. at 1025.
64 See Ehrlich, supra note 1, at 65–66.
65 See Torrey, supra note 52, at 1039. Torrey cites a 1977 study conducted by Nona J. Barnett and Hubert S. Feild which used an Attitudes Toward Rape Questionnaire that asked respondents to rate their degree of agreement or disagreement with statements respecting rape myths. See id. at 1039 n.119.
66 Ehrlich, supra note 1, at 67.
67 See Torrey, supra note 52, at 1041.
68 See id. at 1015, 1017–18. Torrey cites a 1980 study by Martha Burt that found many Americans believe rape myths and that American rape attitudes are strongly connected to other deeply held and pervasive attitudes such as sex-role stereotyping, distrust of the opposite sex (adversarial sex beliefs), and acceptance of interpersonal violence. See id. at 1017–18. Torrey also cites a 1985 study by James Check and Neil Malamuth that confirmed the connection between acceptance of rape myths, rape, and callous, unbelieving attitudes towards rape victims. See id. at 1019.
69 See id. at 1050. Torrey relies on Donald E. Vinson’s (a psychologist with Litigation Sciences) application of social science theories and techniques to more than 700 cases. See Torrey, supra note 52, at 1050 n.179.
70 David P. Bryden & Sonja Lengnick, Rape In The Criminal Justice System, 87 J. Crim. L. & Criminology 1194, 1322 (1997).
71 See Torrey, supra note 52, at 1050.
72 See Taslitz, supra note 56, at 7–8.
73 See Matoesian, supra note 50, at 102.
74 See Ehrlich, supra note 1, at 91; Matoesian, supra note 50, at 125; Taslitz, supra note 56, at 23–25.
75 See Ehrlich, supra note 1, at 91; Matoesian, supra note 57, at 681, 682–83.
76 See Ehrlich, supra note 1, at 91; Matoesian, supra note 57, at 681, 687.
77 See Taslitz, supra note 56, at 84, 90; Matoesian, supra note 57 at 678–79. At about 4 a.m. on March 30, 1991, William Kennedy Smith allegedly raped Patty Bowman at the Kennedy estate after the two met at a night club in Palm Beach, Florida. See Matoesian, supra note 57, at 670 n.1. The trial took place from late November to early December in 1991. See id. On December 11, 1991, the jury found Smith not guilty of rape. See id.
78 See Taslitz, supra note 56, at 90; Matoesian, supra note 57, at 679.
79 See sources cited supra note 78.
80 See Torrey, supra note 52, at 1041; sources cited supra note 78.
81 See Matoesian, supra note 57, at 670.
82 See Taslitz, supra note 56, at 82–88; Matoesian, supra note 57, at 671–73.
83 See Matoesian, supra note 57, at 669.
84 See Spohn & Horney, supra note 18, at 17; Taslitz, supra note 56, at 153; Matoesian, supra note 57, at 670.
85 See Spohn & Horney, supra note 18, at 21; Taslitz, supra note 56, at 153; Matoesian, supra note 57, at 670.
86 See Spohn & Horney, supra note 18, at 21.
87 See id.
88 See id.; Taslitz, supra note 56, at 153; Matoesian, supra note 57, at 670.
89 See Spohn & Horney, supra note 18, at 21.
90 See Matoesian, supra note 57, at 670; Torrey, supra note 52, at 1062.
91 See Torrey, supra note 52, at 1062–63.
92 See id.
93 See Spohn & Horney, supra note 18, at 173 (stating that rape law reforms have placed few constraints on the discretion exercised by adjudicators); Taslitz, supra note 56, at 154–55 (stating that rape law reform has failed largely because it does not address rape myths); Matoesian, supra note 57, at 672–73 (stating that the failure of rape law reform can be attributed in part to juror reliance on rape myths in their deliberations); Torrey, supra note 52, at 1014 (stating that despite rape law reforms, rape myths impede the successful prosecution of rape).
94 See Spohn & Horney, supra note 18, at 173; Matoesian, supra note 57, at 688–89; Torrey, supra note 52, at 1014.
95 See Spohn & Horney, supra note 18, at 5, 173. Spohn and Horney were the first social scientists to study the impact of rape reform in more than one jurisdiction and among the first to examine the impact of rape reform. See id. at 5. They collected data on the outcome of rape cases, before and after reforms were implemented, and the attitudes of criminal justice officials toward reform. See id. Their data consisted of every rape case processed over a fifteen year period in six jurisdictions—Detroit, Michigan; Cook County (Chicago), Illinois; Philadelphia County (Philadelphia), Pennsylvania; Harris County (Houston) Texas; Fulton County (Atlanta), Georgia; and Washington, D.C. See id. at 5, 35. Because the extent of reforms varied across the United States, Spohn and Horney chose three cities known for stronger reforms (Detroit, Chicago, and Philadelphia) and three cities with weaker reforms (Houston, Atlanta, and Washington, D.C.). See id. at 35–36.
96 See Spohn & Horney, supra note 18, at 173.
97 See Matoesian, supra note 57, at 672–73.
98 See Spohn & Horney, supra note 18, at 128–29.
99 See id. at 159; Estrich, supra note 14, at 18–19; Gaines, supra note 53, at 231.
100 Spohn & Horney, supra note 18, at 129.
101 See id. at 155.
102 See id.
103 See Matoesian, supra note 57, at 676–77.
104 See Taslitz, supra note 56, at 154–55; Matoesian, supra note 57, at 672–73.
105 See Rhode, supra note 53, at 11, 36.
106 See id.
107 See id.
108 See id.
109 See id.
110 See Arthur H. Garrison, Rape Trauma Syndrome: A Review of a Behavioral Science Theory and its Admissibility in Criminal Trials, 23 Am. J. Trial Advoc. 591, 646 (2000).
111 See id.
112 See Taslitz, supra note 56, at 132–33; Gaines, supra note 53, at 227; Garrison, supra note 110, at 646; Torrey, supra note 52, at 1065.
113 See sources cited supra note 112.
114 See Gaines, supra note 53, at 228. Rape Trauma Syndrome has four stages:
First, the patient experiences a type of stressor, which causes distress symptoms in most people. Second, the patient re-lives the underlying trauma by one of several means, including recurrent nightmares and vivid memories of the event. Third, the patient avoids stimuli associated with the trauma or demonstrates reduced responsiveness. This lessened responsiveness can be “indicated by at least three characteristics including feelings of detachment from others, the sense of a foreshortened future, and a restricted range of (feeling or emotional response).” Last, the patient exhibits “two or more [particular] symptoms not present (prior to) the trauma, including sleep disturbance, exaggerated startle response, and hypervigilance.” When the first element, the stressor, is rape, therapists and counselors diagnose the patient with rape trauma syndrome.
Id.
115 See Ann Wolbert Burgess & Lynda Lytle Holmstrom, Rape Trauma Syndrome, 131 Am. J. Psychiatry 981, 982–84.
116 See id.
117 See id. at 982.
118 See id. at 981.
119 See id. at 982.
120 See Burgess & Holmstrom, supra note 115, at 982.
121 See id.
122 See id. at 982–83.
123 See id.
124 See id. at 983.
125 See Garrison, supra note 110, at 591.
126 See id.; Massaro, supra note 12, at 427, 431.
127 See Garrison, supra note 110, at 591.
128 See, e.g., Commonwealth v. Mamay, 553 N.E.2d 945, 951 (Mass. 1990); People v. Taylor, 552 N.E.2d 131, 136 (N.Y. 1990); State v. Kinney, 762 A.2d 833, 840, 842–43 (Vt. 2000).
129 See cases cited supra note 128.
130 See 552 N.E.2d at 134.
131 See Ehrlich, supra note 1, at 67, 152.
132 See id. at 135.
133 See id. at 144.
134 See Rhode, supra note 53, at 8.
135 See Ehrlich, supra note 1, at 135, 144; Garrison, supra note 110, at 649.
136 See Garrison, supra note 110, at 646.
137 See id. at 632.
138 See id. at 649.
139 See id. at 639.
140 See Torrey, supra note 52, at 1069.
141 See David McCord, The Admissibility of Expert Testimony Regarding Rape Trauma Syndrome in Rape Prosecutions, 26 B.C. L. Rev. 1143, 1155 (1985). Studies involving the average lay person are highly relevant to juror sentiment because, as Torrey notes, “[t]here is no reason to believe that jurors, who are intended to represent a cross-section of the community, will have attitudes about women, rape, and rapists different from those held by members of society as a whole.” Torrey, supra note 52, at 1046–47.
142 See McCord, supra note 141, at 1155.
143 See id.
144 See id.
145 See id.
146 See id.
147 See Torrey, supra note 52, at 1067–69. Torrey cites numerous studies conducted by Neil Malamuth and James Check. See id. at 1067 n.258
148 See id.
149 See id.
150 See id.
151 See Torrey, supra note 52, at 1067–69. A follow-up study by the same researchers, devised specifically to gauge the success of these types of debriefings, yielded similar results. See id. at 1068–69.
152 See Ehrlich, supra note 1, at 144; Torrey, supra note 52, at 1067–69.
153 See sources cited supra note 152.
154 See Torrey, supra note 52, at 1067–69.
155 See, e.g., Mamay, 553 N.E.2d at 951 (allowing expert testimony on rape trauma syndrome to explain that not all victims of rape and sexual assault report the event immediately and to explain that, in the context of a trust relationship, such as a doctor-patient relationship, some victims may return to the trusted relationship for further contact with the perpetrator of the assault); Taylor, 552 N.E.2d at 136 (allowing expert testimony on rape trauma syndrome to explain reaction of complainant in the hours following her attack, and to explain why complainant may have been initially unwilling to report that defendant had been man who attacked her); Kinney, 762 A.2d at 842–43 (allowing expert testimony on rape trauma syndrome and characteristics of rape victims to explain why a rape victim might not struggle physically or loudly, might fall asleep in her attacker’s bed after the rape occurred, and might not immediately report the rape).
156 See Kinney, 762 A.2d at 842–43.
157 See Garrison, supra note 110, at 639.
158 See cases cited supra note 155.
159 See Gaines, supra note 53, at 251–52.
160 See id.
161 See Taylor, 552 N.E.2d at 137.
162 See, e.g., State v. Marks, 647 P.2d 1292, 1299 (Kan. 1982) (finding Rape Trauma Syndrome evidence relevant when a defendant argues the victim consented to sexual intercourse); Kinney, 762 A.2d at 842 (allowing Rape Trauma Syndrome evidence offered to respond to defense claims that the victim’s behavior was consensual sex because it was inconsistent with rape); State v. McCoy, 366 S.E.2d 731, 737 (W. Va. 1988) (finding that where consent is a defense to a rape charge, qualified expert testimony on rape trauma syndrome is relevant and admissible).
163 See cases cited supra note 162.
164 See Taylor, 552 N.E.2d at 136; Kinney, 762 A.2d at 842.
165 See 552 N.E.2d at 136; Garrison, supra note 110, at 644.
166 See Taylor, 552 N.E.2d at 132.
167 See id.
168 See id.
169 See id. at 132, 136.
170 See id.
171 See Taylor, 552 N.E.2d at 132–33.
172 See id.
173 See id. at 132.
174 See id.; Torrey, supra note 52, at 1025, 1064–65.
175 See Taylor, 552 N.E. 2d at 136.
176 See id.; Ehrlich, supra note 1, at 135, 144.
177 See, e.g., State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982); Taylor, 552 N.E.2d at 138–39.
178 See Gaines, supra note 53, at 230; Garrison, supra note 110, at 639.
179 See Gaines, supra note 53, at 229–30.
180 See, e.g., Saldana, 324 N.W.2d at 229 (finding expert witness’ testimony that described Rape Trauma Syndrome and gave opinion that complainant had been raped was “no help to the jury and produces an extreme danger of unfair prejudice”); Taylor, 552 N.E.2d at 139 (finding trial court erred in permitting the admission of expert testimony regarding rape trauma syndrome to prove that a rape occurred because of the presence of symptoms of Rape Trauma Syndrome).
181 See 552 N.E.2d at 138-39. People v. Taylor is two cases consolidated on appeal, Taylor and People v. Banks. Id. The court found the use of expert testimony on Rape Trauma Syndrome permissible in Taylor, but prejudicial in Banks. Id.
182 See id. at 133.
183 See id. at 138–39
184 See Garrison, supra note 110, at 647–48.
185 See id.
186 See Hilburn v. State, 765 P.2d 1382, 1386 (Alaska Ct. App. 1988) (holding that testimony tending to establish that complainant’s behavior was not inconsistent with a person who had undergone trauma was admissible specifically because the expert did not say complainant’s behavior “was consistent with an Eskimo woman who had been raped,” that complainant “was suffering from ‘rape trauma syndrome,’ or that he believed her testimony was truthful”); State v. Gettier, 438 N.W.2d 1, 5–6 (Iowa 1989) (holding that testimony limited to an explanation of the effects of Post Traumatic Stress Disorder and the typical reaction of a rape victim was admissible because “the expert neither used the term ‘rape trauma syndrome’ nor offers an opinion on whether the victim had been raped”); State v. Allewalt, 517 A.2d 741, 751 (Md. 1986) (holding that psychiatrist’s testimony that victim suffered from posttraumatic stress disorder was admissible because “Dr. Spodak never used the term ‘rape trauma syndrome,’ and avoiding that terminology is more than cosmetic. The concern with unfair prejudice is largely reduced when the terminology does not equate the syndrome exclusively with rape.”)
187 See cases cited supra note 186.
188 See Taslitz, supra note 56, at 132.
189 See id.
190 See Ehrlich, supra note 1, at 65.
191 See id.
192 See Torrey, supra note 52, at 1014.
193 See Ehrlich, supra note 1, at 146.
194 See id. at 135.
195 See id. at 144.
196 See id. at 146–48.
197 See id. at 144; Rhode, supra note 53, at 8.
198 See Ehrlich, supra note 1, at 135.
199 See Taslitz, supra note 56, at 132.
200 See Ehrlich, supra note 1, at 56–58; Taslitz, supra note 56, at 132.
201 See Ehrlich, supra note 1, at 56–58.
202 See id.
203 See id.
204 See id.; Spohn & Horney, supra note 18, at 159, 176.
205 See Ehrlich, supra note 1, at 57.
206 See id.
207 See Torrey, supra note 52, at 1014.
208 See Ehrlich, supra note 1, at 135; Rhode, supra note 53, at 11, 36.
209 See Taslitz, supra note 56, at 132.
210 See Spohn & Horney, supra note 18, at 173.