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Reinforcing the Myth of the Crazed Rapist: a Feminist Critique of Recent Rape Legislation Christina E

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Reinforcing the Myth of the Crazed Rapist: a Feminist Critique of Recent Rape Legislation Christina E University of Missouri School of Law Scholarship Repository Faculty Publications 2001 Reinforcing the Myth of the Crazed Rapist: A Feminist Critique of Recent Rape Legislation Christina E. Wells University of Missouri School of Law, [email protected] Erin Elliott University of Missouri, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Civil Rights and Discrimination Commons, and the Law and Gender Commons Recommended Citation Christina E. Wells & Erin Elliott otleyM , Reinforcing the Myth of the Crazed Rapist: A Feminist Critique of Recent Rape Legislation, 81 B.U. L. Rev. 127 (2001) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. REINFORCING THE MYTH OF THE CRAZED RAPIST: A FEMINIST CRITIQUE OF RECENT RAPE LEGISLATION CHRISTINA E. WELLS. ERIN ELLIOTT MOTLEY** INTRO DU CTIO N ............................................................................................... 128 I. RECENT LEGISLATIVE INITIATIVES REGARDING SEXUAL VIOLENCE AGAINST W OMEN ............................................................ 131 A. Laws Requiring Registration and Notification Regarding Sexual Off enders ...................................................................... 131 B . Sexual PredatorLaws ................................................................. 135 C. FederalRules of Evidence 413-415 ............................................ 139 D. The Violence Against Women Act ............................................... 143 II. D ECONSTRUCTING RAPE ................................................................... 145 A. A Brief History of Rape Prosecution and Feminist Reform Efforts .......................................................................................... 145 B. The M yth of the Crazed Rapist.................................................... 153 III. THE CRAZED RAPIST MYTH AND THE NEW LEGISLATION ............ :... 161 A. Registration and Notification Laws ............................................ 161 B . Sexual PredatorLaws ................................................................. 167 C. FederalRules of Evidence 413-415 ............................................ 173 D. The Violence Against Women Act's Civil Rights Action ............. 180 IV. SOME THOUGHTS ON THE FEMINIST RESPONSE TO THE NEW LEGISLATION AND PRESCRIPTIONS FOR THE FUTURE ........................ 188 A. The Feminist Response to the New Legislation and Its Imp lications................................................................................ 188 B. Possible PerceptionsRegarding the New Legislation................. 192 Associate Professor of Law, University of Missouri School of Law; J.D., University of Chicago, 1988. - Staff Attorney II, Missouri Senate Research; J.D., University of Missouri School of Law, 1998. This paper was originally presented at the 2000 Law & Society Annual Meeting. Special thanks go to our panel members, especially discussant Kristin Bumiller, for their insightful comments. Thanks also go to Kathy Baker, Mary Elliott, Ray Elliott, Kent Gates, Tracey George, Chris Guthrie, and Chad Motley for their valuable insights, comments, and support. Tom Huffman, Linda Heringer, Erin Harris, Steve Hardin, and Tammy Eigenheer provided invaluable research assistance. This paper would not exist without the generous financial support provided by the University of Missouri Law School Foundation through the Amy Hinderer, John R. Weisenfels, John R. Whitmore, and Herbert Wolkowitz Faculty Research Fellowships. HeinOnline -- 81 B.U. L. Rev. 127 2001 BOSTON UNIVERSITY LAW REVIEW [Vol. 81:127 1., Registration and Notification Laws ......................................192 2. Sexual Predator Law s ............................................................194 3. Federal Rules of Evidence 413-415 ......................................195 4. The Violence Against Women Act's Civil Rights Action ....196 C ONCLU SION ...................................................................................................198 INTRODUCTION Sexual violence has received considerable attention in the last decade. In the wake of several high profile incidents and on the heels of increasing awareness of violence against women, legislatures across the country have enacted a bevy of laws aimed at those who perpetrate forcible rape. Congress enacted the Violence Against Women Act ("VAWA") which provides a civil rights action for victims of sexual violence based on gender animus.' It further amended the Federal Rules of Evidence ("FRE"), altering its longstanding ban on character evidence in criminal proceedings to allow admission of "propensity" evidence in trials of sex offenders. 2 Both the Congress and several state legislatures enacted statutes requiring authorities to notify the public of registered sex offenders.3 A number of states passed laws requiring indefinite civil commitment of sexual predators.4 Although the specific motivations behind each law differ, they unite in their desire to protect the 5 public against men who rape. Given the very real harms of rape and the fact that "[n]inety-eight percent of 42 U.S.C.A. § 13981 (West 1995). ("[T]he purpose of this part [is] to protect ...civil fights... by establishing a Federal civil rights cause of action for victims of crimes of violence motivated by gender." Id. § 13981(a)). The civil rights remedy is but one of a multitude of statutory provisions included in the Violence Against Women Act. See generally id. at §§ 13931-14040. The Violence Against Women Act of 1994 is codified in Titles 18 and 42 of the United States Code. The referenced portion in Title 42 contains six Parts that legislate Safe Streets for Women, Safe Homes for Women, Civil Rights for Women, Equal Justice for Women in the Courts, Violence Against Women Act Improvements, and National Stalker and Domestic Violence Reduction. See Violence Against Women Act of 1994 (Pub. L. No. 103-322, 108 Stat. 1902 (1994). 2 See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 320935, 108 Stat. 1796, 2136-37 (1994) (enacting Federal Rules of Evidence 413-415) (permitting the admission of evidence of similar crimes in sexual assault cases (FRE 413) and child molestation cases (FRE 414), and of similar acts in civil cases concerning sexual assault or child molestation (FRE 415)). 3 See infra notes 13, 22 for citations to the federal registration statute and the registration statutes of 47 states. 4 See infra note 34 for citations to 16 state statutes requiring indefinite civil commitment for sexual predators. I The laws described apply to a variety of sexual offenses, ranging from forcible rape to statutory rape to child molestation. Virtually all such laws, however, cover at least the crime of forcible rape. This article is concerned with the laws as they primarily relate to that crime. See 4 WILLIAM BLACKSTONE, COMMENTARIES *209, infra note 73, for a definition of forcible rape. HeinOnline -- 81 B.U. L. Rev. 128 2001 2001] THE CRAZED RAPIST the victims of rape never see their attacker caught, tried and imprisoned,"'6 one might argue that the new legislation is needed. After all, society has not always been receptive to victims' claims of rape. Decades of rape scholarship chronicle obstacles to prosecution of this crime, including onerous legal 8 requirements 7 and invidious societal stereotypes regarding rape victims. Feminist reformers spent nearly thirty years trying to eradicate these legal and social barriers to prosecution-in effect trying to convince the public and the legal system to take rape seriously. That these new laws demonstrate a serious attempt to increase the prosecution, conviction, and punishment for rape is arguably cause for rejoicing among feminists. In reality, these new laws substantially undermine feminist efforts. They do so by reinforcing the myth that men who rape are "brutish male aggressor[s] ...[and] sex crazed deviant sociopath[s] ...[who are] violent and sadistic [and] us[e] extreme force to violate [their] victim."9 Modem social science data debunks this myth and suggests that the average rapist is psychologically normal.' 0 Moreover, many studies suggest that most women know their rapists and that only a small portion of rapes involve violence 6 STAFF OF SENATE COMM. ON THE JUDICIARY, 103RD CONG., 1ST SESS., THE RESPONSE TO RAPE: DETOURS ON THE ROAD TO EQUAL JUSTICE iii (Comm. Print 1993). 7 See, e.g., Susan Estrich, Rape, 95 YALE L.J. 1087, 1099, 1135, 1138 (1986) [hereinafter Estrich, Rape] (discussing the legal requirement that the female victim prove nonconsent by "utmost resistance" or "reasonable physical resistance," and a common cautionary jury instruction regarding possible false accusations); Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a FairTrial in Rape Prosecutions,24 U.C. DAVIS L. REV. 1013, 1041-46 (1991) [hereinafter Torrey, Rape Myths] (discussing prompt complaint requirement, also known at common law as "immediate outcry," and the historical origins of the "false accusation" jury instruction in rape trials); Dawn M. Dubois, Note, A Matter of Time: Evidence of a Victim's Prompt Complaint in New York, 53 BROOKLYN L. REV. 1087, 1087-91, 1098-99 (1988) (discussing the prompt complaint and corroboration requirements); Karla Fischer, Note,
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