The Discourses of Sex Crimes Mary Little A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Washington 2017 Reading Committee: Gail Stygall, Chair Thomas Cobb Sandra Silberstein Program Authorized to Offer Degree: English © Copyright 2017 Mary Little University of Washington Abstract The Discourses of Sex Crimes Mary Little Chair of the Supervisory Committee: Professor Gail Stygall English Department This project critically examines the language of sex crimes in order to reveal the ways that legal structures are embedded with what Susan Ehrlich describes as “androcentric and sexist assumptions that typically masquerade as ‘objective’ truths.” I use a feminist interdisciplinary approach to assess the common discourses of acquaintance rape and sex work in the United States in order to demonstrate how cultural myths of sexual behavior inform legal standards. These presumably neutral legal standards in turn influence broader discourses of sexuality and sexual crime, lending them a convincing authority. Consequently, these inherently gendered discourses have become inextricable from the legal realities of sexual crime and serve to mitigate or justify violence against women while at the same time defending perpetrators. My research supports the idea that legal reform of sex crimes and the eradication of harmful sex crime discourses requires a two-pronged approach on a legal level and a cultural level. Changing societal attitudes about sex crimes, in particular ideologies of sexuality and gender, is necessary for these harmful discourses to be discontinued. Simultaneously, more attention needs to be paid to judicial training and continuing education regarding sexual crime in order to eradicate these discourses from our legal system and achieve successful legal reform of these crimes. Acknowledgments I would like to first thank Professor Beth Britt, whose Rhetoric of Law class at Northeastern University first introduced me to legal rhetoric and inspired my love for legal discourse, and who was infinitely encouraging and supportive of my choice to attend graduate school. I would also like to thank my committee for their insightful comments and conversations about this project, without which this project would be a lot less coherent. Thank you to Sandy Silberstein, who provided much-needed editing and constructive feedback and came through for me in clutch moments when I thought this project would never get done. Thank you to Tom Cobb, who I roped into my research several years ago, and who has been invaluable in furthering my legal education and encouraging me with his enthusiasm ever since. I’m sorry for always trying to foist carbs on you. Special thanks to my Chair Gail Stygall, who has been guiding me through the abyss of legal interdisciplinary work since day one. You’ve not only been instrumental in completing this project, but you’ve also been a great gossip partner, rant-listener, and most importantly, mentor. Eternal thanks to Lilly Campbell, whose friendship was at least 40% of the reason I stayed in graduate school, and who led by such example that we all knew if you were 6-8 months behind her academic accomplishments you were still in excellent shape. You’ve been an inspiration to me, and forever be the only reason I visit Wisconsin. Last but not least I’d like to thank Josh. A guy who is thorny, but not totally inaccessible, and who has learned way more about rape than he probably ever wanted to. Thanks for making me laugh, for cooking me risotto, and for being a great partner. It’s likely I could have written this without you in my life, but I’m glad I didn’t have to. TABLE OF CONTENTS Introduction…………………………………………………………………………………………….1 Chapter 1. Feminist Theories of Discourse and Law………………………………………….3 Chapter 2. Governmentality and the Gendered Language of US Prostitution Laws………….37 Chapter 3. The Discourses of Rape……………………………………………………………82 Chapter 4. The “Gray Rape” Discourse: When Rape Isn’t Really Rape……………………..115 Chapter 5. The Problem with Textualism: A Feminist Critique ……………………………..164 Chapter 6. Legal Reform and Cultural Change……………………………………………….218 Bibliography…………………………………………………………………………………..228 Introduction: Outline of the Dissertation This dissertation is divided into six chapters, each focusing on a different aspect of the discourses of sex crimes. Chapter 1’s purpose is to outline the feminist theories framing my analyses, as well as to justify my approach to examine the discourses of sex crimes with an explicit feminist focus. In Chapter 2, “Governmentality and the Gendered Language of US Prostitution Laws” I draw on Foucauldian ideas of discourse and governmentality in order to examine the language of sex work in the United States. I first briefly trace the history of prostitution in the United States and summarize the current state of sex work. I then compare how the language of the law, culled from various US state penal codes, aligns with conventional beliefs regarding women’s sexuality and with traditional charges made against prostitution, in order to assess the gendered ideologies underpinning the laws. Chapters 3 and 4 focus on rape myths and the discourses of acquaintance rape. In Chapter 3, I synthesize research on rape myths and rape scripts with traditional discourses of rape to establish a theoretical framework for my analysis in Chapter 4. I trace the origins of rape myths and rape scripts in order to illustrate that the logic of various rape discourses, in particular gray rape discourses, are justified by sexist ideologies. I demonstrate how rape myths and scripts have been built upon scientific and cultural understandings of sex and gender, and how these inform common discourse of rape. In Chapter 4 I analyze two prominent campus rape cases in order to show how folk ideas of language and sexual relationships intersect and are then used to both discredit rape victims and defend rapists, allowing for the continued denial of acquaintance rape as “real rape.” Chapter 5 explores how legal methods of interpretation can have a significant impact on how issues of gender are taken up in the law. In particular, I discuss the flaws of a Textualist 1 approach, from a legal theory as well as a discourse theory perspective, and argue that Textualism as an interpretive approach obscures gendered ideologies embedded within the law. Additionally, because Textualism is framed as being based in rational, logical thought, it reifies gendered stereotypes and presents them as simple truisms, allowing the law to both hide sexist ideologies and perpetuate them. Because a Textualist approach by definition ignores social context, it allows the law to ignore the realities of women’s experiences and thereby denies women equal treatment on legal terms. Finally, Chapter 6 summarizes and evaluates the conclusions of my project and delves more deeply into the relationship between law reform and cultural change. Specifically, I pull from Susan Caringella’s book on rape reform to argue that legal reform of sex crimes, and the eradication of harmful sex crime discourses, requires a 2-prong approach; on a legal level and a cultural level. Changing societal attitudes about gender issues, in particular ideologies of sex and gender, is necessary for continued success in legal reform of sex crimes. In particular, I focus on how education, especially judicial training and continuing education, is they key element in eradicating these discourses. 2 Chapter 1: Feminist Theories of Discourse and Law There seems little point to our academic interests [in language and gender] if they do not at some stage articulate with real-world concerns and enable us or our readers to identify practices [that are] based more on stereotypes and prejudice than they are on people’s actual behavior in the real world. At some point, our research has to be able to travel out of the academy order to draw attention to and challenge unquestioned practices that reify certain behaviors as being morally, or aesthetically, better than others (Holmes and Meyerhoff 14). Janet Holmes and Miriam Meyerhoff make this articulate pronouncement in the introduction to the book The Handbook of Language and Gender as part of their framing of the articles within. When I first read this passage, I was impressed with the explicitness and pointedness of such a statement; rarely in my academic pursuits had I come across such a blatant dismissal of bland theoretical research expressed in such a matter-of-fact way. I also felt like I had finally found the academic idols I had been looking for; women who only saw value in research that contributed meaningfully to real-world concerns in order to challenge the stereotypes and prejudices that plague our society. I too see little point in doing research on topics in language and gender that exist only to scintillate academic interests, and find myself increasingly frustrated by abstruse scholarly research that only serves to justify an academic’s existence in the world. Therefore, I have done my best to produce scholarship that embodies what Holmes and Meyerhoff describe—every chapter attempts to draw attention to or challenge conventional views of women within the law, and illustrate when legal practice has been based on stereotypes and prejudice instead of on realities. In order to do this, I have taken an explicit feminist approach to my topics, meaning I begin this research from the position that historically, women have been unfairly discriminated against in a number of ways and my research will hopefully contribute to changing that. Kathleen Barry, distinguished sociologist and feminist, once wrote that, “the facts of women’s subordination often lie in realities that are obscured in silence or normalized in 3 acceptance but that nevertheless dehumanize and brutalize us as women even when we do not directly experience their most extreme manifestations” (84). That is, women’s continued relegation to “lesser than” is often camouflaged as “normal,” and the ramifications of this can be extreme, especially within the law.