## 1. Common Themes and the Liberal-to-Radical Continuum



Virtually all feminist thinking about rape shares several underlying
themes. First among these is feminists' emphasis on
"breaking the silence" around rape. Feminist thought and
activism have challenged the myth that rape is rare and exceptional,
showing that it is in fact a common experience in the lives of girls
and women. In recent decades, this awareness emerged in feminist
"speakouts" and consciousness-raising groups, where women
shared their experiences of rape and other forms of abuse. It has now
been amply confirmed by research: according to one study of over
16,000 Americans, 18.3% of women report having been victims of rape or
attempted rape at some time in their lives (Black et al., 2011). Of
these women, 42.2% were under age eighteen when they were first raped;
an earlier study showed that these women were twice as likely to
report having been raped as adults (Tjaden and Thoennes, 2000).
Indeed, many women suffer multiple rapes in their lives: in the same
earlier study, among those who reported having been raped in the past
year, the average number of rapes per woman during that time period
was 2.9.



An accurate estimate of rape's frequency requires a clear
understanding of rape itself and of the varied circumstances in which
it occurs. Often contributing to the underestimation of rape's
frequency is a narrow and stereotypical conception of what rape is:
for instance, the image of a stranger jumping out from behind the
bushes, brandishing a weapon at a woman he has never seen before.
While such rapes do occur, the great majority of rapes are committed
by a man or men known to the victim: dates, relatives, friends,
bosses, husbands, neighbors, co-workers, and more. (For this reason,
again contrary to stereotype, most rapes are intraracial.) In the
study of over 16,000 Americans mentioned above, 51.1% of female
victims were raped by an intimate partner, and 40.8% by an
acquaintance (Black et al., 2011). Remarkably few assailants are
punished: with estimated U.S. state conviction rates of two to nine
percent of total rapes (Kim 2012, 264), "ninety-four to
ninety-eight percent of total rapists and approximately eighty-four
percent of reported rapists go free" (Kim 2012, 272).



Perhaps the most basic challenge that feminists have posed to
traditional views of rape lies in the recognition of rape as a crime
against the victim herself. For much of recorded history women were
the property of men, with their value as property measured largely by
their sexual "purity." In this context, rape was regarded
as a property crime against a woman's husband or father
(Burgess-Jackson 1996, 44-49). A raped woman or girl was less valuable
as property, and penalties for rape often involved fines or other
compensation paid to her husband or father (Burgess-Jackson 1996, 68).
The marital rape exemption in law, which survived in the U.S. into the
1990's, is clearly a remnant of this approach, assuming as it
does that no crime is committed when a man forces intercourse upon his
wife, since she is his own property; the property status of enslaved
African-American women was also thought to entitle their owners to the
women's unrestricted sexual use. A further corollary of this
view was that women who were *not* the private property of any
individual man--for instance, prostitutes--were unrapeable,
or at least that no one important was harmed by their rape (Dworkin
1997, 196-202, Burgess-Jackson 1996, 46-47, 69). Given this
entrenched historical and cultural legacy, feminists'
redefinition of 'rape' as a crime against the woman
herself is nothing short of revolutionary.



Sadly, the rate of rape reporting remains low; studies using random
sample surveys of large numbers of women find reporting rates ranging
from 16% to 36% (Anderson 2003, 78). Rates of conviction, too, remain
substantially lower than for other violent crimes; some studies
estimate a conviction rate of 5% (Caringella 2008) in the U.S.
Feminists' recognition of the severity and pervasiveness of
rape's harms, and of how infrequently victims receive justice,
has inspired decades of activism for social and legal change.
Feminists in many U.S. states have succeeded not only in changing
legal definitions of rape (see below), but also in ending many
damaging and sexist practices in rape trials. For instance,
"rape shield" laws now restrict the admissibility of
evidence about a victim's sexual history, and most jurisdictions
have eliminated the "prompt reporting" requirement, the
corroboration requirement, and the reciting of the traditional
"cautionary rule" (that rape is a charge easy to make and
hard to disprove). All of these practices reflect sexist and false
assumptions--for instance, that rape only happens (or only
matters when it happens) to sexually "pure" or
"virtuous" women, and that women are likely to lie about
having been raped--while increasing the trauma of rape trials for
victims and decreasing the likelihood of convictions. In addition to
pressing for changes in law and in police and prosecutorial practices,
feminists have founded and staffed rape crisis centers and hotlines to
support victims, whether or not they choose to pursue charges against
their attackers.



Feminist views of rape can be understood as arrayed on a continuum
from liberal to radical. Liberal views tend to regard rape as a
gender-neutral assault on individual autonomy, likening it to other
forms of assault and/or illegitimate appropriation, and focusing
primarily on the harm that rape does to individual victims. More
radical views, in contrast, contend that rape must be recognized and
understood as an important pillar of patriarchy. Johnson defines
patriarchy as a social system in which men disproportionately occupy
positions of power and authority, central norms and values are
associated with manhood and masculinity (which in turn are defined in
terms of dominance and control), and men are the primary focus of
attention in most cultural spaces (2005, 4-15). Radical feminists see
rape as arising from patriarchal constructions of gender and sexuality
within the context of broader systems of male power, and emphasize the
harm that rape does to women as a group.



In addition, radical feminist approaches to rape often share one or
more of the following three features. First, they regard the
deprivation of women's bodily sovereignty--in particular,
male control over the sexual and reproductive uses of women's
bodies--as a central defining element of patriarchy (Whisnant
2007). As a result, they analyze rape as one of multiple forms of
men's sexual violence and exploitation, looking at their
interconnections and how they work in concert to maintain and
reinforce women's oppression. Second, they expand the definition
of 'rape' to encompass more than just overt physical force
and violence (or the explicit threat thereof). Recognizing the ways in
which broad patterns of male power systematically compromise
women's bodily and sexual freedom, and challenging the equation
of female submission with meaningful consent, they tend to see a kind
of continuum (rather than a bright dividing line) between rape and
much "normal" heterosexual activity. Third, the focus on
group-based oppression has also led many radical feminist thinkers to
examine the role of rape itself, and of ideologies about rape, in
creating and reproducing not only patriarchy but multiple systems of
domination, including racism and colonialism.


## 2. Criteria: What Counts?



Feminists are committed to ensuring that women's and
girls' experiences of sexual violation are taken seriously as
such, that the harm they suffer therein is recognized, and that those
who inflict that harm are held accountable. Achieving these goals has
often involved arguing that certain kinds of encounters that have
previously not been socially or legally recognized as rape should be
so recognized--thus, challenging overly restrictive ideas (often
encoded in law) about what counts as rape (Burgess-Jackson 1996,
77-86; Sanday 1996, 161-183; Bevacqua 2000). Obvious examples include
the abolition of marital-rape exemptions and the recognition of date
and acquaintance rape. Feminists have also challenged the idea
(derived from English common law) that, in order for an encounter to
count as rape, the victim must have displayed "utmost" (or
even any) physical resistance, as well as the assumption that rape
must involve vaginal penetration by a penis (victims are raped orally,
anally, and/or with fingers or objects).



There are varying feminist views about whether and how the concept of
rape, and hence its framing in the law, requires further renegotiation
or expansion.


### 2.1 Consent



Both social and legal understandings of rape are typically based at
least partly on the notion of consent. (Many laws also include a force
requirement, about which more below.) To consent to something is to
reverse a *prima facie* supposition about what may and may not
be done. In most contexts, there is a standing presumption that one
does not have access to and may not make use of another's body,
property, personal information, or other elements of his or her
personal domain. This presumption is reversed, however, when (and for
as long as) the other consents to such access. Consent thus alters the
structure of rights and obligations between two or more parties.



Assuming for the moment that, in sexual encounters, rape exists where
consent is lacking, the question then becomes what counts as consent.
Women's sexual consent has in many instances been understood
quite expansively, as simply the absence of refusal or resistance;
feminists have criticized this approach on the grounds that, among its
other untoward implications, it regards even unconscious women as
consenting (MacKinnon 1989b, 340; Archard 1998, 85). Furthermore, it
has too often been assumed that a woman's appearance, attire,
status, location, prior sexual history, or relationship to the man in
question either function as stand-ins for consent (that is, as
"asking for it") or render her consent irrelevant or
unnecessary. A vital task on the feminist agenda has been to challenge
and discredit such ideas--to deny that what a woman wears, where
she goes and with whom, or what sexual choices she has made in the
past have any relevance to whether she should be seen as having
consented to sex on a particular occasion.



Consent in general may be understood as either attitudinal or
performative (Kazan 1998). Attitudinal accounts see consent as a
mental state of affirmation or willingness, while performative
accounts see it as a certain kind of action or utterance (for
instance, saying "yes" or nodding). Because the kinds of
behaviors mentioned above (such as wearing revealing clothes, going
somewhere alone with a man, or engaging in heavy petting) have often
been claimed by perpetrators to constitute evidence that a woman was
in a mental state of willingness to have intercourse, feminists have
often rejected attitudinal accounts in favor of performative ones;
with a performative account, in contrast, a defendant can be
challenged to articulate exactly what the woman said or did that
constituted her consent to intercourse. An added advantage of a
performative account is that it suggests that sexual consent is not a
woman's implied default state, but rather must be actively and
affirmatively granted. Again, this is in contrast to traditional
patriarchal views, which often assumed that unless a woman physically
resisted--again, even "to the utmost"--a
man's attempt to have intercourse, she was consenting (or at
least he was justified in proceeding on that assumption).



One limitation of a purely performative account of consent is that it
does not take into account the context in which the relevant behavior
or utterance occurs. For instance, if a woman says "yes"
or even feigns sexual enthusiasm in order to keep a knife-wielding
attacker from becoming angry and hurting or killing her, it would be
absurd to regard her behavior or utterance as consent (or at least as
meaningful consent). The question is what other contextual constraints
and pressures may also undermine the validity of a woman's
(apparent) consent. To put the point another way, having granted that
"no" always means no, we must recognize that, in some
cases, "yes" also means no. There are many kinds of
explicit and implicit threats that render a woman's consent to
sex less than meaningful: the man may threaten to sue for custody of
their children, to derail her green card application, to evict her, or
simply to sulk and make her life miserable for days should she refuse
to have sex. Which (if any) such nonviolent coercive pressures should
be regarded as rape, either morally or legally, is a matter of some
controversy (Schulhofer 1998; Burgess-Jackson 1996, 91-106).



The question is especially important from a feminist point of view,
since it is to be expected that in a patriarchal society men
frequently hold positions of social, legal, and/or institutional power
over women and are thus positioned to withhold important benefits from
women who refuse them sexual access, in addition to threatening harms
and penalties. Viewing at least certain kinds of nonviolent coercive
pressures as incompatible with meaningful consent may yield the
conclusion that some *quid pro quo* sexual harassment is also
rape (Falk 1998). Furthermore, some radical feminists'
description of prostitution as "commercial sexual
violence" (Jeffreys 1997) reflects an expansive understanding of
the economic and other coercive pressures that often compel
women's consent to sexual acts in prostitution (even where
physical violence does not play a role).


### 2.2 *Mens rea*



A further complicating question is whether the criminal law's
usual requirement of *mens rea* (or "guilty mind")
should apply to rape and, if so, how that requirement should be
interpreted. In the most general terms, a *mens rea*
requirement means that the prosecution must show not only that
nonconsensual sex occurred, but also that the man was in a certain
state of mind with regard to the woman's lack of consent. Just
what that state of mind is--what counts as *mens rea* in
cases of rape--is a matter of some dispute (Burgess-Jackson 1996,
137-161).



The most conservative position--defended most famously in the
1976 *DPP v Morgan* decision (Baron 2001,
9-14)--holds that a man has *mens rea* only if he
believes the woman is not consenting (or that she is at least probably
not consenting). On this view, a man who sincerely believes that the
woman is consenting is not guilty of rape, no matter how unreasonable
his belief may be under the circumstances. A more moderate view is
that a man has *mens rea* if he either believes the woman is
not consenting or believes unreasonably that she is consenting. Thus,
in jurisdictions where this understanding of *mens rea* is in
force, the question of whether the woman actually consented often
gives way--particularly in cases of date and acquaintance
rape--to the question of whether the man reasonably believed she
consented.



Theorists have different views about the conditions under which it is
reasonable for a man to believe that a woman is consenting to sexual
intercourse. Husak and Thomas (1992) argue that there are social and
behavioral conventions (or "courtship rituals") by which
women manifest their willingness to have sex, and that where a woman
has engaged in such conventions, it is reasonable for a man to believe
she is consenting to sexual intercourse. Archard (1997) argues
forcefully against this view, however, pointing out that any such
conventions are likely to be ambiguous and not universally understood
(particularly since research shows that men routinely interpret
women's behavior in more sexual terms than women mean or
intend), that a man risks doing serious harm by relying on his beliefs
about such conventions, and that there is a ready alternative to
risking such harm, namely, inquiring explicitly as to his
partner's consent or lack thereof.



One influential interpretation of "reasonable belief" in
sexual consent is that of Lois Pineau (1989), who points out that
judgments of reasonableness in this area must be based on some
normative conception of healthy, normal sexual interaction. The
prevailing conception, which she calls the
"aggressive-contractual model," holds that women's
sexually provocative behavior generates enforceable agreements to have
sex, that male sexuality is uncontrollable past a certain point, and
that women are not to be trusted in matters of sexuality. Pineau
believes that this model is the backdrop against which many people
base their judgments about reasonable belief in rape cases. The
aggressive-contractual model should be replaced, she argues, with a
model of "communicative sexuality," one that emphasizes
"an atmosphere of comfort and communication, a minimum of
pressure, and an on-going checkup on one's partner's
state" (1989, 231). Communicative sexuality is most likely to be
rewarding for both parties, allows them to promote each other's
sensual ends non-manipulatively and non-paternalistically, and
observes norms appropriate to friendship and trust. Because it is
through communication that one gains knowledge of one's
partner's desires or lack thereof, Pineau contends that
"where communicative sexuality does not occur, we lack the main
ground for believing that the sex involved was consensual." She
continues:



> 
> where a man does not engage in communicative sexuality, he acts either
> out of reckless disregard, or out of willful ignorance. For he cannot
> know, except through the practice of communicative sexuality, whether
> his partner has any sexual reason for continuing the encounter. And
> where she does not, he runs the risk of imposing on her what she is
> not willing to have. All that is needed, then, in order to provide
> women with legal protection from date rape is to make both reckless
> indifference and willful ignorance a sufficient condition of *mens
> rea*, and to make communicative sexuality the accepted norm of sex
> to which a reasonable woman would agree. (239-40)
> 



In short, if a man does not engage in communicative sexuality, then he
does not really know whether his partner is consenting; thus, if he
nonetheless believes that she is consenting, then that belief is
unreasonable.



Finally, some feminists have argued that rape should be a strict
liability offense, that is, one with no *mens rea* requirement
at all. According to MacKinnon, a *mens rea* requirement means
that "the man's perceptions of the woman's desires
determine whether she is deemed violated," and this approach is
problematic because "men are systematically conditioned not even
to notice what women want" (1989, 180-81). Adopting a
"reasonable belief" standard does not help, in her view,
because the standard for "reasonableness" masquerades as
objectivity while almost inevitably relying on patriarchal and
pornographic assumptions; thus "measuring consent from the
socially reasonable, meaning objective man's, point of view
reproduces the same problem under a more elevated label"
(181).



Here MacKinnon speaks to a broader debate in feminist legal theory, in
which some feminists have argued for the adoption of a
"reasonable woman standard" in matters ranging from sexual
harassment to stalking, battering, and rape. Proponents of this
approach believe that a gender-neutral standard of reasonableness is
impossible given the differences between men's and women's
social positioning. They point out, for instance, that men have
greater social and (in most cases) physical power than women and,
relatedly, that women's beliefs and reactions are shaped by the
constant threat of male violence with which women live (Kerns 2001).
Because of these differences, women and men often have divergent
perceptions of interpersonal behavior (Scheppele 1991, 45): for
instance, behavior that men see as merely flirtatious may be
experienced by women as offensive or even threatening, and women may
see advances as physically intimidating that men see as aggressively
amorous. Proponents thus contend, in the words of Hubin and Haely (who
reject this approach), that "when we seek to determine whether
the actions and words of the victim constitute or indicate consent to
sexual intercourse - it is the standard of the reasonable
*woman* we must employ" (1999, 119). Thus, for example,
in assessing the reasonableness of an alleged victim's judgment
that it would be dangerous to resist a particular sexual advance, a
jury would ask whether a reasonable *woman* in that situation
would so judge. Opponents of the reasonable woman standard contend
that it is both possible and desirable to account for common
differences between men's and women's physiologies, social
experiences, and perceptions without importing gender into the
definition of reasonableness itself. For instance, while granting that
a reasonable person standard should often yield different conclusions
for men than for women, Hubin and Haely contend that "this is
not because the reasonable person standard fails to present a single
(gender neutral) standard, but because the standard we are employing
is sensitive to features of the agent and the situation that are
correlated with gender" (1999, 133).


### 2.3 Force



In many jurisdictions, the law defines the crime of rape as comprising
two separate elements: force and lack of consent. As West observes, in
such jurisdictions



> 
> sex that is undeniably *forced* is, nevertheless, not rape if
> the victim "consented" to it; and ... sex that is
> undeniably nonconsensual is, nevertheless, not rape if there was no
> force used to obtain it. (1996, 233)
> 



West explains that, historically, rape law has seen two kinds of
forced sex as consensual: first, the sex that a man forces on his wife
(since she was thought to have "consented" permanently and
irrevocably to sex by getting married); and second, submission or
acquiescence in the face of a show of force and/or a threat of more
violence to come. Furthermore, she points out, women are often
portrayed in both pornographic and mainstream media as enjoying, and
(the assumption is) therefore consenting to, forceful and even violent
sex; such assumptions often derail rape cases, as when a defendant
claims that the encounter was simply "rough sex" that was
enjoyed by the victim. Underlying the inclusion of a nonconsent
requirement over and above the force requirement, according to West,
is the view that "women consent to forced sex all the
time--so forced sex alone can't be rape" (239). Cases
of nonconsensual but unforced sex, on the other hand, include those in
which the victim is induced to have sex through fraudulent
misrepresentation (for instance, a doctor telling her that sex with
him is necessary for her cure), and those in which she is coerced
through nonviolent means (for instance, a professor telling her that
she must have sex with him to pass the course). The tendency of the
law to see such encounters as meaningfully consensual departs
strikingly from how consent is understood in other areas; as West
observes, "fraud or coercion that vitiates consent in
*non*sexual contexts constitutes either criminal or tortious
activity" (240).



Most feminists see the dual requirement of force and nonconsent as
redundant at best and, at worst, as defining many rapes out of
existence. Feminists differ, however, as to how rape laws should
ideally be structured. Perhaps the most common view is that the force
requirement should be eliminated, and rape defined simply as
nonconsensual sex, with differing degrees of severity depending on
whether and how much force and violence are employed (Estrich 1987).
While some state statutes are now written this way, they often build
physical force into the definition of non-consent; thus in practice
they function very much like the dual requirement of force and
non-consent (Anderson 2005a, 630).



Another alternative is to eliminate the nonconsent requirement,
defining rape simply as forced sex. MacKinnon defends a variant of
this strategy, contending that "Rape should be defined as sex by
compulsion, of which physical force is one form. Lack of consent is
redundant and should not be a separate element of the crime"
(1989, 245). This approach has the advantage of focusing on what the
perpetrator did, rather than on how the victim responded (that is, on
whether her behavior constituted, or could reasonably have been seen
by the perpetrator as constituting, consent).



A third approach is to separate the two elements into two separate
crimes, one based on the use of force and the other on the lack of
consent. McGregor defends this idea, proposing that:



> 
> If either the offender engaged in sexual activity through the use of
> force or he failed to secure meaningful consent, then [he] has
> committed an offense .... Rather than requiring both conditions,
> as the current statutes do, or attempting to pack all cases into one
> or the other of the conjuncts ... this approach recognizes that
> there are at least two different offenses ... for which there are
> different conditions and different levels of seriousness. (1996, 190)
> 



Schulhofer (1998) argues, in a similar vein, that the law should
recognize two different offenses: sexual assault, which involves the
use of "physical force to compel another person to submit to an
act of sexual penetration" (283); and sexual abuse, a lesser
(though still felonious) crime, which involves sexual penetration
without the other person's affirmative and freely given consent.
Some commentators have observed that developing such a lesser offense
may aid in winning convictions, as juries are reluctant to convict
nonviolent offenders of rape. Anderson (2005a) criticizes this
approach, however, pointing out that survivors of what she calls
"all-American rape" (nonconsensual sex without extrinsic
force or violence, usually committed by an acquaintance) suffer trauma
at least as severe as do survivors of forceful rape. She contends that
"all-American rape" should retain the powerful label (and
potentially severe penalty) of rape, while rapists who employ violence
extrinsic to the rape itself should be charged with rape *and*
other offenses (such as kidnapping or aggravated assault) as
appropriate.


### 2.4 Other approaches



Recent scholarship includes some novel approaches to the legal
definition of rape. MacKinnon, for instance, has recommended that a
broadened understanding of force (as including hierarchies of power)
should be supplemented not by a nonconsent requirement, but by a
standard of "welcomeness." A consent standard, she
observes, incorporates gender hierarchy by assuming that men initiate
sexual contact which women then either accept or refuse, whereas a
welcomeness standard suggests the centrality of "choice,
mutuality, and desire" (2005, 243). She explains her approach as
follows:



> 
> The idea here is not to prohibit sexual contact between hierarchical
> unequals per se but to legally interpret sex that a hierarchical
> subordinate says was unwanted in the context of the forms of force
> that animate the hierarchy between the parties. To counter a claim
> that sex was forced by inequality, a defendant could (among other
> defenses) prove the sex was wanted--affirmatively and freely
> wanted--despite the inequality, and was not forced by the
> socially entrenched forms of power that distinguish the parties.
> (247-48)
> 



MacKinnon also recommends the passage of new, sex-equality-based civil
rights laws that sexual assault victims can use against their
attackers. Such laws, in her view, would offer survivors a kind of
dignity and control that criminal prosecutions often do not, while
attaching the "stigma of bigotry" to perpetrators
(248).



Anderson (2005b) urges the elimination of both the force requirement
and the nonconsent requirement, and the adoption in their place of
what she calls the "negotiation model." She contrasts her
approach with the two most common "reform" positions,
which she calls the No Model and the Yes Model. According to the No
Model, a sexual act is consensual unless the victim says no or resists
physically. According to the Yes Model, a sexual act is rape unless
consent is affirmatively granted (by verbal or physical behavior).
Against the No Model, Anderson points out that many victims suffer
peritraumatic paralysis and/or dissociation--that is, conditions
at the time of trauma that render them unable to protest or resist.
Furthermore, both the No and Yes models rely heavily on men's
ability to interpret women's nonverbal behavior, despite strong
evidence showing that men routinely fail in this endeavor: the No
Model, for instance, allows a man to infer consent from a
woman's silence and lack of physical resistance. Finally, both
models in practice tend to assume that a woman's willing
participation in non-penetrative sexual activity is a reliable
indicator of her consent to penetration (for instance, Anderson points
out that according to Schulhofer, an advocate of the Yes Model, a
woman's engaging in heavy sexual petting typically indicates her
affirmative willingness to have intercourse). This assumption,
Anderson emphasizes, is not only often untrue but, in the age of AIDS,
especially dangerous.



Like MacKinnon, Anderson sees a fundamental problem in the notion of
sexual consent as "a woman's passive acquiescence to male
sexual initiative" (1406). Negotiation, in contrast,
"suggests not the granting of permission for the actions of
another ... but an active consultation with someone else to come
to a mutual agreement" (1421). The negotiation model thus
requires "consultation, reciprocal communication, and the
exchange of views before a person initiates sexual penetration"
(1421). (This requirement of consultation before penetration
distinguishes Anderson's approach from Pineau's, despite
their shared emphasis on communication; in addition, Pineau's
model retains an overall consent standard whereas Anderson abandons
that standard.) Unless and until a relational context has been
established that enables partners to interpret reliably each
other's nonverbal behavior, the negotiation must be verbal. The
negotiation model is gender-neutral, requiring that any person who
initiates sexual penetration consult verbally with his or her partner
(of either gender) to come to a mutual understanding of whether both
parties want penetration to occur. Such communication, Anderson
observes, "expresses an interest in the other person's
perspective ... [and] a willingness to consider the other
person's inclinations and humanity. It expresses that the other
person matters" (1423). The negotiation model thus differs at
least in spirit from even a version of the Yes Model that requires
verbal consent, in that it emphasizes mutuality rather than a
one-sided permission-seeking.



Martin Alcoff, having emphasized that the legal system is not
always the best, and certainly not the only, arena for reaching truth
and understanding regarding rape, also suggests that we "move
away from simplistic binary categories" (for instance, rape
versus not-rape) and embrace the broader, more flexible and capacious
notion of sexual violation. "To violate," she
observes," is to infringe on someone, to transgress, and it can
also mean to rupture or break. Violations can happen with stealth,
with manipulation, with soft words and a gentle touch to a child, to
an employee, or anyone who is significantly vulnerable to the offices
of others" (2018, 12). Among the benefits of this approach, in
Alcoff's view, is to make room for the complex experiences of
survivors, who often struggle and/or evolve over time in developing
and articulating their interpretations of what was done to them. 



Legal theorist Jane Kim has argued that "rape tolerance"
in the United States--evidenced by low rates of arrest,
prosecution, and conviction of rapists at the state
level--indicates a need for new legal approaches (2012, 273). In
her view, "rape should be considered a form of slavery
prohibited by the Thirteenth Amendment of the Constitution, allowing
for the creation of a federal criminal regime to prosecute and
prioritize rape in conjunction with state regimes" (266). She
argues that the Thirteenth Amendment was intended to prohibit slavery
and involuntary servitude in all of its forms, and that neither the
brief duration of many rapes nor concerns about a "slippery
slope" warrant excluding rape from its purview. "In order
to construct and prosecute rape in a manner consistent with its
purported gravity," Kim contends, "rape must be
effectively prosecuted, prohibited, protected against, and abolished
under the Thirteenth Amendment" (267).



It bears noting that successful rape prosecutions depend not only on
how rape is legally defined but, at least equally importantly, on the
general public's willingness to believe women's testimony
(rather than seeing them as lying or confused) and to recognize
particular encounters as instances of the applicable legal definition
(that is, to see *this* behavior as force, or *this*
utterance as expressing nonconsent). Also posing a challenge to
successful prosecution is what Estrich calls the "assumption of
risk approach to culpability": the common belief that, as she
puts it, "women who put themselves in compromising positions
shouldn't complain when they are compromised" (1992, 10).
The continuing prevalence of such rape-supportive beliefs can render
even well-intentioned prosecutors unwilling to pursue legitimate
cases, given the likelihood that juries will refuse to convict.


## 3. The Wrongs and Harms of Rape



Any legal definition of 'rape' implies some correlative
idea of what is morally wrong with rape: its illegitimate use of
force, its disregard of the victim's nonconsent, and so on.
Feminist theorists have often sought to articulate a more richly
textured sense of rape's wrongness, and of its distinctive
harms, than the law alone can provide. They have thus developed a
number of interpretive frames--ideas about what rape is most
closely akin to, and/or a form of--for understanding rape's
wrongs and harms. No doubt both the wrong and the harm of rape are
complex and multifarious; these interpretive frames suggest emphases
that may be illuminating in different contexts and for different
purposes.


### 3.1 Harms to individual victims



The view most commonly identified with feminism in popular discourse
is that rape is a crime of "violence, not sex"--that
is, a form of assault whose sexual nature is irrelevant, and which is
analogous to other violent crimes. While this view has rarely been
defended by feminist philosophers, it has been prominent in some
feminist anti-rape public education and activism. (One feminist
theorist often claimed to have held this view is Susan Brownmiller
(1975); see Cahill 2001, 16-28.) Such efforts often seek to challenge
views of rape as a "crime of passion," motivated by the
perpetrator's overwhelming lust (presumably in response to the
victim's sexual attractiveness and/or provocation). Thus, in
addition to challenging victim-blaming assumptions, feminists often
emphasized rapists' non-sexual motivations, such as anger and
the desire for dominance and control; on this view, the rapist is a
violent criminal like other violent criminals, not just a guy seeking
sex a bit too vigorously. Similarly, this approach emphasizes that
rape victims are real crime victims, not vaguely titillating people
who had some overly rough sex and might just have liked it.



The limitations of the "violence, not sex" approach,
however, are fairly glaring. Rape's sexual nature is central to
understanding both its perpetrators' motivations and its effects
on victims, not to mention the crime's broader social and
ideological roots and consequences. While perpetrators differ in their
strongest occurrent motivations, it is important to ask why so many
men who wish to harm or violate women do so in a sexual manner.
Furthermore, some rapes do occur because a man wants to have sex, and
perhaps would even prefer it if his partner consented, but is prepared
to proceed without her consent. Rape's sexual character is
central from the perspective of both actual and potential victims; as
Cahill observes, "few women would agree that being raped is
essentially equivalent to being hit in the face" (2001, 3).
Furthermore, many rape survivors are damaged specifically in their
sexuality, facing difficulties in their sexual relationships in the
months and years following the rape. Finally, because many rapes do
not involve overt extrinsic violence, the "violence, not
sex" slogan may make it more difficult for people to recognize
less obviously violent experiences of sexual force as rape. In short,
rape is forced, abusive, and/or violent *sex*; recognizing
rape's sexual nature is crucial to understanding not only its
wrongs and harms, but also the cultural and political meaning of sex
in patriarchal cultures. As MacKinnon observes, "so long as we
say that [rape, sexual harassment, and pornography] are abuses of
violence, not sex, we fail to criticize what has been made of sex,
what has been done to us through sex" (1987, 86-87).



The violation of bodily and sexual autonomy is no doubt among
rape's most central harms. In their classic discussion, Frye and
Shafer (1977) employ the concept of "domain" to elaborate
on such violation. A person's domain--"the physical,
emotional, psychological, and intellectual space it lives in"
(338)--defines the range of matters over which the person has
rightful power of consent. Because a person's body is at the
very center of her domain and is the locus of the properties and
capacities that make her a person, the intentional invasion of the
body is an especially egregious attack: "to presume to wield an
effective power of consent over the personal properties and/or the
body of [a] creature ... is ipso facto to deny that there is a
person there at all" (340). Thus, rape treats the victim not as
a person but as an object, and one with a purely sexual function. Frye
and Shafer emphasize that rape's communication of this message
constitutes one significant element of its harm: "[rape] gives
[the victim] a picture of herself as a being within someone's
domain and not as a being which has domain .... Whether it is the
rapist's intention or not, being raped conveys for the woman the
message that she is a being without respect, that she is not a
person" (341-42). Hampton sounds a similar theme,
contending that through its expressive
content--"representing the rapist as master and the victim
as inferior object"--rape does an objective "moral
injury" to its victim's value (1999, 135). It is not
surprising, then, that many rape survivors describe feeling not only
worthless, but also numb, absent, or deadened. The reaction is
understandable since, as Cahill observes, "Rape, in its total
denial of the victim's agency, will, and personhood, can be
understood as a denial of intersubjectivity itself .... The self
is at once denied and ... stilled, silenced, overcome"
(2001, 132).



Some recent discussions emphasize that a full account of rape's
harm must incorporate both its denial of victims' personhood and
its intimate, sexual and bodily nature. According to Cahill,
"rape must be understood fundamentally ... as an affront to
the embodied subject .... a sexually specific act that destroys
(if only temporarily) the intersubjective, embodied agency and
therefore personhood of a woman" (2001, 13). Anderson, seeking
to define rape's harm based on the "lived
experience" of those who go through it, cites
"dehumanization, objectification, and domination" as
prominent in the accounts of both rapists and rape victims (2005,
641). Rape, she concludes, is best understood not only as the denial
of sexual autonomy, but as "sexually invasive
dehumanization" (643).



Linda Martin Alcoff, too, emphasizes rape's specifically
sexual harm, arguing in particular that sexual violations can be both
identified and criticized on the basis of their damage to
victims' sexual subjectivity. Alcoff contends that "As a
concept, sexual subjectivity provides an alternative to the singular
focus on the violation of our consent, desire, the capacity for
pleasure, or will . . . our central concern with sexual violations
should be their inhibiting and transformative effects on sexual
subjectivity or our self-making capacities" (2018, 111). Sexual
subjectivity, in her view, includes the capacity for sexual agency,
but more broadly amounts to "our concernful making relationship
to ourselves as sexual subjects" (121). Survivors of sexual
violations, Alcoff contends, suffer damage to their ability to develop
and live out, in a caring, reflective, and flexible way, their own
sexual selfhood. "What is violated," she writes, "is
not a substantive set of normative or normal desires, but the
practical activity of caring for the self. Trauma atrophies
possibilities" (145).



The humiliation and shame often experienced by rape victims are
predictable results of experiencing total subjugation and the intimate
loss of control of one's body. These reactions--not to
mention victims' feelings of contamination, of having been
defiled or desecrated--are often exacerbated by cultural
judgments of raped women as dirty and impure, or as "damaged
goods." In some cultures, these ideas are so powerful that a
woman who is raped (or who has consensual illicit sex) is thought to
bring shame on her entire family; such women sometimes become the
victims of so-called "honor killings" at the hands of male
relatives (Banerjee 2003, Baxi et al. 2006, Ruggi 1998).



A distinctive set of harms enters the picture when, as is increasingly
common, women and girls are violated while unconscious, often with
pictures or videos taken and circulated. As Kelly Oliver points out,
"lack of consent is valorized within popular culture to the
point that sexual assault has become a spectator sport and creepshot
entertainment on social media ... sex with unconscious girls,
especially accompanied by photographs as trophies, has become a goal
of some boys and men" (2016, 59-60). In such cases, Oliver
observes, "The trauma of victimization not only becomes public
but also infinitely repeatable. It can go viral. It doesn't go
away" (91). Cressida Heyes (2016) provides a phenomenological
account of the devastating harms of raping an unconscious victim.
Raping someone who is unconscious, Heyes contends,



> 
> exploits and reinforces a victim's lack of agency and exposes
> her body in ways that make it especially difficult for her to
> reconstitute herself as a subject. It damages both her ability to
> engage with the world in four dimensions (through a temporally
> persisting body schema) and her ability to retreat from it into
> anonymity ... Sexual assault while unconscious can make the
> restful anonymity of sleep impossible, leaving only the violent
> exposure of a two-dimensional life. (2016, 365)
> 



The assumption that such rapes are less harmful than the rapes of
conscious victims--since the rape itself is not directly
experienced--is therefore badly mistaken, Heyes argues. The victim of
unconscious rape, she points out, "struggles to feel safe
lapsing into the one form of anonymity that is biologically and
existentially necessary for human life, yet ultimately she will have
no choice but to revisit this place over and over ... no one can
avoid going to sleep for very long" (2016, 379).



Many rapes lead to additional harms beyond those intrinsic to the rape
itself. Some rapes cause pregnancy or sexually transmitted diseases
(including HIV infection), and some rapists physically injure their
victims. Victims who do not reveal their rapes to others, whether due
to shame or to the expectation that they will not be believed,
experience profound isolation and lack of support; and indeed, many
who do report their rapes are disbelieved or blamed by friends,
family, and/or police. Even those survivors who are believed too often
face, as Alcoff points out, a kind of "preemptive
disauthorization or assumption that [they] are incapable of measured
and thoughtful analysis" (2018, 50). Due to both low reporting
levels and low conviction rates, relatively few victims see their
rapists punished; many of those raped by relatives, co-workers,
friends, or other ongoing acquaintances must then face continuing
interaction with the rapist, while those raped by strangers often fear
that the rapist will find and re-victimize them.



With or without these additional harms (but especially with them),
rape constitutes severe trauma. Undergoing trauma shatters the
victim's most basic assumptions about herself and her safety in
the world. According to Brison, who survived a violent rape and
attempted murder, trauma



> 
> introduces a "surd"--a nonsensical entry--into
> the series of events in one's life, making it seem impossible to
> carry on with the series ... . Not only is it now impossible to
> carry on with the series, but whatever sense had been made of it in
> the past has been destroyed. The result is an uneasy paralysis. *I
> can't go, I can't stay*. All that is left is the
> present, but one that has no meaning, or has, at most, only the
> shifting sense of a floating indexical, the dot of a "now"
> that would go for a walk, if only it knew where to go. (2002,
> 103-104)
> 



With its profound effects on social connection, cognition, memory, and
emotion, trauma disrupts the continuity of the self. It is strikingly
common for a trauma survivor to feel that she is not the same person
she was prior to the trauma, and even that at least a part of her has
died; as Brison puts it, "I felt as if I was experiencing things
posthumously ... as though I'd somehow outlived
myself" (8-9). To reconstitute the self in a new form, the
survivor must construct a meaningful narrative that incorporates the
trauma, but many survivors face obstacles in this endeavor such as
disordered cognition, memory gaps, feelings of despair and futility,
and the lack of an audience willing to hear, believe, and understand
their story. Such isolation is exacerbated when the trauma was humanly
inflicted (as with rape), since such assaults, as Brison puts it,
"[sever] the sustaining connection between the self and the rest
of humanity" (40). Brison's own account emphasizes the
"extent to which the self is created and sustained by others
and, thus, is able to be destroyed by them" (62); this
relational element is central both to trauma itself and to any
possible recovery. Because "violent intrusions by others
... severely impair our ability to be connected to humanity in
ways we value" (61), recovery requires slowly repairing
connections--both to others and to damaged parts of
oneself--and rebuilding a sense of trust (again, of both oneself
and others).



For many women, rape is not a one-time event; rather sexual violence
and exploitation are, for at least some period of time, routine
conditions of their lives. Such women experience female sexual
slavery, defined by Barry as any situation in which



> 
> women or girls cannot change the immediate conditions of their
> existence; where regardless of how they got into those conditions they
> cannot get out; and where they are subject to sexual violence and
> exploitation. (1984, 40)
> 



As Barry observes, such situations include battering relationships,
most prostitution, and the sexual abuse of girl children, all of which
are common around the world. It is thus important to consider the
distinctive effects of such repeated and routine sexual trauma. Herman
has recommended the adoption of a new diagnosis, complex
post-traumatic stress disorder, to describe accurately the
psychological impact of "prolonged, repeated trauma"
(1997, 119). (This diagnosis is intended to encompass various forms of
humanly inflicted trauma, not only sexual trauma.) The damage of such
prolonged trauma to a victim's personality may be so severe as
to constitute what Frye has called mayhem: a psychic
"maiming" in which the exploiter instills in his victim
such a grossly distorted perspective on herself, her function, and her
worth that she becomes (whether temporarily or permanently) unable to
identify or pursue her own interests, assert her rights, or defend
herself against further aggression (1983, 70).


### 3.2 Harms to women as a group



Rape is unquestionably a gendered crime: 91% of rape victims are
female, while almost 99% of perpetrators are male (Greenfield 1997).
In light both of these numbers and of rape's broader ideological
dynamics and social consequences, feminists have long contended that
rape harms not only its individual victims, but also women as a class.
Brison, for instance, calls rape "gender-motivated violence
against women, which is perpetrated against women collectively, albeit
not all at once and in the same place" (2002, 98). Understanding
how rape harms women as a group requires analyzing it not only as an
individual act but also as an institution--that is, a structured
social practice with distinct positions and roles, and with (explicit
or implicit) rules that define who may (or must) do what under what
circumstances (Card 1991). Feminists have highlighted the ways in
which the institution of rape reinforces the group-based subordination
of women to men: for instance, by making women fearful, and by
enforcing patriarchal dictates both about proper female behavior and
about the conditions of male sexual entitlement to women's
bodies. As Burgess-Jackson puts it, "Rape--the act and the
practice--subjugates an entire class of individuals (women) to
another (men) .... every woman, qua woman, is wronged by
it" (2000, 289).



Feminists have long claimed that, in patriarchal cultures, rape is not
anomalous but paradigmatic--that it enacts and reinforces, rather
than contradicting, widely shared cultural views about gender and
sexuality. As Dworkin puts it, "rape is not committed by
psychopaths or deviants from our social norms--rape is committed
by *exemplars* of our social norms .... Rape is no excess,
no aberration, no accident, no mistake--it embodies sexuality as
the culture defines it" (1976, 45-46). A core dynamic of
patriarchal sexuality, on this view, is the normalizing and
sexualizing of male (or masculine) control and dominance over females
(or the feminine). This dynamic finds expression in a number of
beliefs about what is natural, acceptable, and even desirable in
male-female sexual interaction: that the male will be persistent and
aggressive, the female often reluctant and passive; that the male is
invulnerable, powerful, hard, and commanding, and that women desire
such behavior from men; that "real men" are able to get
sexual access to women when, where, and how they want it; that sexual
intercourse is an act of male conquest; that women are men's
sexual objects or possessions; and that men "need" and are
entitled to sex.



One study of undetected, self-reported acquaintance rapists found that
these individuals' propensity to rape was significantly related
not only to their acceptance of rape myths and of traditional ideas
about male and female sexuality, but also to their belief that male
sexual aggression is normal (Hinck and Thomas 1999, 816). Such beliefs
have repeatedly been shown to play a role not only in men's
self-reported likelihood of committing rape, but also in
people's tendency to define rape more restrictively, and to
attribute responsibility and blame to rape victims (1999, 816). (The
influence of rape myths on people's definitions of rape explains
why most men who report engaging in "sexually assaultive,
abusive, or coercive behavior in order to procure sexual
intercourse" (1999, 816) do not define their own behavior as
rape.) Feminists have coined the term 'rape culture' to
describe the pervasiveness and acceptability of rape-supportive
messages in media and popular discourse. Some have further contended
that many rapes, being at least partially motivated by group-based
animus as expressed in rape-supportive beliefs, should be categorized
as hate crimes (Wellman 2006).



On this view, rape is a political practice by which spurious beliefs
about gender and sexuality are expressed, inscribed, and enforced via
the violation and control of women's bodies. Hampton thus claims
that "rape as it occurs in our society ... is a moral
injury to all women ... insofar as it is part of a pattern of
response of many men toward many women that aims to establish their
mastery *qua male* over a woman *qua female* ....
Rape confirms that women are 'for' men: to be used,
dominated, treated as objects" (1999, 135). This underlying
gender ideology helps to explain why, when men and boys are raped
(almost always by other males), they are often seen as having been
feminized, treated like women and thus rendered shamefully
woman-like.



Many feminists have emphasized the role of rape in controlling
women's behavior through fear. Dworkin contends that, due to the
threat of rape, "all women live in constant jeopardy, in a
virtual state of siege" (1976, 37); and several feminists have
drawn analogies between rape and lynching as forms of terrorizing,
group-based social control (Burgess-Jackson 2000, 286-88). Card argues
that rape is a terrorist institution, one which--despite its
admitted differences from acts more normally labeled terrorism, such
as bombing and hijacking--advances its political purpose, the
continued subordination of women, by terrorizing a target population
(1991). Like all terrorism, she contends, rape has two targets: the
direct victims, who are seen as expendable, and the broader population
to whom a message is sent, and who can then be manipulated by fear
into complying with demands they would otherwise reject. In response
to the threat of rape, women scrutinize and restrict their own
choices--what they wear, where they go and with whom, whether
they drink, what "messages" they may be inadvertently
sending men, and so on--to ensure that they are following the
unwritten rules that govern female behavior and that (supposedly)
distinguish the bad girls who get raped from the good girls who do
not. Even women who, because of their conformity to these rules, do
not feel afraid of being raped have nonetheless, Card points out, been
terrorized into compliance.



A central element of rape as a terrorist institution, Card claims, is
a protection racket in which men, as the group both creating the
danger and proposing to deliver women from it, dole out
protection--sometimes temporary, sometimes permanent, often
illusory--in exchange for women's service, loyalty, and
compliance. In this system, "good" men protect virtuous
and deserving women from "bad" men, and part of what
defines a woman as deserving protection is her conformity to rules of
patriarchal femininity. Women who are not offered protection, or who
decline it when offered, are then frequently blamed for being raped.
Furthermore, as Card points out, the rules of the institution often
grant "protectors"--whether husbands, boyfriends, or
pimps--sexual access to the woman or women whom they protect, so
that nothing they do to those women is taken to count as rape. The
institution thus requires a woman to give up her sexual autonomy in
relation to one man, in order to gain his (conditional and unreliable)
"protection" from other men.



The threat of rape, with its false promise that by being
"good" we can avoid disaster, plays an important role in
training women in the requirements of femininity. Describing a
"feminine bodily comportment that is marked by fear,"
Cahill observes that the female body well-trained in femininity
"is that of a pre-victim" (2001, 157). The feminine body
is marked by hesitancy, relative weakness, delicacy, and
restraint--qualities that in fact render women more vulnerable to
violence--and yet the woman or girl is taught to view her sexual
body as dangerously provocative because inherently
"rapable" (159). Hence her duty to control, conceal, and
monitor her body and its movements, so as not to bring disaster upon
herself. "The socially produced feminine body," Cahill
claims, "is the body of the *guilty* pre-victim ....
she was somewhere she should not have been, moving her body in ways
she should not have, carrying on in a manner so free and easy as to
convey an utter abandonment of her responsibilities of self-protection
and self-surveillance" (160). By molding women both to
femininity and to self-blame, the threat of rape thus systematically
undermines women's capacity to resist not only rape itself, but
various other elements of their oppression as well. The threat is so
pervasive in the cultural environment that, according to Brison, girls
"enter womanhood freighted with postmemories of sexual
violence" (2002,
 87)[1],
 and years of peremptory warnings and cautionary tales lead many
victims to experience rape as "a threat fulfilled" (Cahill
2001, 164).



Many feminists contend that even as the institution of rape
systematically disadvantages women, it benefits men as a class by
underwriting beliefs about the naturalness of male dominance, defining
women of certain kinds or in certain circumstances as "fair
game," rendering women dependent on and thus beholden to men for
protection, and giving men a competitive advantage by restricting
women's freedom of action and movement. May and Strikwerda
contend that "just as the benefit to men distributes throughout
the male population in a given society, so the responsibility (for
rape) should distribute as well" (1994, 148); in their view, men
as a group bear collective responsibility for rape. Rape's role
in increasing the burden of fear in women's and girls'
lives leads Burgess-Jackson to highlight it as an issue of
distributive justice (1996, 181-205). He contends that the
state's obligation to advance justice requires that it take
steps to redistribute fear so that women no longer bear it as an
unfair and disproportionate burden; furthermore, he claims, since men
as a class are overwhelmingly the cause of women's fear, most or
all of the costs of such redistribution should be borne by men.


### 3.3 Rape and racism



Rape is a tool not only of patriarchy, but also of racism,
colonialism, nationalism, and other pernicious hierarchies. These and
other power relationships in turn make women and girls even more
vulnerable to rape. In virtually any situation where women and girls
belonging to especially desperate or powerless populations are at the
mercy of men in authority--from female inmates and girls in
foster care, to undocumented immigrants, to refugees dependent on U.N.
peacekeepers and/or humanitarian aid workers for survival--some
of those men use their authority to force or extort sexual access.



In the United States, the racial dynamics of rape are shaped by a long
history of white men raping their African-American female slaves.
Because the women were chattel property, the owners (and often
overseers) could and did use them sexually at will, with complete
legal and social impunity. Because children born of slave mothers were
slaves, regardless of their paternity, many slave owners benefited
from rape by producing more slaves for themselves. Roberts emphasizes,
however, that



> 
> the rape of slave women by their masters was primarily a weapon of
> terror that reinforced whites' domination over their human
> property. Rape was an act of physical violence designed to stifle
> Black women's will to resist and to remind them of their servile
> status ... . Whites' sexual exploitation of their slaves,
> therefore, should not be viewed simply as either a method of
> slave-breeding or the fulfillment of slaveholders' sexual urges.
> (1997, 29-30)
> 



Slaves were frequently forced into undesired sexual liaisons with each
other as well, based on the whims or the breeding plans of their
owners. Ultimately, as Collins observes, "Black women as a class
emerged from slavery as collective rape victims" (2005, 223),
and the rape of black women, like the lynching of black men, was a
centerpiece of Klan activity post-Emancipation. Collins points out,
however, that unlike lynching, black women's sexual abuse by
white men during and after slavery did not become a central or
universally understood icon of American racism. The legacy of slavery
and its attendant ideologies has meant that, both legally and
socially, "for most of American history the crime of rape of a
Black woman did not exist" (Roberts 1997, 31).



Black women's unrapeability was not only written into law, but
reinforced by a racial ideology that defined them as lascivious and
promiscuous by nature. This same racial ideology stereotyped black men
as savagely oversexed and thus sexually dangerous, especially to white
women. The post-Civil War terror campaign of lynching, which continued
through the 1930's, was frequently claimed to be punishment for
black men who had raped white women, although in fact only a minority
of lynching victims were even accused of having done any such thing
(Hall 1983, 334; Davis 1981, 189), and of those, many had in fact had
consensual relationships with white women (Hall 1983, 340). The racist
association of rape with black men rendered rape by white men
comparatively invisible, thus making white men as a group
unaccountable for rape (Davis 1981, 199), a dynamic that continued
well into the 20th century (Dorr 2008).



These destructive racial stereotypes remain powerful today, exerting
influence on people's judgments of whether a rape has occurred,
how serious an offense it is, and who is to blame (Foley et al. 1995;
Donovan and Williams 2002; George and Martinez 2002). Popular culture
plays an important role in conveying and legitimizing these
stereotypes. For instance, the image of sexually savage and
animalistic black masculinity is a central trope of the popular
"interracial" genre of pornography, marketed to white men,
in which black men are often depicted as damaging white women's
bodies with their unusually large penises (Dines 1998, 2006). As
Collins observes, "movies, films, music videos, and other mass
media spectacles that depict Black men as violent and that punish them
for it have replaced the historical spectacles provided by live,
public lynchings" (2005, 242).



The stereotype of black women as sexually deviant and aggressive
"Jezebels" finds one contemporary reflection in the
"hoochie" image, which is increasingly prominent in black
as well as white cultural and media venues (Collins 2000,
81-84). One study, designed in part to measure the influence of
the Jezebel stereotype on young black women's perceptions of
their own rapes, found that the "stereotype of Black women as
sexually loose appeared to be internalized by Black participants and
identified as an important reason why they were raped" (Neville
et al. 2004, 91). Another researcher, having found that the
African-American women in her study were less likely than white women
to have disclosed their rapes (Wyatt 1992, 86), attributes this
difference in part to the fact that "African American women
.... do not anticipate that they will be protected by traditional
authorities and institutions" (88). Meanwhile, both the
stereotypes of black women and their structural vulnerabilities
contribute to a situation in which, for too many, sexual abuse is a
routine condition of life: "being routinely disbelieved by those
who control the definitions of violence, encountering mass media
representations that depict Black women as 'bitches,'
'hoes,' and other controlling images, and/or experiencing
daily assaults such as having their breasts and buttocks fondled by
friends and perfect strangers ... may become so routine that
African American women cannot perceive their own pain" (Collins
2005, 229).



Black women who have been raped by black men are sometimes silenced,
either in order to maintain their own hard-won image as
"respectable" or to avoid further tarnishing the public
image of black manhood. They may be penalized or shunned by their
families and communities for speaking out, and thus cut off from
important sources of support (Collins 2005, 226-27).



Racist ideologies about rape are also prominent in the history of
colonialism and genocide against Native Americans. Ideas about Native
men as savage rapists, Native women as downtrodden and raped squaws,
and white men as heroic saviors of both white and Native women were
essential to the "colonial imagination" that explained and
justified the taking of Native lands (Smith 2005, 7-33). These
ideas were conveyed in widely read captivity narratives,
stories--usually apocryphal, and often written by white
men--of the abduction and brutal treatment of a white woman by
the "savages" (Smith 2005, 21-22; Faludi 2007,
200-279). The message was that white women desperately needed
white men's protection, not only in the usual form of
restrictions on the women's behavior and mobility, but also by
the men's efforts to control and kill off dangerous natives. As
for supposedly downtrodden Native women, white men proposed to deliver
them from their oppression by civilizing them, assimilating them to
more enlightened European values and culture. In short, the ideology
held that "Native women can only be free while under the
dominion of white men, and both Native and white women have to be
protected from Indian men, rather than from white men" (Smith,
23). In fact, the reality was quite the contrary. Smith argues that
rape was a key method of forcibly instituting patriarchal values in
what had been relatively egalitarian Native cultures:



> 
> In order to colonize a people whose society was not hierarchical,
> colonizers must first naturalize hierarchy through instituting
> patriarchy. Patriarchal gender violence is the process by which
> colonizers inscribe hierarchy and domination on the bodies of the
> colonized. (23)
> 



History bears out Smith's claim, as white men routinely raped
and brutalized Native people--first as prisoners and in massacres
(Smith 2005, 7-23), and later in epidemic levels of sexual abuse
of Native children in white-run boarding schools (Smith 2006).


### 3.4 War rape and genocidal rape



Rape is a common, indeed arguably universal, form of abuse in war. It
takes many forms, including the mass rape of female civilians as
recreation and/or as a prize for military victory, the mass rape of
female civilians as a strategy or weapon of war, and the enslavement
of women and girls to provide sexual service for soldiers and
officers. The latter is frequently practiced both by official armies
(as in the enslavement of mostly Korean and Chinese women and girls by
Japanese forces during World War II) and by rebel militias (as in the
abduction of women and girls as "bush wives" for rebels in
Sierra Leone). Additionally, as more women enter military forces, the
rape of military women by their own male colleagues is an increasingly
reported abuse (Jeffreys 2007).



Seifert criticizes the common view of rape as simply a regrettable
byproduct of wartime social breakdown and lack of military discipline
(as well as of naturally aggressive male sexuality), contending that,
in fact, rape is a routine element of military strategy, aimed at
undermining the will, morale, cohesion, and self-conception of the
enemy population. She observes that, during wartime,



> 
> the women are those who hold the families and communities together.
> Their physical and emotional destruction aims at destroying social and
> cultural stability .... in many cultures [the female body]
> embodies the nation as a whole .... The rape of women of a
> community, culture, or nation can be regarded ... as a symbolic
> rape of the body of that community. (1996, 39)
> 



It is thus not surprising that rape in war often involves heightened
sadism, as well as additional abuses such as forcing men to watch the
rape of their wives or daughters and forcing women to engage in sex
with their own sons, brothers, or other family members. In these and
other cases, according to MacKinnon, the rape of female civilians is
often "a humiliation rite for the men on the other side who
cannot (in masculinity's terms) 'protect' their
women. Many of these acts make women's bodies into a medium of
men's expression, the means through which one group of men says
what it wants to say to another" (2006, 223).



Because rape in war frequently seeks to undermine and destroy bonds of
family, community, and culture, there are important points of
connection between rape in war and genocidal rape (Nenadic 2011).
Genocide is the attempt to destroy a racial, ethnic, religious, or
national group as such, in whole or in part, by committing any of a
number of acts against the group's members; the acts include not
only killing, but also causing serious bodily or mental harm, creating
conditions of life intended to destroy the group physically, and
imposing restrictions intended to prevent births within the group.
When such acts are committed with genocidal intent, the victim is not
only the individual targeted, but the group itself. As Sarah Clark
Miller observes, rape is an extraordinarily effective genocidal
strategy, since it "corrupts women's roles as caretakers
of relationships, conveyors of cultural practices, and sustainers of
meaning ... . In these ways, genocidal rapists twist the way in
which women are pivotal to the life of a community, rendering them
pivotal to its destruction" (Miller 2009, 513-514).



Genocidal rape has been recognized and condemned by both the
International Criminal Tribunal for Rwanda (ICTR) and the
International Criminal Tribunal for the Former Yugoslavia (ICTY)
(Askin 2003, Nenadic 2011). In both cases, rape was employed
systematically against the women of a certain group, as part of an
organized campaign to destroy that group. In Rwanda, the
*interahamwe* raped hundreds of thousands of women and girls
belonging to the Tutsi ethnic group, as part of an effort to
exterminate the Tutsi people entirely. MacKinnon describes the
genocidal rape of Muslim and Croatian women in Bosnia-Herzegovina
as



> 
> ethnic rape as an official policy of war in a genocidal campaign for
> political control .... It is specifically rape under orders
> .... It is also rape unto death, rape as massacre, rape to kill
> and to make the victims wish they were dead. It is rape as an
> instrument of forced exile, rape to make you leave your home and never
> want to go back .... It is rape to drive a wedge through a
> community, to shatter a society, to destroy a people. (2006, 187)
> 



The Serbian mass rape campaign was distinguished not only by its
extraordinary brutality and notorious "rape camps," but
also by the systematic forced impregnation of Muslim and Croatian
women and girls. The aim was to claim and colonize the women's
bodies reproductively as well as sexually, while increasing the
population of children identified as Serb: "Croatian and Muslim
women [were] being raped, and then denied abortions, to help make a
Serbian state by making what the perpetrators imagine[d] as Serb
babies" (MacKinnon 2006, 188). Goodhart points out that in such
forced impregnation, the soldiers' (and their commanders')
hope is to "create a baby (a son) who will infiltrate,
undermine, or destroy the mother's group" (2007, 309). The
resulting children are in fact seen by the maternal community as
"children of the enemy ... a sort of nascent fifth column
within an already victimized community" (310) and are thus often
stigmatized, mistreated, or abandoned. Goodhart argues that the
rapist-fathers have violated the rights not only of the women they
rape, but also of the children thereby produced. The rapists are
guilty of wrongful procreation, a "deliberate, malicious, and
sadistic" use of procreative power with the intent of creating a
child who is unlikely to be able to enjoy his or her human rights
(317-18).



Some have puzzled over how war rape aimed at enforced pregnancy and
birth can be genocidal, since it aims to produce rather than prevent
births within the targeted population. In the case of mass rapes in
Bosnia, some Serb perpetrators may have believed they were producing
"little Chetniks [Serbs]." But Claudia Card points out
that such a belief, even if sincerely held, does not provide good
grounds for regarding these rapes as genocidal, since "in terms
of biological parentage, the child will be as much non-Serb as Serb,
and the child's culture will almost certainly not be
Serbian" (2008, 184). Thus, she seeks to explain the genocidal
nature of rape aimed at enforced pregnancy without appealing to
perpetrators' beliefs about the ethnic identity of any resulting
children. A better explanation, in her view, emphasizes that the
Serbian campaign of forced impregnation "imposed a social death
on its victims ... it turned them into living (and gestating)
corpses. ... Whether the perpetrators thought they were producing
little Serbs is irrelevant. What counts is the attack on the social
meanings of the lives of the women they tortured" (185). Card
also develops and expands Beverly Allen's proposal (1996) that
military rape aimed at enforced pregnancy employs sperm as a weapon of
biological warfare. Such attacks meet the criteria for biological
warfare found in international documents, she points out, since



> 
> a product of a living organism (the rapist) is used to attack a
> biological system (the reproductive system) in members of the enemy
> population. Although this attack need not produce illness, it is
> designed to produce social chaos ... . Sperm so used becomes a
> social and psychological toxin, poisoning the futures of victims and
> their communities by producing children who, if they survive, will
> remind whoever raised them of their traumatic origins in torture.
> ... Unlike bacteria and viruses, sperm is easily containable,
> storable, preservable, and deliverable by means of men's bodies.
> (187)
> 



Schott takes a different approach to explaining the genocidal nature
of military rape aimed at enforced pregnancy, drawing centrally on
Hannah Arendt's concept of natality. War rape aimed at forced
impregnation, Schott observes, "[transforms] birth into a weapon
of death. This is so for women who are raped, who lose a sense of
being at home in their own bodies and of having a future, and it is so
for the children born of forced maternity, who may suffer expulsion
from the mother's community" (2011, 14). Thus such rape
undermines natality, or the capacity for new beginnings, which Arendt
regarded as fundamental to human political life. Thus, Schott
contends, "war rape can be understood not only as a tool for the
unmaking of the social and cultural world, but also a tool for the
unmaking of the political world" (2009, 86).



Rape is used as an instrument of genocide because it is extremely
effective in doing what genocides do: destroying not only individual
group members, but "that aspect of the group whole that is more
than the sum of its individual parts ... the substance and glue
of community that lives on when individual members die"
(MacKinnon 2006, 225). This is especially true when the rapes leave
children motherless, the victims with AIDS, other diseases,
infertility, fistulas, and/or other internal injuries, and families
broken as victims are abandoned and shunned by their husbands or other
relatives. Even absent these additional harms, however, sexual assault
may be especially well suited to creating a kind of self-annihilating
shame in its victims, a shame that can focus on one's group
identity. MacKinnon points out that



> 
> sexual atrocities can reasonably produce revulsion to the identity
> that marked the person for the intimate violation, making the raped
> want to abandon who they are forever. When the shared identity for
> which one is raped is ruined, shattered in oneself and relationally
> between oneself and others, the group quality of the group so defined
> is destroyed. (229)
> 



Smith underlines this point, and its special applicability to
genocidal contexts, observing that "in my experience as a rape
crisis counselor, every Native survivor I ever counseled said to me at
one point, 'I wish I was no longer Indian'" (2005,
8).



In February 2001, the ICTY found three Serbian soldiers guilty of rape
as a crime against humanity. Crimes against humanity are certain
extraordinarily inhumane acts (including murder, torture, enslavement,
and deportation) when those acts are systematically committed against
civilian populations in the course of armed conflict. The ICTY
judgment marked international humanitarian law's first official
recognition of rape as a crime against humanity. According to
Campbell,



> 
> the axiological foundation of the crime against humanity ... lies
> in a conception of a fundamental trauma to a social body, which
> consists of the denial of the humanity of others. This model of rape
> as a crime against humanity therefore involves not only a physical and
> psychic trauma to the subject but also a symbolic trauma to
> "humanity." (2003, 510)
> 



The ICTY verdict thus conveyed a judgment that the Serbian
perpetrators of mass rape, in addition to violating their individual
victims and damaging the cultural and religious groups to which those
victims belonged, also insulted and injured humanity as such. Debra
Bergoffen (2012) points out that, in addition, the ICTY verdict
created a new human right to sexual self-determination--a right
grounded neither in the agency of an autonomous and inviolable subject
(implicitly gendered male) nor in an assumed feminine weakness needing
male protection, but rather in the dignity of a humanly shared
vulnerability.


## 4. Conclusion



Feminist theorizing about rape draws on a rich tradition of feminist
scholarship in many disciplines, as well as on women's insights
into their own rape experiences and on the knowledge gained through
decades of feminist anti-violence activism. As such theorizing
continues to develop--growing both more radical in its challenges
to patriarchal social and sexual assumptions, and more global and
 intersectional[2]
 in its analysis--it constitutes an essential support for
feminist movements against sexual violence.