Bailey (2018) Sex in A Masculinities World - Gender, Undesired Sex and Rape

SEX IN A MASCULINITIES WORLD: GENDER, UNDESIRED SEX, AND RAPE
Kimberly D. Bailey
ABSTRACT: This Article examines gender, rape, and consensual, but undesired, sex. Drawing
from scholars from both feminist and masculinities literature, it argues that rape is not just a
product of women’s subordinated relationship to men; it is also a product of men’s relationships
with each other. Specifically, rape can be the result of an unstable masculine identity. Violence,
including rape, is a toxic way that some men cope with this instability. Furthermore, since not all
men can be at the top of the masculine hierarchy, some men are ultimately the victims, not the
perpetrators of rape. Understanding this dynamic is important because it helps explain why men
can be and are raped. Furthermore, it provides one explanation for why acquaintance rape still
persists in the current era of hookups. Hookup culture, which purports to provide women with
the same sexual freedom and autonomy that men possess, still perpetuates toxic masculinity
norms. Furthermore, instead of fully challenging traditional feminine norms, hookup culture
forces women to operate under a new set of complicated and conflicting norms. Despite the
many legal rape reforms that feminists have successfully obtained in the past couple of decades,
young women still end up having a lot of undesired sex and even experiencing rape. For these
reasons, this Article concludes that rape reform must go beyond the law. There should be more
of a focus on dismantling the toxic aspects of masculine culture. Evidence suggests that such
steps are already being taken through grassroots, social media, and institutional efforts. These
efforts might help lessen the amount of rape and undesired sex that both men and women
experience, regardless of any limitations the law has or should have in regulating sex.

Associate Professor of Law and Norman and Edna Freehling Scholar, Chicago-Kent College of
Law. B.A., Indiana University; J.D., The University of Michigan Law School. I would like to
thank Katharine K. Baker, Felice Batlan, I. Bennett Capers, Aya Gruber, Clare Huntington, Njeri
Mathis Rutledge, Deborah Tuerkheimer, and participants in the 2015 Lutie Lytle Conference at
Vanderbilt Law School for your very helpful comments on various versions of this draft.
Electronic copy available at: https://ssrn.com/abstract=3180873

TABLE OF CONTENTS
INTRODUCTION ............................................................................. 3
II. RAPE: A FEMINIST PERSPECTIVE ............................................... 11
III. RAPE: A MASCULINITIES PERSPECTIVE ..................................... 26
IV. IT’S COMPLICATED: THE THIN LINE BETWEEN THE MASCULINE AND THE FEMININE...40
V. POSSIBILITIES FOR CHANGE . ERROR! BOOKMARK NOT DEFINED.
CONCLUSION ............................................................................... 81
Electronic copy available at: https://ssrn.com/abstract=3180873

INTRODUCTION
On August 11, 2012, a sixteen-year-old girl was sexually assaulted over a period of six
hours by two Steubenville High School football players, Trent Mays and Ma’lik Richmond, both
also sixteen years old.1 The young girl was drunk to the point of unconsciousness, and the two
boys dragged her from party to party and assaulted her.2 Because the victim was unconscious for
much of the evening, not all of the details from that night are clear.3 A photograph taken by a
partygoer shows the victim unconscious with two young men holding her by the feet and ankles.4
One witness alleged that at one point during the evening, he saw Mays in the back of a car with
the victim.5 The witness claimed that Mays “flash[ed] the girl’s breasts and penetrate[d] her with
his fingers . . . .”6 Other witnesses claimed that, at one of the parties, Mays tried to coerce the
victim to engage in oral sex, but she was unresponsive.7 Another witness claimed that at another
point in the evening, Richmond penetrated the victim with his fingers.8 The victim also was
possibly urinated upon.9 Even more disturbing, these incidents were documented by Mays,
1
Juliet Macur & Nate Schweber, Rape Case Unfolds on Web and Splits City, N.Y. TIMES (Dec.
16, 2012), http://www.nytimes.com/2012/12/17/sports/high-school-football-rape-case-unfolds-
online-and-divides-steubenville-ohio.html.
2
Id.
3
Id.
4
Id.
5
Id.
6
Id.
7
Id.
8
Id.
9
Id.
3
Richmond, and fellow partygoers via various social media outlets.10 Despite real-time
recordings, no one came to help the young girl.11
In one particularly disturbing video, a group of young men laughed about one of the
sexual assaults while it was apparently happening.12 One boy, a recent graduate of Steubenville
High, was the focus of the video. He repeatedly laughed about the young girl being “dead.”13
Audio of some boys heard off-camera reveals that some thought that they should help the girl,
but the main boy laughed at this suggestion; he thought it ridiculous to help someone who is
“dead.”14 He then proceeded to compare the victim to other people who have been victims of
violent deaths.15 Among his comments he stated, “She’s deader than Trayvon Martin” and “she’s
deader than O. J.’s wife.”16
Bubbling with laughter, he remarked, “her puss is about as dry as the sun right now.”17
He and a friend then riffed into a “how dry is it?” routine.18 The young man then joked that the
10
Id.
11
Id. One football player claimed that no one stopped the incident because they did not view
what was happening as “forceful.” Id. Another player said that he did try to tell Mays he should
stop and wait until the young girl woke up before he did the things he was doing. He warned
Mays that he did not want to do anything he might regret. The athlete claimed that he took
pictures so that the victim could know what had happened to her, but he ended up deleting the
photographs. Id.
12
Meredith Bennett-Smith, Steubenville High School Students Joke About Rape in Video Leaked
by Anonymous, HUFFINGTON POST, (Jan. 23, 2014),
http://www.huffingtonpost.com/2013/01/02/steubenville-high-school-joke-rape-targeted-
anonymous-video_n_2398479.html.
13
Id.
14
Don Carpenter, Leaked Steubenville Big Red Rape Video, YOUTUBE (Jan. 2, 2013),
https://youtube.com/watch?v=W1oahqCzwcY&t=270s. Disclaimer: This video contains
descriptions of rape and offensive language beyond what is in Article.
15
Id.
16
Id.
17
Id.
18
Id. Someone off camera asked, “How dry is it?” The young man joked, “So dry that if you
tried to take a sip of it, you’d die.” The boys then burst into laughter. Id.
4
girl had been “raped [] quicker than Mike Tyson raped that one girl.”19 In addition, he tweeted,
“Song of the Night is definitely Rape Me by Nirvana”20 and “Some people deserve to be peed
on[.]”21 He also joked that the young girl might have consented to the sexual acts performed
upon her, and indeed the acts might have been her “final wish,” but the group just did not know
for sure because she was dead.22
Susan Estrich and other feminist scholars have documented social and legal attitudes
toward female victims in their descriptions of rape as a gendered crime.23 As was evident in the
Steubenville video, outside observers sometimes blame the victim for her victimization.24 At
other times, observers determine that the victim actually consented to the sexual act.25
Studies have revealed that male victims of rape often suffer from similar types of
judgments, including victims of prison rapes.26 In the Steubenville video, the young man
commented that the young girl had been raped “harder than that cop raped Marsellus Wallace in
Pulp Fiction,”27 Quentin Tarantino’s dark-comedy film.28 He was referring to a rape scene that is
shocking and provocative, and yet the satirical tone of the film as a whole makes it seem that the
19
Carpenter, supra note 14.
20
Bennett-Smith, supra note 12; see also NIRVANA, Rape Me, on IN UTERO (DGC Records
1993).
21
Bennett-Smith, supra note 12.
22
23
See, e.g., SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975); SUSAN
ESTRICH, REAL RAPE (1987) [hereinafter ESTRICH, REAL RAPE]; CATHARINE A. MACKINNON,
TOWARD A FEMINIST THEORY OF THE STATE (1989).
24
See infra notes 125-27, 307-15 and accompanying text.
25
See infra notes 332-35 and accompanying text.
26
See notes 209-16 and accompanying text. It is important to note that men are raped both inside
and outside of prison. See Bennett Capers, Real Rape Too, 99 CALIF. L. REV. 1259, 1272–77
(2011).
27
28
Pulp Fiction, IMDB, http://www.imdb.com/title/tt0110912/synopsis (last visited Mar. 21,
2018) [hereinafter Pulp Fiction].
5
rape on some level is actually intended to be funny. 29 The rape victim in the film, Marsellus
Wallace, is a criminal himself, but his rapist is a security guard.30 This is significant because it
highlights that male rape, particularly in prisons, is often subject to apathy and even derision.31 In
fact, the threat of rape in prison has become an effective tool for the police and prosecutors when
they want to extract confessions and plea deals from criminal suspects, innocent or not.32 Implicit
in this threat is the notion that prison rape is not something that the law intends to remedy, but
rather that rape is part of the prisoner’s punishment.33
Bennett Capers has argued that the similar experiences of male and female rape victims
suggest that society should no longer think of rape as a gendered crime.34 This Article concurs
with Caper’s view that male victimization should be considered in the feminist analysis of rape.
This Article also claims, however, that instead of negating the proposition that rape is a gendered
crime, male victimization shows that rape is an act that reinforces gender norms. In addition, all
rapes, regardless of the sex of the victim, are not just the product of women’s subordinated status
29
See El Cinema Abandonado, Pulp Fiction-Sword Scene, YOUTUBE (Dec. 4, 2011),
https://youtu.be/-lqhql0c8A8.
30
Pulp Fiction, supra note 28.
31
Capers, supra note 26, at 1262. An example from 2013 includes when Detroit Mayor Kwame
Kilpatrick was convicted of twenty-four counts related to corruption, a local radio station flew a
banner in downtown Detroit that stated, “Don’t drop the soap Kwame!” Don’t Drop the Soap
Kwame’ Banner Flown Over Detroit By Radio Show, HUFFINGTON POST (Dec. 6, 2017),
http://www.huffingtonpost.com/2013/03/11/dont-drop-the-soap-kwame-radio-show-mojo-
detroit-_n_2854969.html. “Don’t drop the soap” is a known reference to prison rape. Id.
32
Capers, supra note 26, at 1285.
33
Id. at 1262; see Alice Ristroph, Prison and Punishment: Sexual Punishments, 15 COLUM. J.
GENDER & L. 139, 147 (2006); Ahmed A. White, The Concept of ‘Less Eligibility’ and the Social
Function of Prison Violence in Class Society, 56 BUFF. L. REV. 737, 738–39 (2008).
34
Capers, supra note 26, at 1297–98.
6
to men; they are also the product of men’s relationships with each other. Specifically, one reason
that men rape is because the masculine identity is persistently unstable and vulnerable.35
It is interesting, therefore, that the young man from the video drew a connection between
the victim in Steubenville and the fictional victim in Pulp Fiction. On the surface, the two
incidents seem dissimilar. One was an actual event; the other was a fictional scene in a film. One
involved an unconscious teenage girl victim; the other involved a muscular, conscious adult male
victim. Yet, the young man in the YouTube video, perhaps unconsciously, saw a connection
between these two rapes because they are indeed connected. The Steubenville sexual assault was
the result of a hypermasculine football culture in small-town Ohio.36 The rape scene in Pulp
Fiction highlights, in part, the hypermasculinity of both the police and those who break the law.37
In Part II, I highlight some of the important work of feminist scholars who theorized rape
as a gendered crime. Specifically, they argued that the sexist legal treatment of force, resistance,
and agency contributed to the criminal law’s failure to adequately address the harms caused by
rape.38 This scholarship was highly influential and led to formal changes in the law in many
jurisdictions, including eliminating the force requirement and the creation of rape shield laws.39
Scholars have noted, however, that these formal changes have had limited effect on eradicating
rape due to entrenched gender norms that influence how prosecutors, judges, juries, and even
victims ultimately interpret acquaintance rape cases.40
35
See Michael Kimmel, An Unnatural History of Rape, in EVOLUTION, GENDER, AND RAPE 230–
31 (Cheryl Brown Travis ed., 2003).
36
See infra Part V.
37
See infra Part III.
38
39
See infra notes 78-82, 105-10 and accompanying text.
40
7
Furthermore, other scholars have noted that there is still a lot of consensual, but
undesired,41 sex that women experience, which the law is not necessarily designed to address.42
the experience of undesired sex; even if this type of experience is not appropriate for legal
regulation, it should never be socially acceptable.43
In Part III, I build upon this feminist literature and argue that masculinities literature,
including work on male prison rapes, should also be considered in rape analysis. This work
suggests that rape is not just the product of women’s subordinated relationship to men, but it is
also the product of men’s relationships with each other as they navigate the unstable masculine
identity. Violence, including rape, is a toxic coping mechanism that some men use to assert and
maintain their status in the masculine hierarchy. Since not all men can be on the top of this
hierarchy, some men will be the victims, not the perpetrators, of rape. Rape ultimately can be
punishment for failing to conform to gender norms. Furthermore, male victims of rape are further
punished by social and legal systems that fail to acknowledge their victimhood. Finally, because
a very specific and narrow view of masculinity has become so normalized in our society, the
gendered dynamics that can lead men to have undesired sex, or even to be raped, remain hidden.
It is important that we recognize these dynamics so that some of the harms that male victims
experience can finally be acknowledged.
In Part IV, I argue that a broader understanding of gender is not only necessary for
acknowledging the harms of male victims of rape; it is also necessary in understanding the
41
For purposes of this Article, sex is “consensual” when it is not against an individual’s will. In
contrast, sex is “desired” when individuals consent to sex because of physical attraction or a
desire for an emotional connection with another.
42
ESTRICH, REAL RAPE, supra note 23, at 101–02; Robin West, Sex, Law, and Consent, in THE
ETHICS OF CONSENT 221, 227–33 (Franklin G. Miller & Alan Wertheimer eds., 2010) [hereinafter
West, Sex, Law, and Consent].
43
West, Sex, Law, and Consent, supra note 42, at 233–45.
8
gender dynamics in the current hookup culture. Through rape reform, many feminists sought
sexual freedom and autonomy for women. They argued that these goals should be obtained by
viewing sex from the woman’s perspective.44 Hookup culture, on the other hand, seems to
embrace a view that women should act and be treated more like men. 45 Because the male world
is still gendered, however, the reality is that hookup culture reinforces heteronormative
masculinity and a gender hierarchy. As a result, rape still can be a form of punishment for
women who do not conform to traditional gender norms, despite the fact that hookup culture
purports to be rebelling against these norms.
In addition, young women seem to embrace the notion that they have the same sexual
freedom and autonomy that men do, which masks the constrained choices that some have to
make in a world of complicated and conflicting gender norms. These realities might not always
lead to conduct that society is willing to define legally as rape. It still should be concerning,
however, that some women find that resistance to undesired sex can sometimes be quite costly if
they want to survive and thrive in the current heteronormative paradigm. I use the recent St.
Paul’s case to explore masculinity in the modern world where women must walk a very fine line
between masculine and feminine identities.
In Part V, I conclude that rape reform must go beyond the law and focus more on
dismantling the toxic aspects of masculine culture. This approach is particularly appealing
because it could potentially address not only rape, but also undesired sex. Evidence suggests that
such steps are already being taken through grassroots, social media, and institutional efforts.
44
See ESTRICH, REAL RAPE, supra note 23, at 62, 65; MACKINNON, supra note 23, at 244–49.
45
ESTRICH, REAL RAPE, supra note 23, at 8.
9
II. RAPE: A FEMINIST PERSPECTIVE
Under the common law, rape was defined as “carnal knowledge” or intercourse with a
woman who was not a man’s wife.46 The intercourse had to occur “by force or threat of force;
against her will and without her consent.”47 In other words, a married man could force his wife to
have nonconsensual sex because this conduct was not legally defined as rape. In addition, in
order to make a successful rape claim against a man who was not her husband, it was not enough
for a woman to show that she had nonconsensual sex; she also had to prove the additional
element that the nonconsensual sex occurred by force.48 Physical force was easily met when the
perpetrator used violence that left physical injury. 49 Otherwise, in order to prove the requisite
amount of force required for the crime of rape, the victim was expected to physically resist to her
“utmost.”50 In addition, if a victim delayed in reporting the rape, there was a strong, but not
irrefutable, presumption against her.51
Feminists have been highly critical of the common law approach. The marital exception
to rape reinforces patriarchal hierarchy in the home where women are not treated like equal
partners with their husbands; instead, they are their husbands’ property.52 In addition, Catharine
MacKinnon has argued that once a woman establishes that she did not consent to a sexual act, it
46
Id. at 8.
47
Id. at 8.
48
Id. at 8.
49
Id. at 29–32.
50
Id. at 29–41; see, e.g., Brown v. State, 106 N.W. 536, 538 (Wis. 1906) (“A woman’s means of
protection are not limited to [escape], but she is equipped to interpose most effective obstacles by
means of hands and limbs and pelvic muscles . . . It is hardly within the range of reason that a
man should come out of so desperate an encounter as the determined normal woman would make
necessary, without signs thereof upon his face, hands, or clothing.”). Id.
51
52
Id. at 72–79; MACKINNON, supra note 23, at 112–13.
10
is “redundant” to then require a showing of force; sex without one’s consent necessarily implies
that the sex was taken by force. 53
Furthermore, some feminists argue that the physical resistance requirement, which the
common law required when there was no evidence of extrinsic force, put a higher burden on
victims of rape than on victims of other types of crime.54 In her groundbreaking law review
article, Rape, Susan Estrich questions why a rape victim should have to physically resist her
rapist while a person is not expected to physically resist a thief stealing one’s wallet? 55 Estrich
ultimately concludes that the physical resistance requirement is sexist. First, she argues that it is
based on a view that women simply cannot be trusted.56 As a result, the physical resistance
requirement ensures that the victim is not lying about the rape. Also, in situations when the
woman did not verbally consent, the physical resistance requirement ensures that she actually
meant it, and it provides a potential defendant with notice that his actions are undesired. 57 In
other words, physical resistance helps demonstrates that the “no” is actually unequivocal.
53
MACKINNON, supra note 23, at 172.
54
Susan Estrich, Rape, 95 YALE L. J. 1087, 1126 (1986) [hereinafter Estrich, Rape]; but see Anne
M. Coughlin, Sex and Guilt, 84 VA. L. REV. 1, 29–40 (1998) (arguing that force might have been
a required element of rape under the common law because rape was a defense to the crimes of
fornication and adultery).
55
Estrich, Rape, supra note 54, at 1107.
56
ESTRICH, REAL RAPE, supra note 23, at 36; but see Coughlin, supra note 54, at 29–40 (arguing
that feminist critiques about rape are misplaced because under the common law rape was
probably not a crime about sexual autonomy, but rather it was probably a defense against the
crimes of fornication and adultery).
57
ESTRICH, REAL RAPE, supra note 23, at 40. The view still persists that women say “no” when
they actually mean “yes.” Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives
What, and Why, in Acquaintance-Rape Cases, 158 U. PA. L. REV. 729, 756–60 (2010)
[hereinafter Kahan, Culture, Cognition, and Consent]. Some view the verbal protestation as part
of sexual foreplay but others view the “no” as demonstrating ambivalence about having sex. Id.
11
Second, according to Estrich, the physical resistance requirement is based on the view
that men should have sexual access to women in “appropriate” relationships.58 Estrich argues
that under the common law approach, a woman need not resist strangers, especially if she is
white and her perpetrator is African-American, because it is presumed that the perpetrator does
not have a right to have sex with her.59 The physical resistance requirement, however, allows
men to have sex with women whom they are appropriately dating or to whom they are married,
without the danger that these women will lie about the consensual nature of the sex after the
fact.60
Another problem that Estrich has found with the physical resistance requirement is that it
leaves many victims without legal redress because many do not physically resist during what
Estrich calls “simple” rapes, or rapes that involve no extrinsic violence.61 In other words, she
posits that the common law definition of rape is not based on the reality of some female rape
victims. Estrich argues that the reason for this incongruity is because the physical resistance
requirement is based on a very “male” view of force.62 Estrich finds this view reminiscent of the
boy who is challenged in a schoolyard fight.63 When a boy is challenged to a fight, he is expected
to fight back.64 Otherwise, he is viewed as a “sissy.”65 In the simple rape context, women are
58
ESTRICH, REAL RAPE, supra note 23, at 36–37.
59
Id. at 36 (emphasis added).
60
Id. at 36–37.
61
Id. at 62.
62
Id.
63
Id.
64
65
Id.
12
expected to fight like a man supposedly would66 if they want to be viewed as legitimate rape
victims.
In addition to concluding that the justifications for the physical resistance requirement are
based upon sexist norms, Estrich also argues that the requirement perpetuates the myth of “real
rape.”67 While some might believe that most rapes are perpetrated by strangers who use extrinsic
violence, crime statistics tell another story. Rape is believed to be heavily underreported, 68 but
according to the National Institute of Justice’s National Violence Against Women Survey, of the
approximately 17.7 million women who had reported being forcibly raped, only 16.7% were
raped by a stranger.69 Of the 2.8 million men who had been forcibly raped in their lives, only
22.8% were raped by a stranger.70 Furthermore, only 31.5% of women and 16.1% of men
reported being physically injured during their most recent rape.71 These statistics underscore the
fact that the vast majority of rapes that occur in the United States involve perpetrators whom the
victims know. They also usually involve very little, if any, actual extrinsic violence that includes
guns, knives, or beatings.
66
Capers, supra note 26, at 1306 (providing evidence that many male victims of rape also do not
resist their attackers).
67
Id. at 1264.
68
PATRICIA TJADEN & NANCY THOENNES, NAT’L INST. OF JUSTICE, EXTENT, NATURE AND
CONSEQUENCES OF RAPE VICTIMIZATION: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST
WOMEN SURVEY 1–2 (2006). But see Aya Gruber, Anti-rape Culture, 64 U. KAN. L. REV. 1027,
1031–39 (2016) [hereinafter Gruber, Anti-rape Culture] (cautioning that the ubiquitousness of
rape on college campuses might be overstated if anti-rape activists are conflating suboptimal
drunken sex with rape).
69
TJADEN & THOENNES, supra note 68, at 21.
70
Id.
71
Id. at 29.
13
Robin West agrees with Estrich that the myth of “real rape” minimizes the harm of
simple rape.72 She argues that some rape victims experience the unwelcome act of penetration
itself as an act of violence.73 She notes that they may experience severe pain, and they can often
experience serious tearing and bruising.74 Furthermore, she Robin West argues that women can
experience a unique psychic harm, or a “spiritual murder,” that results from “unwanted sexual
penetration”; this harm is very different and separate from being threatened with a gun or being
beaten.75 For this reason, many feminists believe that recognition of women’s sexual agency is
an important and necessary goal of rape reform.76
The overarching theme of these arguments is that society and the law both need to
evaluate the concepts of consent, force, and rape based on real women’s experiences.77 In
response to feminist activism, a few jurisdictions have lessened the resistance standard in their
statutes to “earnest resistance.”78 A few more have moved to a “reasonable” resistance
requirement.79 Most jurisdictions, however, no longer have any type of a formal resistance
requirement in their statutes.80
72
Robin L. West, Legitimating the Illegitimate: A Comment on Beyond Rape, 93 COLUM. L. REV.
1442, 1448 (1993) [hereinafter West, Legitimating the Illegitimate].
73
Id. But see Katharine K. Baker & Michelle Oberman, Women’s Sexual Agency and the Law of
Rape in the 21st Century, 69 STUD. LAW, POL., & SOC’Y 63, 95 (2016) [hereinafter Baker &
Oberman, Women’s Sexual Agency] (noting that narratives from literature on hookups suggest
that not all women experience nonconsensual sex as a violent and highly traumatic act).
74
West, Legitimating the Illegitimate, supra note 72, at 1448.
75
Id. But see Baker & Oberman, Women’s Sexual Agency, supra note 73, at 95.
76
MACKINNON, supra note 23, at 175; Dorothy E. Roberts, Rape, Violence, and Women’s
Autonomy, 69 CHI.-KENT L. REV. 359, 387 (1993); Deborah Tuerkheimer, Rape On and Off
Campus, 65 EMORY L.J. 1, 40–43 (2015) [hereinafter Tuerkheimer, Rape On and Off Campus].
77
ESTRICH, REAL RAPE, supra note 23, at 62, 65; MACKINNON, supra note 23, at 244–49.
78
ALA. CODE § 13A-6-60(8) (2016); W. VA. CODE 61-8B-1(1)(a) (2016).
79
N.D. CENT. CODE § 12.1-20-04 (2013); 18 PA. CONS. STAT. § 3121(2) (2013).
80
Michelle J. Anderson, Reviving Resistance in Rape Law, 1998 U. ILL. L. REV. 953, 966–69
(1998).
14
By the 1970s and 1980s, many jurisdictions began to analogize rape with other types of
assault—focusing less on whether the accuser consented and more on the actions of the
accused.81 Specifically, courts focused on the element of force used by the perpetrator. 82 Yet the
act of intercourse itself constitutes force. For this reason, regardless of whether a jurisdiction has
a formal resistance requirement, many courts still analyze the accuser’s physical resistance (or
lack of it) in determining whether the prosecution has established the element of force in a
simple rape case.83 In other words, if there is no extrinsic physical violence, the amount of force
used by the defendant must be at such a level that it would overcome a “reasonable” person’s
ability to physically resist.84 Even with respect to those jurisdictions that no longer formally
require force, courts and jurors still intuitively look for either physical resistance or some type of
force on the part of the perpetrator as evidence of a lack of consent.85
To be clear, it is not the concept of resistance in and of itself that many feminists find
problematic. Many rape victims do resist, and Michelle Anderson argues that we should
encourage, not discourage, resistance in rape victims.86 Citing empirical studies, she asserts that
while passivity ensures rape completion, resistance can potentially deter rapes with little
81
82
Id.
83
See, e.g., State v. Alston, 312 S.E.2d 470, 476 (N.C. 1984) (determining that there was not
enough force to constitute rape because the victim did not physically resist); Goldberg v. State,
395 A.2d 1213, 1219 (Md. Ct. Spec. App. 1979) (finding that resistance by a woman to prove
rape must include verbal as well as physical circumstances). Sex between strangers is presumed
to be by force; physical resistance is not typically required in the stranger rape context. ESTRICH,
REAL RAPE, supra note 23, at 36–37.
84
Commonwealth v. Berkowitz, 609 A.2d 1338, 1348 (Pa. Super. Ct. 1992). In In re Interest of
M.T.S., New Jersey became the first jurisdiction where the force necessary for intercourse is
sufficient to establish rape. 609 A.2d 1266, 1276 (N.J. 1992).
85
Despite the fact that New Hampshire does not require a showing of force to establish rape, it is
possible that jurors did not find Owen Labrie guilty of rape because the accuser in that case did
not physically resist. See infra Part IV.
86
Anderson, supra note 80, at 958–59.
15
evidence that it increases a victim’s risk of serious bodily injury or death.87 She additionally
describes how active resistance “may decrease the psychological damage a woman experiences
from sexual attack, even if the rape is completed.”88 Finally, she argues that resistance may
provide physical evidence such as scratches and bruises, which would establish a lack of consent
and the use of force.89 While she agrees with other scholars that resistance should not be required
for a rape conviction, she ultimately concludes that the problem with rape law is not the concept
of resistance unto itself, but rather the interpretative paradigm that courts use to evaluate a
woman’s resistance.90 Anderson argues that “verbal and physical resistance should each be
sufficient” to establish a lack of consent and the use of force.91
In In re Interest of M.T.S., the New Jersey Supreme Court moved completely away from
the physical resistance requirement and determined that the force necessary for penetration
during intercourse is sufficient to establish rape.92 In that case, the trial court determined that the
victim had “consented to a session of kissing and heavy petting” with the defendant, but that she
had not consented to the act of penetration.93 There were no allegations that the defendant used
extrinsic force or the threat of extrinsic force.94 In addition, there was no evidence that the
alleged victim physically resisted him until after the act of penetration.95 The M.T.S. Court
determined, however, that there was still enough evidence to prove the defendant’s disposition of
87
Id. at 958–59, 977–78.
88
Id. at 959.
89
Id. at 994.
90
Id. at 957.
91
Id. at 960.
92
In re Interest of M.T.S., 609 A.2d 1266, 1276 (N.J. 1992).
93
Id. at 1269.
94
Id. at 1268–69.
95
Id.
16
juvenile delinquency because the State had met its burden of proving beyond a reasonable doubt
that the penetration was “accomplished without the affirmative and freely-given permission of
the alleged victim.”96 This case is significant, therefore, not only because penetration alone
sufficed as evidence of force, but also because affirmative consent on the part of the accuser This
case is significant, therefore, not only because penetration alone sufficed as evidence of force,
but also because affirmative consent on the part of the accuser was now required. 97 In other
words, passivity and silence are insufficient to establish consent in New Jersey, though this type
of evidence is adequate in a majority of jurisdictions.98
It is unclear how many cases in New Jersey are successfully prosecuted under facts
similar to M.T.S., with no extrinsic physical force from the perpetrator and no active physical
resistance or affirmative consent on the part of the victim. In addition, no published opinions
were found with a fact pattern similar to M.T.S.99 It is possible that the lack of appellate opinions
simply means that defendants who have been convicted under similar situations have not
96
Id. at 1279.
97
See CAL. EDUC. CODE § 67386 (West 2016). (showing that California now also requires
affirmative consent for sexual encounters on college campuses).
98
Deborah Tuerkheimer, Affirmative Consent, 13 OHIO ST. J. CRIM. L. 441, 451 (2016)
[hereinafter Tuerkheimer, Affirmative Consent] (noting that while Wisconsin and Vermont also
have affirmative consent models, “a majority of jurisdictions rely on the concept of force in
defining rape”). See Deborah Tuerkheimer, Slutwalking in the Shadow of the Law, 98 MINN. L.
REV. 1453, 1497 (2014) [hereinafter Tuerkheimer, Slutwalking] (“A woman who does nothing to
indicate her willingness to engage in sex may nonetheless be viewed as consenting.”).
99
The closest case that I could find was one unpublished appellate court opinion. See State v.
J.C., No. 09-04-0719, 2012 WL 2076525 (N.J. Super. Ct. App. Div. June 11, 2012) in which an
alleged victim testified that she had not resisted the defendant during her alleged assault because
she was much smaller; however, she did roll away from the defendant during the assault and
tightened her legs, from which a jury could have reasonably inferred as physical resistance. Id. at
*3, *6. For other cases that involved extrinsic violence, see State v. Garron, 827 A.2d 243, 263–
64 (N.J. 2003), which described how the defendant allegedly grabbed the victim, forced her to
her knees, placed his penis in her mouth, and held her head while he ejaculated, and State v.
Oliver, 627 A.2d 144, 147 (N.J. 1993), in which the alleged victim allegedly struggled with the
defendant, thus he covered her nose and mouth while holding her to the ground. But see State v.
Cuni, 697 A.2d 550, 595 (N.J. Super. Ct. App. Div. 1997) for a case in which the jury likely
convicted the defendant because they believed he allegedly entered the victim’s home without
permission and the alleged victim had Down Syndrome.
17
appealed their verdicts. It could also mean that some individuals have opted to accept plea
bargains rather than taking their cases to trial. But there is also evidence suggesting that unless
there is extrinsic force and some type of proof that the victim physically resisted, many people
find it difficult to determine that a woman was raped beyond a reasonable doubt.100 In addition,
there is evidence suggesting that some victims themselves do not perceive unwanted sex as rape
unless they physically resisted, even in cases where the law would undoubtedly consider what
happened to them as rape.101 Therefore, despite codified New Jersey law, it should be recognized
that there is the possibility that victims are not reporting acts that constitute rape in New Jersey
because they do not personally believe the state would find that they were “raped.” In addition,
prosecutors might not be bringing charges in cases similar to M.T.S.; if they are, it is possible
that juries are still not convicting the defendants.
California and New York have passed laws that require affirmative consent for sexual
encounters on college campuses.102 While one poll suggests that many Americans were in favor
of the California law when it was passed,103 it remains to be seen whether prosecutors and juries
will be willing to convict defendants of rape in contexts similar to M.T.S. Criticism of California
and New York’s affirmative consent laws, however, include the concern that this model may
100
Katharine K. Baker, Why Rape Should Not (Always) Be a Crime, 100 MINN. L. REV. 221, 223
(2015) [hereinafter Baker, Not (Always) Be a Crime] (discussing the challenges of successfully
prosecuting rape cases under the standard of beyond a reasonable doubt). See also STEPHEN J.
SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW 17–46
(1998).
101
Baker, Not (Always) Be a Crime, supra note 100, at 256–59 (arguing that many women who
experience undesired sex may refuse to view themselves as raped as a way to take back their
agency, which might protect them from psychological harm).
102
CAL. EDUC. CODE § 67386 (West 2016); N.Y. EDUC. LAW §6441 (McKinney 2015).
103
Ariel Edwards-Levy, Most Americans Support “Yes Means Yes” Sexual Consent Rule,
HUFFINGTON POST (Dec. 6, 2017), http://www.huffingtonpost.com/2014/10/06/yes-means-yes-
poll_n_5940510.html?cps=gravity (reporting nearly sixty percent of Americans approved the
California law).
18
criminalize actions that some would consider a reasonable mistake on the part of an alleged
rapist.104
Another area of rape reform was the codification of rape shield laws. It used to be the
case that a rape victim not only had to defend her actions during the alleged rape in question, but
she also had to defend her whole sexual history.105 There was a presumption that if a woman
consented to sex in the past, it was more likely that the alleged rape was actually consensual
sex.106 However, under rape shield laws, the alleged victim’s past sexual behavior is generally
not admissible at trial.107 “Sexual behavior” has been interpreted quite broadly to include how
the victim dresses, including during the sexual act in question.108 It has also been interpreted to
include evidence that the alleged victim works as an exotic dancer. 109 In addition, any evidence
with respect to her sexual reputation is generally not admissible.110 For example, the defense
cannot introduce evidence that the alleged victim is known to “sleep around” or to be a “slut.”
Nevertheless, there are exceptions that still allow some of the victim’s past sexual
behavior to be admissible at trial. Evidence showing the alleged victim had consensual sex with
104
See, e.g., Cathy Young, Campus Rape: The Problem With ‘Yes Means Yes’, TIME (Aug. 29,
2014), http://time.com/3222176/campus-rape-the-problem-with-yes-means-yes/ (explaining that
some feel verbal affirmative consent laws are a confusing legal standard for colleges when
investigating sexual misconduct and will err on the side of the accuser); Judith Shulevitz,
Regulating Sex, N.Y. TIMES (June 27, 2015),
https://www.nytimes.com/2015/06/28/opinion/sunday/judith-shulevitz-regulating-sex.html. But
see Tuerkheimer, Affirmative Consent, supra note 98, at 451–52, 467–68 (surveying case law in
New Jersey, Wisconsin, and Vermont and concluding that concerns about inadvertently
criminalizing reasonable mistakes may actually be superfluous).
105
Sakthi Murphy, Rejecting Unreasonable Sexual Expectations: Limits on Using a Rape
Victim’s Sexual History to Show the Defendant’s Mistaken Belief to Consent, 79 CALIF. L. REV.
541, 550–53 (1991) (explaining rape shield laws and their five purposes.)
106
Id. at 550.
107
See, e.g., FED. R. EVID. 412(a)(1).
108
CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 4:78 (4th ed.
2013) (citing State v. Nowlin, 818 A.2d 1237 (N.H. 2003)).
109
Id. (citing People v. Powell, 506 N.W.2d 894, 895 (Mich. Ct. App. 1993)).
110
See, e.g., FED. R. EVID. 412(a)(2).
19
the defendant in the past can be introduced as evidence to establish that it is likely she consented
to sex during the encounter in question.111 In addition, sexual behavior with individuals other
than the defendant can be introduced to prove that the source of any physical evidence, such as
semen or bruising, did not come from the defendant.112 Furthermore, courts have admitted
evidence of past sexual behavior when the evidence establishes that the alleged victim has
engaged in a “pattern” of certain type of sexual behavior.113
Because of the limited effectiveness of many of these reforms, Katharine Baker and Aya
Gruber have argued that regardless of how a rape law is ultimately drafted, there must be a
change in gender social norms before our society sees a significant reduction in sexual
assaults.114 Juries do not want to blame men for acquaintance rape when their behavior is viewed
as normal and not particularly culpable.115 An aggressive male, who physically overcomes a
passive female, might be viewed as someone who is sexually adept, not as someone who is a
rapist. Indeed, sexual conquest is well-accepted as an appropriate behavioral norm of masculinity
by both men and women.116 For this reason, prosecutors and jurors might be hesitant to punish
men who are simply performing their masculinity in the way society believes men are supposed
111
See, e.g., Id. 412(b)(1)(B).
112
See, e.g., Id. 412(b)(1)(A).
113
Deborah Tuerkheimer, Judging Sex, 97 CORNELL L. REV. 1461, 1472–73 n. 55 (2012)
[hereinafter Tuerkheimer, Judging Sex] (citing Myrna Raeder, Excluding Sexual Pattern
Evidence of Rape Complainants When the Defense is Consent, JOTWELL (Nov. 28, 2011),
https://crim.jotwell.com/2011/).
114
Katharine K. Baker, Sex, Rape, and Shame, 79 B.U. L. REV. 663, 665–66 (1999) [hereinafter
Baker, Sex, Rape, and Shame]; Aya Gruber, Rape, Feminism, and the War on Crime, 84 WASH.
L. REV. 581, 627–38 (2009) [hereinafter Gruber, War on Crime].
115
Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110
HARV. L. REV. 563, 588–89 (1997) [hereinafter Baker, Once A Rapist?]; Baker, Not (Always) Be
a Crime, supra note 100, at 249.
116
Baker, Sex, Rape, and Shame, supra note 114, at 675–79; Baker, Not (Always) Be a Crime,
supra note 100, at 246–47.
20
to behave.117 In addition, verbal communication, which would enhance a man’s understanding
regarding the desires of his partner, is generally not perceived to be part of current social
practices.118
The masculinity norm of sexual conquest recently made national news when a student
from the prestigious St. Paul’s School, a college preparatory school in New Hampshire, accused
a former student, Owen Labrie, of rape.119 The alleged rape occurred as part of a well-honored
tradition at the school where seniors ask younger students to take part in the “senior salute.”120
As part of this ritual, some students do not do much more than go for a walk or kiss, but the goal
seems to be for some seniors to have sex.121 In fact, Labrie admitted to the police that there was a
competition among the students to see who could have sex with the most number of girls.122
Labrie was apparently quite popular at St. Paul’s in part because he had had sex with a lot of
girls.123
Gender norms influence the perception of the alleged perpetrator as well as the
perception of the alleged victim.124 What is most troubling, however, is that these gender norms
can be so powerful that even when the credibility of the victim is not at issue, she can still be
perceived as blameworthy.125 There have been cases where the public, and sometimes even the
117
Baker, Sex, Rape, and Shame, supra note 114, at 707–09; Baker, Not (Always) Be a Crime,
supra note 100, at 242–43.
118
Baker, Sex, Rape, and Shame, supra note 114, at 688–90.
119
Jess Bidgood & Motoko Rich, Rape Case Puts Focus on Culture of Elite St. Paul’s School,
N.Y. TIMES (Aug. 18, 2015), https://www.nytimes.com/2015/08/19/us/rape-case-explores-
culture-of-elite-st-pauls-school.html.
120
Id.
121
Id.
122
Id.
123
See id.
124
Baker, Once A Rapist?, supra note 115, at 586–87.
125
Id. at 586.
21
jury, seemed to believe that the alleged victims did not consent to sex.126 Yet they also believed
that the victims deserved to be raped because they were dressing or acting in gender
inappropriate ways.127
In the Steubenville case, observers casually filmed and joked about the sexual assaults as
they allegedly were happening, even though they seemed to have no doubts about the fact that a
crime was occurring.128 Even though he clearly believed that this young woman was being
sexually assaulted, one young man opined, “some people deserved to be peed on.”129 After the
assaults, other members of the Steubenville community also expressed that the young woman
was to blame for putting herself in the position where she could be violated.130 It is not exactly
clear what these community members believed this young woman had done wrong. Was it the
fact that she allowed herself to become intoxicated to the point of unconsciousness? Was it the
fact that she attended a party where underage drinking was taking place instead of staying home
with her parents? What is clear is that many did not blame the young men who violated her.131
Instead, they seemed to believe that she was solely responsible for stopping her sexual assault;
the actual perpetrators, Richmond and Mays, were not at fault.132
Katharine Baker argues that our society has norms for women that “include proscriptions
on drinking, dressing in certain manners, and leaving home on her own. If a woman breaches
these norms, her credibility becomes largely irrelevant because the jury will not bother to
126
Id. at 587.
127
Id. (discussing a survey that nearly forty percent of both men and women believe dressing
seductively is partially to blame if a woman is raped).
128
Macur & Schweber, supra note 1.
129
Id.
130
Id.
131
Id.
132
Id.
22
vindicate her violation.”133 This explains why some victims absolve their perpetrators of moral
responsibility for the coerced sex and ultimately blame themselves.134
While many feminists critique and examine the gender norms that might lead to sexual
violence, the truth is that there certainly is not a consensus among feminists as to which norms
should be vanquished and which ones should be valorized.135 This lack of consensus necessarily
complicates the analysis of what the boundaries should be between consensual and
nonconsensual sex and lawful versus unlawful conduct. Feminists have theorized this issue in a
variety of ways.
Catharine MacKinnon has argued that gendered conditions are such that virtually all
heterosexual sex is coerced and nonconsensual.136 Sex positive theorists, on the other hand, argue
that submission can actually be pleasurable in certain contexts, and therefore it is inhibiting to
define consent too narrowly.137 Robin West has acknowledged that there is such a thing as
consensual, heterosexual sex and that consent is the appropriate demarcation for determining
when sexual conduct is criminal.138 She is troubled, however, that this legal demarcation also
133
Baker, Once A Rapist?, supra note 115, at 589.
134
Elizabeth A. Armstrong et al., Sexual Assault on Campus: A Multilevel, Integrative Approach
to Party Rape, 53 SOC. PROBS. 483, 493 (2006) [hereinafter Armstrong et al., Multilevel,
Integrative Approach]; Baker, Not (Always) Be a Crime, supra note 100, at 255. In the
Steubenville case, the accuser did seek criminal prosecution of Mays and Richmond, and they
were convicted. As will be discussed in Part IV, the prosecution was probably successful, in part,
because of pressure outside of the Steubenville community through social and national media.
See Jennifer Preston, How Blogger Helped the Steubenville Rape Case Unfold Online, N.Y.
TIMES (Mar. 18, 2013), https://thelede.blogs.nytimes.com/2013/03/18/how-blogger-helped-
steubenville-rape-case-unfold-online/.
135
See infra notes 136–40 and accompanying text.
136
MACKINNON, supra note 23, at 172–74.
137
See, e.g., JANET HALLEY, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM
FEMINISM 117 (2006); Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and
Desire, 101 COLUM. L. REV. 181, 200–02 (2001).
138
West, Sex, Law, and Consent, supra note 42, at 224.
23
tends to morally legitimize much undesired, and often unpleasant, sex.139 She argues that after a
time, undesired sex can become “alienating and oppressive—in a word, injurious.”140
The purpose of this paper is not to theorize further upon the line-drawing that is
inevitably necessary within a criminal legal system. Instead, I argue we should use one of West’s
key insights as a starting point: regardless of whether certain conduct is defined a “rape,” society
should be extremely troubled by the fact that women still experience many instances of
undesired sex.141 For purposes of this Article, sex is “desired” when an individual consents to sex
because of physical attraction, a desire for an emotional connection with another, or a desire for
sheer pleasure. Sex is “consensual” when it was not against an individual’s will.
Desired sex should be a normative goal because true sexual autonomy is not only about
consent, but it also about desire and pleasure. In addition, a normative focus on pleasure, rather
than just on consent, could ultimately lead to not only less undesired sex, but also to less conduct
that most want to legally define as rape. As Gruber and Baker argue, the effectiveness of legal
reform is going to be severely limited if societal norms are too far removed from what the law
imposes.142 For this reason, our focus should be on challenging the gender norms that provide
fertile ground for undesired sex and rape, not just on changing the law so that more perpetrators
can potentially be punished.
139
Id.
140
Id. at 245.
141
Id. at 237–38; see also Franke, supra note 137, at 199–200 (arguing that feminists need to
start theorizing sex as a site of pleasure, not just as a site of terror and fear, in order to find ways
for the law to treat sexuality more like a positive right).
142
Baker, Sex, Rape, and Shame, supra note 114, at 664; Gruber, War on Crime, supra note 114,
at 635.
24
Feminists have done a lot of important work in uncovering how certain gender norms can
lead women to be raped.143 They have also shown how these same gender norms have become so
normalized that the coercive aspects of undesired sex often remain hidden.144 Their work is still
somewhat incomplete, however, because they rarely consider the fact that men suffer from these
same experiences. Men are often blamed for their assaults, even when no one doubts their
experiences should be defined as rape.145 They also often experience undesired sex; the ways that
some men are coerced into having sex often remain hidden.146
Bennett Capers has asked whether the similarities in the experiences of men and women
suggest that it might be time for feminists to stop viewing rape as a gendered crime.147 Part III
will argue, however, that the experiences of male rape victims actually underscores the fact that
gender “is not something one has but, rather, something one does.”148 While biology can serve as
a proxy for gender, masculinities theorists suggests that how one behaves also determines where
one falls in the gender hierarchy.149 In addition, the masculine identity is perpetually vulnerable,
which leads some men to use aggression and violence to maintain their masculine status.150
These propositions explain why men can be and are raped. Masculinities literature on male
prisoner rape also sheds some light on how the social construct of masculinity animates the
social and legal treatment of agency and force in acquaintance rape cases involving both male
143
See supra notes 52-77, 114-18, 133-34 and accompanying text.
144
See supra notes 52, 77, 114-18, 133-34 and accompanying text.
145
See infra Part III.
146
See infra Part III.
147
Capers, supra note 26, at 1297–98.
148
Angela P. Harris, Gender, Violence, Race, and Criminal Justice, 52 STAN. L. REV. 777, 782
(2000); see also R.W. CONNELL, THE MEN AND THE BOYS 12 (2000).
149
See JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 179
(1999).
150
25
and female victims of rape. It also shows how the coercive aspects of undesired sex can remain
hidden.
III. RAPE: A MASCULINITIES PERSPECTIVE
There are several important insights that come out of the work of masculinities scholars.
The term “masculinities” refers to the set of practices that are socially constructed to constitute a
“man.”151 Like feminist scholars, masculinities scholars recognize that men as a class dominate
women as a class.152 Masculinities scholars also recognize, however, that men do not have equal
power because the masculine identity is influenced by other identities including race, class, and
sexual orientation, which further subordinates or possibly elevates one’s status.153 Indeed, many
scholars use the plural term “masculinities” because they recognize that due to this
intersectionality of identities, the male identity is performed in multiple ways. 154 In addition,
gender can be constructed differently based on culture and different points in history. 155 For
example, masculinity may be performed differently by a gay, wealthy African-American man
than by a heterosexual, poor white American. In addition, it is possible for a woman to perform
masculinity in certain contexts.156
151
Nancy E. Dowd et al., Feminist Legal Theory Meets Masculinities Theory, in MASCULINITIES
AND THE LAW: A MULTIDIMENSIONAL APPROACH 25 (Frank Rudy Cooper & Ann C. McGinley
eds. 2012).
152
Id.
153
Id.
154
CONNELL, supra note 148, at 10; See MICHAEL S. KIMMEL, THE GENDERED SOCIETY 11
(2000); Harris, supra note 148, at 783.
155
CONNELL, supra note 148, at 10.
156
Id. at 29; see Dowd et. al., supra note 151, at 25.
26
Because it can be performed in a variety of ways, there is no essential definition of
masculinity.157 There is still a hierarchy, however.158 The hegemonic, or most idealized and
dominant, masculine identity in American culture includes being heterosexual, white, and middle
to upper-class.159 The most important characteristics of the hegemonic masculine identity are not
to be a woman and not to be gay.160 Thus, the performance of hegemonic heteronormative
masculinity involves demonstrating to others, particularly to other men, that one does not fit into
either of those categories.
In the end, however, it is impossible to perfectly perform the ideal masculine identity all
of the time. For this reason, another important insight of masculinities literature is that a man’s
masculine identity is constantly under threat; he must constantly work to try to maintain his place
within the masculine hierarchy.161 This reality often leads to great harms for both men and
women because men often respond to this threat by constantly seeking domination over women
and other men, sometimes through violence.162 Indeed, one socially recognized trait of
masculinity is violent behavior.163
157
See Dowd et. al., supra note 151, at 27.
158
CONNELL, supra note 148, at 10; Dowd et. al., supra note 151, at 27–28.
159
DON SABO ET AL. EDS., Gender and the Politics of Punishment, in PRISON MASCULINITIES 5
(2001).
160
See KIMMEL, supra note 154, at 11; Dowd et. al., supra note 151, at 29.
161
Harris, supra note 148, at 780; Russell K. Robinson, Masculinity as Prison: Sexual Identity,
Race, and Incarceration, 99 CALIF. L. REV. 1309, 1332 (2011).
162
See SABO ET AL., supra note 159, at 5.
163
KIMMEL, supra note 154, at 10 (citing that “[four] times more teenage boys than teenage girls
think fighting is appropriate when someone cuts into the front of a line. Half of all teenage boys
get into a physical fight each year.”); Harris, supra note 148, at 780. In fact, transgender men
sometimes abuse their partners in order to establish themselves as men. Leigh Goodmark,
Transgender People, Intimate Partner Abuse, and the Legal System, 48 HARV. C. R.-C.L. L. Rev.
51, 95–96 (2013).
27
These insights are not meant to suggest that all men perform their masculinity through
extrinsic violence against other men or women. Many men move away from the notion that the
best way to handle a disagreement is through a school yard fight once they enter the workforce
and start their families;164 such conduct could have negative repercussions on their livelihoods
and home lives.165 In his book about the elite students at St. Paul’s boarding school, Shamus
Rahman Kahn claims that, during his time at the school as both a student and a faculty member,
physical fights rarely occurred on campus.166 Instead, young men engaged in psychological types
of tactics, including ignoring and isolating one another.167 As Kahn notes, “[w]e can’t ignore the
class elements of these boys’ self-control of physical strength and the realigning of power on a
non-physical basis.”168 According to the St. Paul’s mentality, “violence is idiotic,
counterproductive to elite success, and, though no one would ever say this, reeks of the lower
classes.”169 Similarly, in the college context, although alcohol is often involved in acquaintance
sexual assaults,170 one study found that men from the most elite fraternities on a college campus
viewed sex with intoxicated women to be “low status” and claimed to avoid it.171
Thus, those men who dominate the hegemonic masculine hierarchy sometimes perform
their masculinity in ways that appear nonviolent and respectful of women and their autonomy.172
164
See KIMMEL, supra note 154, at 248 (noting that the likelihood of violence decreases with
age).
165
DON SABO ET AL. EDS., supra note 159, at 10.
166
SHAMUS RAHMAN KHAN, PRIVILEGE 101–02 (2011).
167
Id.
168
Id.
169
Id.
170
Christine Chambers Goodman, Protecting the Party Girl: A New Approach for Evaluating
Intoxicated Consent, 2009 BYU L. REV. 57, 58 n.2.
171
Armstrong et al., Multilevel, Integrative Approach, supra note 134, at 491 n.10.
172
Harris, supra note 148, at 785.
28
The truth is that this performance actually “‘cover[s] up the gendered power advantages . . . that
are built into the institutions they control.’”173 In other words, these men do not have to engage
in physical violence or to disrespect women overtly because they may have economic or other
advantages that already ensure their dominant role in the gender and class hierarchies.
Masculinity can be most threatened in homosocial settings. With no women around, men
have to work particularly hard to maintain their status in the gender hierarchy. 174 Men sometimes
prove their manhood by “reducing others in the group to women and abusing them
accordingly.”175 It is in these settings, such as in the military, athletics, or within prisons, that
heightened performances of masculinity, or “hypermasculinity,” become apparent.176
Hypermasculinity is “a masculinity in which the strictures against femininity and homosexuality
are especially intense and in which physical strength and aggressiveness are paramount.”177
The conditions for hypermasculinity are particularly ripe in the prison context.
Incarceration is itself a form of emasculation by the patriarchal and masculine state.178 Deprived
of basic liberties such as having the freedom to go where one chooses, to shower and toilet in
private, and to choose when to eat or sleep, incarcerated men are purposely made to feel
powerless.179 Performance of masculinity becomes particularly important to some prisoners in
173
Karen D. Pyke, Class-Based Masculinities: The Interdependence of Gender, Class, and
Interpersonal Power, 10 GENDER & SOC. 527, 531–32 (1996).
174
Harris, supra note 148, at 785–86.
175
Id.
176
Kim Shayo Buchanan, Our Prisons, Ourselves: Race, Gender and the Rule of Law, 29 YALE
L. & POL’Y REV. 1, 39–40 (2010) [hereinafter Buchanan, Our Prisons, Ourselves].
177
Harris, supra note 148, at 793.
178
See Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist
Jurisprudence, 8 SIGNS 635, 644 (1982) [hereinafter MacKinnon, Feminism, Marxism] (arguing
that the state is male).
179
Stephen “Donny” Donaldson, A Million Jockers, Punks, and Queens, in PRISON
MASCULINITIES 122 (Don Sabo et al. eds., 2001).
29
order to try to take back some of that power.180 Since violence is part of the masculine identity,
when a man enters prison, his survival sometimes depends on his ability to defend himself from
physical attack.181 If he cannot, he is vulnerable to further violence, and even death. 182 Those
who exact violence maintain their status on the top of the prison hierarchy.183 In addition to
exerting power through physical blows, male prisoners also sometimes exert power through
coerced sex.184 Rape can be a way to transform other men in the prison’s homosocial setting into
“women.”
In 2011–12, 4% of prisoners and 3.2% of jail inmates reported experiencing at least one
incident of sexual victimization by another inmate or staff member in the prior twelve months.185
Those who are most vulnerable to rape are those who fail to meet the hegemonic masculine
identity: those who are “smaller, weaker, younger, naïve, disabled, effeminate, gay, bisexual or
transgender, or who have been ‘made gay’ by being previously raped.” 186 Prisoners on the top of
the hierarchy are those who penetrate other prisoners and continually avoid being penetrated.187
180
Id.
181
SABO ET AL., supra note 159, at 10–11.
182
Id.
183
Id.
184
Ristroph, supra note 33, at 141.
185
ALLEN J. BECK ET AL., BUREAU OF JUSTICE STATISTICS, SEXUAL VICTIMIZATION IN PRISONS
AND JAILS REPORTED BY INMATES, 2011–12 6 (2013),
https://www.bjs.gov/content/pub/pdf/svpjri1112.pdf [hereinafter BECK ET AL., SEXUAL
VICTIMIZATION IN PRISONS AND JAILS].
186
Kim Shayo Buchanan, E-race-ing Gender: The Racial Construction of Prison Rape, in
MASCULINITIES AND THE LAW 187, 187 (Frank Rudy Cooper & Ann C. McGinley eds., 2012)
[hereinafter Buchanan, E-race-ing Gender].
187
Robinson, supra note 161, at 1350–51.
30
These prisoners are sometimes referred to as the “men” or “jockers” of the prison. 188 Those who
are penetrated, the “queens” or “punks,” are at the bottom of the prison hierarchy.189
“Queens” are prisoners who identify as gay or transgender and who are coerced into
having sex.190 Because of their sexual identity, they are already viewed as “women.” 191 For this
reason, both prisoners and prison staff often tell gay and transgender rape victims that they
wanted to be raped.192 In 2011–2012, “inmates who identified themselves as gay, lesbian,
bisexual, or ‘other’ were among those with the highest rates of sexual victimization.”193
Specifically, 12.2% of prisoners and 8.5% of jail inmates reported being victimized by another
inmate; 5.4% of prisoners and 4.3% of jail inmates reported victimizations by facility staff. 194
Among adult males who identified themselves as transgender, 39.9% of prisoners and 26.8% of
jail inmates reported being victims of sexual victimization.195
“Punks” are men who identify as heterosexual, but who are coerced into having sex.196
The status of punks is lower than the status of queens.197 This reduced status is because it is
believed that a “real man,” meaning a heterosexual man, does not allow himself to be penetrated
188
Id. at 1340. Other nicknames given to those on the top of the hierarchy are “wolves” or
“daddies.” Id. It is likely those incarcerated use nicknames that vary among prisons and jails and
that change over time.
189
Donaldson, supra note 179, at 119.
190
Id.
191
Id.
192
Buchanan, Our Prisons, Ourselves, supra note 176, at 32–33 (discussing that there tends to be
an assumption these prisoners consent to sex).
193
BECK ET AL., SEXUAL VICTIMIZATION IN PRISONS AND JAILS, supra note 185, at 7.
194
Id.
195
ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SEXUAL
VICTIMIZATION IN PRISONS AND JAILS REPORTED BY INMATES, 2011–12: SUPPLEMENTAL TABLES:
PREVALENCE OF SEXUAL VICTIMIZATION AMONG TRANSGENDER ADULT INMATES 2 tbl.1 (2014),
https://www.bjs.gov/content/pub/pdf/svpjri1112_st.pdf.
196
197
Id.
31
by another man.198 Instead a “real man” will fight to the death in order to avoid this
“dishonor.”199 If he is penetrated because he does not successfully avoid—or he does not die in
the attempt to avoid—the attack, he “deserves” to be penetrated and to be treated like a
“woman.”200
Interestingly, prisoners who have been convicted of rape by the legal system are also on
the lowest level of the prisoner gender hierarchy. 201 Inmates held for violent sexual offenses
report higher rates of inmate-on-inmate sexual victimization than those held for other offenses.202
While the rape of a woman certainly is a way for a man to assert his dominance over her, coerced
sex that has been legally punished is not an acceptable performance of masculinity. Only a man
who can obtain sex in acceptable normative, heterosexual ways is a “true man.”203
The role of “man” comes with responsibilities, however. If a man partners with another
prisoner for sex, he is expected to protect his feminized partner, or his “catcher,” from other
would-be attackers, sometimes at the cost of the man’s life.204 For this reason, some prisoners
submit to sex with a man in order to gain this type of protection.205 Catchers are often referred to
as “women” and “slave[s],”206 and in some cases, the catchers dress the part by wearing feminine
198
Id.
199
Terry A. Kupers, Rape and the Prison Code, in PRISON MASCULINITIES 113 (Don Sabo et al.
eds., 2001).
200
See Buchanan, Our Prisons, Ourselves, supra note 176, at 24–25.
201
SABO ET AL., supra note 159, at 9.
202
BECK ET AL., SEXUAL VICTIMIZATION IN PRISONS AND JAILS, supra note 185, at 6.
203
Carl Bryan Holmberg, The Culture of Transgression: Initiations into the Homosociality of a
Midwestern State Prison, in PRISON MASCULINITIES 90 (Don Sabo et al. eds., 2001).
204
205
Id.
206
SABO ET AL., supra note 159, at 11.
32
clothing and makeup.207 A catcher’s position is a vulnerable one. A “man” can decide at any time
to sell, rent, or trade his “woman” for contraband or money. 208 Also, because a prisoner’s
masculinity can be undermined at any moment, a catcher’s safety is quite vulnerable given his
partner’s tenuous status.
Rape victims who seek help from prison personnel find little sympathy and are told that
they should be “men” and fight off their attackers.209 African-American prisoners receive the
least amount of sympathy.210 Because “[b]lack men have long been stereotyped as super-
masculine: inhumanly strong, violent, animalistic, hypersexual, and ungovernable,” 211 they are
typically stereotyped as perpetrators, not victims.”212 Roderick Johnson, an African-American
gay man, was the victim of multiple prison rapes in the Texas prison system.213 Based on these
horrific experiences, he requested to be placed in safekeeping status when he was transferred to a
new unit.214 In response, a member of the Unit Classification Committee215, allegedly said,
“There’s no reason why Black punks can’t fight and survive in general population if they don’t
want to f***.”216
207
Kupers, supra note 199, at 116.
208
Donaldson, supra note 179, at 121–22.
209
Buchanan, E-race-ing Gender, supra note 186, at 200.
210
Buchanan, Our Prisons, Ourselves, supra note 176, at 67.
211
212
Buchanan, Our Prisons, Ourselves, supra note 176, at 67. This stereotype is turned on its
head in Pulp Fiction because the rape victim, Marsellus Wallace, is a muscular African-
American man and the perpetrator, Zed, is a smaller white man. Later in the scene, Wallace
reasserts his masculinity over Zed by first shooting him, and then, promising to bring in
associates to help torture and kill Zed. See Pulp Fiction, supra note 28.
213
Johnson v. Johnson, 385 F.3d 503, 512 (5th Cir. 2004).
214
Id. “Safekeeping . . . separates vulnerable individuals from more aggressive offenders.” Id.
Johnson had already been in safekeeping status at his prior prison location. Id. at n.1.
215
The Unit Classification Committee was responsible for determining his initial housing status.
Id.
216
Id. at 513.
33
Those who avoid rape, and particularly those who perform rapes, are rewarded with a
higher social status within the prison community.217 Indeed, prison personnel often turn a blind
eye to rapes, or may even help facilitate rapes in order to keep the top of the hierarchy happy and
cooperative.218 Staff members have also been known to purposely place “uncooperative”
prisoners in cells with known rapists in order to keep them in their place.219
Despite the general apathy toward prison rape, it has not been completely ignored. In
2003, President George W. Bush signed the Prisoner Rape Elimination Act (PREA).220
Although it was mostly “hortatory,” it did express the normative view that rapes in prisons are
wrong.221 Yet this statute is mostly focused on rapes that result from serious extrinsic
violence.222 Thus, it is somewhat acknowledged that a man may not be able to fight back in a
particularly brutal attack. In addition, because they are especially vulnerable, there have been
some attempts to place gay and transgender prisoners in separate units in order to protect them
from the general population.223
When extrinsic violence is not used, however, it is still assumed that a prisoner can fight
back. If the prisoner does not fight back, it is because he “chose” not to resist. There are two
217
218
Ristroph, supra note 33, at 182.
219
220
Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601–15609 (2012); see also Ristroph,
supra note 33, at 149.
221
Ristroph, supra note 33, at 175–76 (noting that the Act requires data collection, the review of
existing policies, and the eventual promulgation of national rape-prevention standards, but that
these standards should not cost prisons more than they currently spend).
222
42 U.S.C. § 15609(9)(A)–(C) (2012).
223
Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REV. 1, 87–91
(2011) (concluding that the segregation of gay and transgender prisoners might make sense as a
possible solution to prison rapes under some circumstances); but see Jeannie Suk, Redistributing
Rape, 48 AM. CRIM. L. REV. 111, 114–15 (2011) (questioning whether the segregation of gay and
transgender prisoners simply is a way to redistribute who gets raped in prison, not a way to
actually stop prison rapes).
34
potential reasons why there is such a limited view of coerced sex in prison. First, rape is still
viewed as part of a prisoner’s punishment for violating societal norms. Second, heteronormative
masculinity still defines who is perceived to be an agent, and agents are never victims. While
these two propositions are interrelated, they are still distinctive enough to be discussed
separately.
A. Rape as Punishment
Masculinities theorization of male prisoner rape demonstrates how law-breaking and the
state’s response to law-breaking are very much gendered. Indeed, during the 1960’s and 70’s
“the man,” was a popular slang term for the law and the police.224 When a man violates the law,
he is challenging the metaphorical “man,” in the form of the state. 225 Specifically, he is
exercising agency in a way that suggests that the state has no authority over him; instead his
actions challenge the hegemonic masculine hierarchy and assert that his masculinity is equivalent
or even superior to that of the state.
Race and class also play a role in this dynamic. One reason some men, particularly those
who are poor and of color, violate the law is because social, political, and economic conditions
limit their ability to perform hegemonic masculinity in the form of being a high-wage earner and
providing for one’s family.226 Unable to earn income in legal ways, men sometimes resort to
illegal means such as larceny and drug dealing to reassert their masculinity among their family
224
THE DICTIONARY OF AMERICAN SLANG 333 (Harold Wentworth & Stuart Berg Flexner Eds.,
1960).
225
See MacKinnon, Feminism, Marxism, supra note 178, at 644 (arguing that the state is male).
226
See James W. Messerschmidt, Masculinities, Crime, and Prison, in PRISON MASCULINITIES
68–69 (Don Sabo et al. eds., 2001).
35
members and other men in their communities.227 Men may also assert their masculinity through
violent crime.228
In response, the state places the law-breaker in a homosocial environment with severe
deprivations of privacy, autonomy, and liberty. In recent years, however, de-industrialization and
other economic conditions have made it such that for some marginalized and extremely
impoverished individuals, prison actually would provide better material conditions than
opportunities in the outside world would, if it were not for the constant threat of violence.229
Prison provides food, shelter, and nominal health care, all of which many poor men currently do
not have.230
For these reasons, Ahmed White has argued that violence and rape are essential
components of state punishment.231 The state places the law-breaker in prison and forces him to
show just how much of a man he is. Prisoners are expected to “man up” in this world and fight.
In other words, a person’s decision to violate legal norms leads to a state-controlled environment
in which he must exercise masculinity in a heightened form. If he fails to meet this heightened
standard, he may be subject to violence and rape with impunity.
A victim of prison rape can also feel his punishment in the form of apathy, contempt, and
sometimes even amusement when he is raped.232 Prosecutors and police officers often use the
threat of rape in prison in order to extract confessions and plea deals.233 Implicit in this conduct
227
See id.
228
Harris, supra note 148, at 789–92.
229
See White, supra note 33, at 738–39.
230
Id.
231
Id. at 739 (emphasis added).
232
See supra notes 31, 209-16 and accompanying text.
233
See Capers, supra note 26, at 1285–87.
36
is the notion that rape is part of the punishment of violating societal norms.234 Incarceration is the
first step in emasculation and then one may be further emasculated through rape.
It is important to note, however, that men also are raped outside of prison with little
empathy from legal actors and society.235 According to rape victims surveyed by the National
Institute of Justice’s National Violence Against Women, over fourteen percent of victims were
men.236 In addition, evidence suggests that more men than women are sexually assaulted in the
military.237 These statistics, which probably are underreported, should not be surprising. It is true
that prison rapes have unique and specific dynamics that relate to the experience of incarceration,
but even outside of prison, many men are constantly trying to maintain or improve their standing
in the gender hierarchy; violence, including rape, can be a way to prove one’s masculinity.
Many already know that rape is a reality in prison life, and they tacitly accept it as part of
a prisoner’s punishment. But the norm of masculinity is so strong in our society that it might be
hard for some to fathom how it is even possible for a man outside of prison to be raped, if he
does not actually want to have sex with another man. For these reasons, male rape victims often
get very little sympathy.238 Like victims of prisoner rape, they are told that they must have
234
Id. at 1262.
235
Id.
236
TJADEN & THOENNES, supra note 68, at 21.
237
Between August and September 2014, the RAND (Research And Development) National
Defense Research Institute conducted a survey of military service men and women and
concluded, with ninety-five percent confidence, 20,300 sexual assaults occurred with 10,600
men and 9,600 servicewomen. RAND CORP., SEXUAL ASSAULT AND SEXUAL HARASSMENT IN
THE U.S. MILITARY: VOLUME 2. ESTIMATES FOR DEPARTMENT OF DEFENSE SERVICE MEMBERS
FROM THE 2014 RAND MILITARY WORKPLACE STUDY xviii (Andrew R. Morral et al. eds., 2015),
https://www.rand.org/pubs/research_reports/RR870z2-1.html. One-third of the men described
their assaults as penetrative. Id. at 12.
238
37
wanted to have sex and that they must be gay.239 These attitudes could be punishment for
violating the norm of “allowing” oneself to be penetrated by another man.
B. Agents are Not Victims
The Prison Rape Elimination Act of 2003 (PREA) at least formally acknowledges that
there may be extreme contexts when prisoners can indeed be victims of rape. 240 Outside of the
use of extrinsic violence, however, coerced sex is simply not acknowledged. The previous
section argued that one reason for this lack of acknowledgment is probably because rape is still
viewed as part of a prisoner’s punishment for violating both the law and the societal norm of not
allowing oneself to be penetrated by another man. Another potential reason for this lack of
acknowledgement, however, is because agency is still defined in our society by hegemonic
masculinity norms. If one has a minimal level of capability to physically resist an attack, but he
does not physically resist, he has made a choice not to resist. This capability to make a choice
makes one an agent; agents are not victims.
However, this view of agency fails to take into account the hierarchical nature of
gendered relationships, also influenced by race, class, sexual orientation, and other identities.
This hierarchy creates a system where choices are often made under constrained, and sometimes
oppressive, circumstances.241 As already discussed, masculinity itself is an unstable identity that
can be undermined at any minute. Moreover, while achieving dominance through violence may
be viewed as the ultimate performance of masculinity, not all biological men want to or are
capable of performing masculinity in this way. Not all men are fighters or similarly situated in
239
Id. at 1274.
240
See Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601–15609 (2012).
241
See Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95
COLUM. L. REV. 304, 304–07 (1995) (theorizing that women have “partial agency”).
38
their ability to fend off a potential attack; the physical capability of a man to stop a rape is likely
overestimated in some, if not many, cases.
Moreover, the gendered conditions of prison life are constructed so that sex can be
coerced without actual or explicitly threatened extrinsic violence. If a large, well-known “man”
or “jocker” approaches a smaller or more peaceable man for sex, the jocker may not have to use
violence or even to threaten violence. Instead, the more peaceable prisoner might realize that
resistance could be costly for him. If he is not a good fighter, he could potentially put himself in
physical danger with this jocker. But even if he is able to thwart this potential attacker, he still
has to think about his situation for the rest of his prison term. Perhaps other prisoners will be
afraid of him and leave him alone. In the alternative, if some prisoners feel that he is threatening
their masculinity, he could become a target for future attacks. A man in this position might
decide that it is better under these circumstances to submit to sex in order to avoid perpetual
future violence. Not only might he avoid violence from this specific jocker, but also this jocker
potentially can protect him from violence from others.
PREA does not address situations when a prisoner theoretically is capable of fighting
back.242 One possible reason for this silence is an implicit assumption that unless fighting back is
nearly impossible, the prisoner should at least try to fight back if he does not want to have sex.
This is a very masculine view of agency: one should always fight back when one can because the
ultimate goal is not just to survive, but to dominate. Making a calculated choice to submit based
on constrained circumstances is simply not what masculinity is about.
Another potential reason for silence regarding coerced, but nonviolent sex, could be that
it can sometimes be difficult, from a legal perspective, to determine when consent ends and
242
See Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601–15609 (2012).
39
coercion begins.243 Furthermore, not all undesired sex can or should be regulated by the law. As
a normative matter, however, we should still be troubled by the amount of undesired sex that
seems to be happening both inside and outside of prison, even if we do not want to define all of
this conduct as “rape.”
An examination of the current gendered system, in which some men experience rape or
undesired sex, can also provide important insights into the current gendered system in which
women experience rape or undesired sex. As the last section discussed, many feminists believed
it important for the law to incorporate the experiences of sex and coercion from the perspective
of women. Current gender norms, however, are not necessarily aligned with the norms
incorporated in feminist legal reforms.
One possible explanation for this lack of alignment could be that as women have gained
more access to educational and career opportunities, many have tended to embrace some of the
norms of masculinity, not the “woman’s” perspective that feminists sought to explicate. As a
result, young women are now expected to walk a very thin line between the masculine and the
feminine, and they can be punished for not conforming to both sets of norms simultaneously.
Moreover, as young women embrace more masculine norms, just as is the case with some men,
the constrained circumstances under which some women have sex often remain hidden. In the
next section, I use literature on the current hookup culture to explore these ideas further.
IV. IT’S COMPLICATED: THE THIN LINE BETWEEN THE MASCULINE AND THE FEMININE
Women have more opportunities than ever before. More women than men are currently
enrolled in institutions of higher learning,244 and many women, particularly those of the middle-
243
See supra notes 136–40 and accompanying text.
244
Mark Hugo Lopez & Ana Gonzalez-Barrera, Women’s College Enrollment Gains Leave Men
Behind, PEW RESEARCH CTR. (Mar. 6, 2014), http://www.pewresearch.org/fact-
40
and upper-classes, now choose to postpone or even forego marriage and family in pursuit of
high-powered careers.245 In addition, the current “hook up” culture suggests that women are now
just as free as men to seek out and enjoy sex outside of a monogamous relationship.246
Feminists have often argued that the inclusion of the real-life narratives of women’s
experiences in law and society is an important step toward equality. 247 But as the next section
will discuss, instead of encouraging men to think and act more like women, the current hookup
culture seems to encourage women to think and act more like men. As a result, because the male
world is still very much gendered, women find that rape still can be punishment for not
conforming to more traditional gender roles. In addition, as some women embrace a more
heteronormatively masculine view of agency, the constrained circumstances that might lead a
woman to resist undesired sex remain hidden. In other words, because heteronormative
masculinity is still valorized in our society, women now must navigate norms that are quite
complicated and sometimes even contradictory; they often find that they must walk a fine line
between the masculine and the feminine.
A. Masculinity and the “Hook Up” Culture
One could argue that the prevalence of the hookup culture is an indication that there has
been a shift in gender expectations and norms. While the term “hookup” is somewhat vague, it
generally seems to mean a casual encounter that involves some type of sexual contact including
tank/2014/03/06/womens-college-enrollment-gains-leave-men-behind/. In 2012, 61% of recent

male high school graduates were enrolled in college while 71% of women were enrolled. Id.
245
Laura Hamilton & Elizabeth A. Armstrong, Gendered Sexuality in Young Adulthood: Double
Binds and Flawed Options, 23 GENDER & SOC’Y 589, 602–03 (2009).
246
247
See supra note 77 and accompanying text. But see Robin L. West, The Difference in Women’s
Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 WIS. WOMEN’S L.J.
149, 154 (2000) (arguing that while feminists and feminist lawyers have achieved in providing
rich descriptions of women’s subjective lives, feminist legal theorists have not because they are
too focused on objective concepts, like equality and power).
41
kissing, heavy petting, and sometimes intercourse. 248 It has been documented that many young
women participate in these encounters,249 which suggests women now have greater opportunities
to seek out and enjoy sex outside of a monogamous relationship and without judgment.
The truth is, however, that the heteronormative norm of masculinity is still alive and well
in hookup culture. Some empirical research suggests that hookups are more about men’s
relationships with each other than about their relationships with their hook up partners.250 Indeed,
for some men, the actual sexual encounter pales in comparison to the opportunity to brag about
that experience.251 In one study, a college junior confided:
When I’ve just got laid, the first thing I think about—really, I shouldn’t be telling
you this, but really it’s the very first thing, before I’ve even like ‘finished’—is
that I can’t wait to tell my crew who I just did. Like, I say to myself, “Omigod,
they’re not going to believe that I just did Kristy . . . . Like I just know what will
happen. They’ll all be high fiving me and shit. And Kristy? Uh, well, she’ll
probably ask me not to tell anyone, you know, to protect her reputation and all.
But, like, yeah, right. I’m still gonna tell my boys.252
A fraternity member at another university reported:
I mean, you tell your friends you hooked up with Melissa, and they’re like, ‘whoa,
dude, you are one stud.’ So, I’m into Melissa because my guy friends think she is
so hot, and now they think more of me because of it. It’s totally a guy thing . . . .
Don’t get me wrong . . . . I mean, yeah, Melissa is very nice and blah blah blah. I
like her, yeah. But . . . . the guys think I totally rule.253
248
Rachel Kalish & Michael Kimmel, Hooking Up: Hot Hetero Sex or the New Numb
Normative?, 26 AUSTRALIAN FEMINIST STUD. 137, 140 (2011).
249
Hamilton & Armstrong, supra note 245, at 605 (arguing that high rates of hookups suggests
that women are genuinely interested in hooking up and that they are not merely accommodating
men’s desires).
250
Kalish & Kimmel, supra note 248, at 144–45.
251
Id.
252
Id. at 144–45.
253
Id. at 145.
42
These narratives suggest that hookups, particularly with a partner that other men find “hot,” are a
way for men to dominate other men and maintain their status in the masculinity hierarchy.254
Indeed, one advantage of the vagueness of the term “hookup” is that it allows men to suggest that
they had sexual intercourse, even if they actually did not.255
Research suggests that men also tend to overestimate how much other men are having
sex.256 In one study, college men estimated that eighty percent of their male peers were having
sex on any given weekend on their campus.257 In reality, only five to ten percent of men on
campus were having sex on any given weekend.258 Thus hookup culture, or rather men bragging
about their hookups, tends to distort reality to such a degree that men think that everyone else is
having sex all of the time. This distortion can create a lot of pressure to keep up in order to
compete and maintain one’s masculinity.259 It can also create a high degree of insecurity in a
man’s masculinity if he feels like he is the only one not having sex.260
Research also suggests that in addition to trying to impress other men, the goal of many
of these encounters is the physical pleasure of the man, not the woman.261 While some men
express anxiety about performing well sexually, this anxiety seems more related to a concern
about getting a bad reputation as a bad lover rather than related to a concern about pleasing one’s
254
Id.
255
Id. at 141–42.
256
Kalish & Kimmel, supra note 248, at 147.
257
Id.
258
Id.
259
Id.
260
Id.
261
Elizabeth A. Armstrong et al., Accounting for Women’s Orgasm and Sexual Enjoyment in
College Hookups and Relationships, 77 AM. SOC. REV. 435, 456–57 (2012) [hereinafter
Armstrong et al., Women’s Orgasm].
43
partner.262 Furthermore, research suggests that many women in hookups feel that their role is to
please their partners, even if they do not personally enjoy the sexual experience. 263 Women
report faking orgasms so as not to embarrass their partners.264 They also report hesitancy in
telling their partners how they might help the women enjoy the encounter more.265 Some women
seem to feel that they are not even entitled to seek out pleasure from these encounters.266
Thus, instead of providing a level playing field with respect to casual sexual
relationships, hookups seem to be another iteration of the heteronormative gender hierarchy with
masculinity at the top. First, men feel pressure to constantly seek out sex to prove their
masculinity to other men. Second, women’s pleasure is subordinated to men’s. In this type of
culture, there is a high risk that some men will willingly push beyond their partners’ boundaries
out of a desire to prove their masculinity through sexual conquests and bragging rights. In
addition, because the focus of hookups is on men’s desires, some men may not be paying
attention to their partners’ cues when certain sexual contact is not only unenjoyable, but it is also
undesired. The St. Paul’s case is a helpful case study of this dynamic.
In the spring of 2014, eighteen-year-old Owen Labrie had a very bright future ahead of
him.267 Although he came from a family of divorced parents of modest means, he attended a
262
Kalish & Kimmel, supra note 248, at 146–47. Research also suggests, however, that men do
feel that they should try to please their partners when they are in monogamous relationships.
Armstrong et al., Women’s Orgasm, supra note 261, at 455–56. Under those circumstances,
pleasing one’s partner is viewed as “masculine.” Id. at 456.
263
Armstrong et al., Women’s Orgasm, supra note 261, at 456–57; Kalish & Kimmel, supra note
248, at 147.
264
265
Armstrong et al., Women’s Orgasm, supra note 261, at 23.
266
Id.
267
Bidgood & Rich, supra note 119.
44
prestigious boarding school on scholarship.268 Moreover, Labrie excelled in this environment: he
was a popular honors student who was captain of his soccer team. 269 He had even won an award
for his character.270 Upon graduation from St. Paul’s, he had been admitted into Harvard with
plans to attend its divinity school and to become a minister after college.271
Facts from this case suggest, however, that Labrie may have been extremely popular at
his school in part because he appeared to perform masculinity very well. After the alleged rape,
he told the police that he was “trying to be No. 1 in the sexual scoring at St. Paul’s School.”272
The seniors allegedly kept score on a wall behind a set of washing machines.273 At trial, Labrie
testified that scoring did not necessarily mean sex, but rather the term was “’synonymous with
dating.’”274 Yet messages between Labrie and his friends showed that they often referred to
“slaying” and “pork[ing]” girls,275 which seems to belie his suggestion that the goal was
something less than sexual conquest. During his final weeks at school before graduation, Labrie
sent the following message to his friends: “Welcome to an eight-week exercise in debauchery, a
268
Jess Bidgood, St. Paul’s Student Takes the Stand, Denying Rape, N.Y. TIMES (Aug. 27, 2015),
https://www.nytimes.com/2015/08/27/us/owen-labrie-st-pauls-student-accused-of-rape-takes-
the-stand.html [hereinafter Bidgood, St. Paul’s Student].
269
Id.
270
Id.
271
Id.; Bidgood & Rich, supra note 119.
272
Bidgood & Rich, supra note 119; see also Lynne Tuohy, Former Student at Elite Prep School
Convicted of Sex Charges, SEATTLE TIMES (Aug. 28, 2015, 6:37 PM),
http://www.seattletimes.com/nation-world/former-prep-school-student-convicted-of-
misdemeanor-sex-charges/.
273
Tuohy, supra note 272.
274
Bidgood, St. Paul’s Student, supra note 268.
275
Bidgood & Rich, supra note 119 (discussing how Labrie and his friends used the phrase
“slaying” when discussing their interactions with girls); Jess Bidgood, Owen Labrie of St. Paul’s
School is Found Not Guilty of Main Rape Charge, N.Y. TIMES (Aug. 28, 2015),
https://www.nytimes.com/2015/08/29/us/st-pauls-school-rape-trial-owen-labrie.html [hereinafter
Bidgood, Found Not Guilty] (discussing how Labrie and his friends used the work “pork” when
discussing their interactions with girls).
45
probing exploration of the innermost meanings of the word sleaze bag . . . [c]an sisters be slain in
the same evening?”276
It was during this period of time that Labrie made a list of St. Paul’s students as potential
participants in the “senior salute.”277 This school ritual involved a senior student asking younger
students to go for a walk, a kiss, or even engage in sexual intercourse. 278 His accuser’s name
appeared on this list in capital letters.279 Labrie sent his accuser an e-mail asking her to
participate in the senior salute, and she originally refused to join him.280 According to his
interviews with police, he found the accuser’s rejection to be “sassy.”281 Labrie then asked a
282
mutual friend to serve as an intermediary to try to convince her. To help change her mind, he
also responded to the accuser’s initial refusal with an e-mail that was partially written in
French.283
At trial, Labrie denied that he had engaged in sexual intercourse with the accuser.284
Instead, he alleged that the two had rolled around in their underwear, giggling, kissing and
touching.285 He admitted that he might have aggressively kissed the accuser’s breasts and that he
might have gotten “a little carried away.”286 He further testified that early in the encounter, “I
276
277
278
Id.
279
Id.
280
Id.
281
282
283
Jess Bidgood, In Girl’s Account, Rite at St. Paul’s Boarding School Turned Into Rape, N.Y.
TIMES (Aug. 19, 2015), https://www.nytimes.com/2015/08/20/us/in-st-pauls-rape-trial-girl-
vividly-recounts-night-of-school-ritual.html [hereinafter Bidgood, In Girl’s Account].
284
285
Id.
286
Id.
46
thought she was having a great time,” but he admitted that the encounter ended awkwardly. 287 He
testified that it was this awkward ending that led him to tell his friends that he and the accuser
had had sex.288 He testified that it was easier to satisfy his friends’ expectations.289 “I wanted to
look good,” [Labrie stated at trial] “I wanted everyone to think that it had gone great.” 290 In one
Facebook exchange, one of Labrie’s friends asked, “‘How’d it go from no to bone?’ Labrie
replied: ‘[j]ust pulled every trick in the book.’”291
Based on his own testimony, Labrie was motivated less by any attraction he might have
had for his accuser than by his desire to impress his friends. 292 Indeed, Labrie ultimately denied
that he and his accuser had had sex,293 yet he still told his friends that he had “pulled every trick
in the book” to get her to go “from no to bone”294 so that he could “look good.”295 His actions
show that he was quite aware of the vulnerability of his masculinity. Labrie might have felt
particularly vulnerable because he did not have the family wealth that many of his classmates
did. Perhaps his lack of wealth explains why he sometimes seemed to be the ringleader of the
hypermasculine behavior displayed among his groups of friends through their bragging about
“slaying” and “porking” girls.
New Hampshire is a jurisdiction that does not require a showing of force to establish
rape. Instead, sexual assault is established when there is penetration and “the victim indicates by
287
Id.
288
Id.
289
Id.
290
291
Lizzie Crocker, Was It Sex or Rape at St. Paul’s?, DAILY BEAST (Aug. 26, 2015, 1:00 AM),
http://www.thedailybeast.com/articles/2015/08/26/was-it-sex-or-rape-at-st-paul-s.html.
292
Bidgood, St Paul’s Student, supra note 268.
293
Id.
294
Crocker, supra note 291.
295
47
speech or conduct that there is not freely given consent….”296 In Labrie’s case, the jury
determined that the prosecution had not proven that his encounter with the accuser was
nonconsensual beyond a reasonable doubt.297 The jury also, however, did not seem to believe
Labrie’s testimony that he did not have sex with the accuser; instead, they found him guilty of
having sex with a girl who was below the age of consent.298
Yet, even if Labrie’s version of events were true, he still admitted that he might have
gotten “a little carried away” and aggressive during the encounter.299 He also admitted that
although he initially thought his accuser was enjoying their make-out session, the encounter
ended awkwardly. No one other than Labrie and the accuser will ever truly know what happened
that evening, but the worst-case scenario is that the two had sex without the accuser’s consent.
Unfortunately, the best-case scenario does not seem great either—an encounter that got too
aggressive from the perspective of the accuser and that ended awkwardly for both participants. In
both scenarios, masculinity played a key role. Obviously, Labrie had complete control over his
actions that evening; acknowledging the role of masculinity in this encounter is not meant in any
way to excuse his actions. But it is clear that the vulnerability of his masculinity, his desire to be
number one in sexual conquests, and a culture where the masculinity and desires of men trump
the desires of women created an atmosphere where “scoring” became Labrie’s main motivation;
communication, reciprocity, and sharing played little or no role in this encounter.
B. Rape as Punishment
296
N.H. REV. STAT. ANN. § 632-A:2.I(m) (2016).
297
Bidgood, Found Not Guilty, supra note 275.
298
Id.
299
48
By noting that heteronormative masculinity plays a key role in hookup culture, I do not
mean to suggest that there has been absolutely no change in gender roles over the last few
decades. It is clear that there have been changes, but the persistence of certain masculinity norms
has created a new world of complicated and often contradictory gender expectations for women.
On the one hand, while it used to be the case that women were expected to refrain from sex until
after they were married, evidence suggests that society no longer judges women harshly for
engaging in premarital sex.300 It is also clear that many women are embracing a hookup culture
that allows them to enjoy casual sex without the encumbrances of a serious relationship or
marriage.301 Women report that, like men, they find this arrangement advantageous so that they
can focus more of their time on their educations and the beginning of their careers. 302
Furthermore, despite the fact that many women discount the importance of their enjoyment
during hookup encounters, there still are some women who report that they do seek out and get
pleasure for themselves.303 Some women also report using their conquests as trophies in the same
way that men do.304
Yet double-standards still exist. I have already discussed how women’s desires are often
subsumed under those of men. In addition, while it is generally somewhat acceptable for women
300
Armstrong et al., Women’s Orgasm, supra note 261, at 438. Evidence also suggests, however,
that women are judged more harshly if the premarital sex is outside of a monogamous
relationship. Id.
301
Hamilton & Armstrong, supra note 245, at 602–06.
302
Id.
303
Id. at 605. But see Sara I. McClelland, Who is the ‘Self’ in Self Reports of Sexual Satisfaction?
Research and Policy Implications, 8 SEXUALITY RES. & SOC. POL’Y 304, 313 (2011) (suggesting
that when some women say they enjoyed a sexual encounter, they actually meant that they
enjoyed it because their partners did).
304
See Elizabeth L. Paul & Kristen A. Hayes, The Casualties of ‘Casual’ Sex: A Qualitative
Exploration of the Phenomenology of College Students’ Hookups, 19 J. SOC. & PERS.
RELATIONSHIPS 639, 653 (2002) (quoting one such woman, “I was pretty happy…enjoying the
fact that the hottest guy at the party was kissing me. I felt like I had just won a game or
something.”).
49
to engage in hookups, they are not supposed to engage in “too many” hookups.305 For this reason
the vagueness of the term “hookup” is just as advantageous for women as it is for men. While it
allows men to suggest that they had sex, it allows women to suggest that they did not. 306
If a woman who has had too many hookups gets raped, she is sometimes perceived as
being at fault. In a focus group of college senior women in one study, the women discussed a
friend, Amy.307 They described an occasion when she came out of the bathroom at a small
fraternity gathering; she was crying.308 Amy told her friends “that a guy ‘had her by her neck,
holding her up, feeling her up from her crotch up to her neck and saying that I should rape you,
you are a fucking whore.’”309 Amy’s friends reported being appalled and stated that “’no one
deserves that.’”310 Yet, “[o]n [the] other hand, they explained that: ‘Amy flaunts herself. She is a
whore so, I mean . . .’ They implied that if one is a whore, one gets treated like one.”311
This attitude is nothing new. Historically only a “real” woman could be raped. A “real”
woman is chaste, passive and innocent.312 In other words, she knows her place in the gender
hierarchy. She does not get drunk.313 She definitely does not act in a sexually aggressive
manner.314 Furthermore, a “real” woman historically has been white.315
305
See Hamilton & Armstrong, supra note 245, at 598; Kalish & Kimmel, supra note 248, at
142.
306
307
Armstrong et al., Multilevel, Integrative Approach, supra note 134, at 493.
308
Id.
309
Id.
310
Id.
311
Id.
312
See Gruber, War on Crime, supra note 114, at 623.
313
Baker, Once A Rapist?, supra note 115, at 589.
314
See Gruber, War on Crime, supra note 114, at 595; Deborah Tuerkheimer, Judging Sex, 97
CORNELL L. REV. 1461, 1487–93 (2012).
50
On the surface, greater access to educational and career opportunities has, in some ways,
allowed greater access to more sexual freedom with less judgment for women. But instead of
figuring out on their own terms what sexual freedom might look like, as feminists might
encourage, some young women seem to be embracing sexual freedom on traditionally male
terms. Masculinities theorization teaches us, however, that the masculine world is still very much
gendered and hierarchical.316
Thus, women in the current hookup culture must walk a very narrow line between the
masculine and feminine. On the one hand, the hookup culture seems to be a world where women
can be in charge of their own sexuality. As is the case with some men, some women view the
right partner as one’s “trophy” or a “notch in the belt.”317 In addition, the mainstreaming of
“raunch culture” encourages young women to express themselves in provocative ways, including
the way they dress.318
315
African-American women traditionally have been stereotyped as oversexed, promiscuous,
over-emotional, loud, and angry. See Cheryl Nelson Butler, A Critical Race Feminist Perspective
on Prostitution & Sex Trafficking in America, 27 YALE J.L. & FEMINISM 95, 126–27 (2015). The
stereotype of the “Jezebel” legitimized white slave owners’ rapes of African-American female
slaves. See id. Based on Jezebel from the Bible, African-American women were stereotyped as
lustful and sexually immoral. Id. at 127. As a result, African-American women were deprived of
the legal protection of rape statutes, even post-slavery, under the theory that they always
consented to sex. THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW 1619–1860 305
(1996); Jennifer Wriggins, Note, Rape, Racism, and the Law, 6 HARV. WOMEN’S L.J. 103, 106–
07 (1983). If they always consented to sex, then they could never be legally raped. The police
still routinely do not believe African-American women when they report a rape because of
stereotypes of promiscuity. Id. at 122. Men of all races convicted of raping African-American
women are punished less severely than those convicted of raping white women. Baker, Once A
Rapist?, supra note 115, at 595. Other women of color, including Latina, Asian, and Native
American women, also suffer from sexual exploitation due to similar stereotypes. Butler, supra
note 149, at 127–28.
316
See supra Part III.
317
Paul & Hayes, supra note 304, at 653.
318
See Baker & Oberman, Women’s Sexual Agency, supra note 73, at 93–94.
51
But instead of dressing provocatively to express their own sexual identity, many dress
that way in order to attract the right men.319 Yet, they cannot dress too provocatively or they
320
might be labeled a “slut,” or worse, “rapeable.” In addition, men are the ones who are
supposed to ultimately initiate sexual contact.321 In this world of seemingly overt sexuality, a
woman must still maintain the appearance of virtue and follow traditional gendered scripts when
it comes to sexual encounters. Despite the fact that the hookup culture purports to eschew
traditional gender norms, women find that they still can be punished when they fail to conform to
these norms.
C. Agents Are Not Victims.
The previous section argued that while many young women embrace the hookup culture
as much as men, they find that they must remain feminine enough so that they do not “deserve”
rape. Women also find tension between the masculine and the feminine when it comes to their
expressions of agency. Traditionally, rape victims were expected to be complete agents by
physically resisting their attackers to their utmost.322 It was the woman’s job to keep the man’s
sexual appetite in check.323 In her critique of the law, Susan Estrich famously compared the
treatment of victims of rape with victims of theft.324 She argued, “[I]f a thief stripped his victim,
flattened that victim on the floor, lay down on top, and took the victim’s wallet or jewelry, few
would pause before concluding forcible robbery.”325 In contrast, de facto and de jure physical
319
See Armstong et al., Multilevel, Integrative Approach, supra note 134, at 488.
320
See id. at 488, 493.
321
322
323
324
ESTRICH, REAL RAPE, supra note 23, . at 59.
325
Id.
52
resistance requirements make it so that an analogous situation in the context of sexual intercourse
is often not legally defined as rape. One explanation for this distinction is that this scenario can
be quite consistent with a consensual sexual encounter. Estrich argues, however, that the physical
resistance requirement is a male standard that requires women to act like boys challenged in a
school yard fight.326
In other words, the traditional legal definition of rape incorporates a heteronormative
masculine view of agency: if you can fight back, you should fight back. Some feminists argue
that this perspective reinforces a gendered social and legal system that is maintained through
violence and aggression. Some propose that the reason why empirically many rape victims do
not physically resist their attackers is because gendered social, political, and economic conditions
often make this decision a rational one.327 Susan Brownmiller argued that rape is “a conscious
process of intimidation by which all men keep all women in a state of fear.”328 Under this view,
women are always aware of the constant threat of rape and other forms of violence at the hands
of men because men have historically maintained their status at the top of the gender hierarchy
by performing acts of violence. This awareness is heightened by the fact that, in most cases, a
male perpetrator is most likely physically larger than the woman. For these reasons, some
feminists argue that a woman may rationally be hesitant to physically resist a potential rapist out
of fear that she could experience even more injury, or death. Other feminists argue that women
are socialized into believing that it is safest not to physically resist, 329 and some discuss whether
326
Estrich, Rape, supra note 54, at 1105–06.
327
See ESTRICH, REAL RAPE, supra note 23, at 22. See also Capers, supra note 26, at 1277
(noting that many male victims of rape also do not physically resist their attackers).
328
BROWNMILLER, supra note 23, at 5; see also MACKINNON, supra note 23, at 172 (arguing that
“rape is . . . an act of terrorism and torture within a systemic context of group subjection, like
lynching”).
329
53
women should take this submissive stance.330 Many feminists conclude, however, that even if
many women suffer less injury when they fight their rapists, a woman should not be penalized
because she makes the calculated decision that fighting is not in her best interest during a
particular sexual encounter.331
Yet, as has been discussed, some young women in the current hookup culture seem to be
embracing masculine norms, rather than exploring their experiences from a more woman-
centered perspective. Many women believe that if there is a possibility that a woman could have
stopped an undesired sex, then she was not raped.332 They often blame themselves and others for
making “mistakes” that led to the undesired sex.333 This may include drinking an excessive
amount of alcohol, accepting a beverage without knowing its content, spending time with a
questionable partner, and not staying with friends at a party. 334 Women sometimes believe they
were not raped even under circumstances where the law actually defines their encounters as
rape.335
One could argue that this discordance between how the law defines rape and how some
women actually define rape for themselves does not suggest a problem on the part of the women
and their perspectives; instead, it suggests a problem with the law. Have feminist reforms led the
law to over-criminalize or overregulate sexual behavior that most people in society do not
330
See Anderson, supra note 80, at 960; Capers, supra note 26, at 1307.
331
Cf. Estrich, Rape, supra note 54, at 1182–83 (arguing “’consent’ should be defined so that ‘no
means no’”); see also Anderson, supra note 80, at 960 (“With the benefit of numerous studies
revealing that resistance can deter rape without increasing the serious bodily injury to the victim .
. . . [a] rape victim’s resistance to sexual attack should not be required by rape law . . . .”).
332
See Baker & Oberman, Women’s Sexual Agency, supra note 73, at 94.
333
See Armstrong et al., Multilevel, Integrative Approach, supra note 134, at 493.
334
See id.
335
Baker, Not (Always) Be a Crime, supra note 100, at 255–56.
54
actually want criminalized or regulated?336 In addition, even if these women’s perspective of
agency is even more “masculine” than the law’s view, perhaps this perspective has some
psychological benefits—women can feel that they are in control of what happens to them,
instead of feeling like helpless victims.337
Yet, masculinities theorization shows that the heteronormative masculine view of agency
can sometimes be problematic. As already discussed, it is often unrecognized that not every man
is capable of fighting off his attacker.338 Thus, it should be expected that if it is the case that
hookup culture encourages young women to embrace heteronormative masculine norms,
including physical resistance, their physical ability to resist potential attackers might also be
overestimated in some cases.
With respect to Labrie’s accuser, she testified that she “felt ‘frozen.’”339 She testified, “I
tried to block out the feeling as much as I could . . . I didn’t want to believe this was happening
to me.”340 She also said she felt powerless.341 These are common emotions expressed by some
rape victims. Some freeze up when they encounter an attacker.342 Some dissociate from the
moment and try not to believe that they are actually being raped both during the rape and
336
See generally Gruber, Anti-rape Culture, supra note 68 (cautioning that the ubiquitousness of
rape on college campuses might be overstated if anti-rape activists are conflating suboptimal
drunken sex with rape).
337
Baker, Not (Always) Be a Crime, supra note 100, at 258 (arguing that “[g]iven that rape's
injury is so dependent on the psychological and cultural construction of sex, there are powerful
reasons to resist thinking of oneself as having been raped”).
338
Id.
339
340
Id.
341
See Jess Bidgood, In Girl’s Account, Rite of St. Paul’s Boarding School Turned to Rape, N.Y.
TIMES (Aug. 19, 2015), https://www.nytimes.com/2015/08/20/us/in-st-pauls-rape-trial-girl-
vividly-recounts-night-of-school-ritual.html.
342
Sarah E. Ullman & Raymond A. Knight, Women's Resistance Strategies to Different Rapist
Types, 22 Crim. Just. & Behav. 263, 280 (1995). But see generally Yxta Maya Murray, Rape
Trauma, The State, and the Art of Tracey Emin, 100 CALIF. L. REV. 1631, 1633–35 (2012)
(describing Rape Trauma Syndrome and feminist critiques of the use of this evidence).
55
afterward.343 It is important to note that this reaction occurs in both male and female rape
victims.344
A more heteronormative masculine perspective on agency also minimizes the force that
perpetrators sometimes use in order to get sex. For example, in the college fraternity context,
“[g]etting women drunk, blocking doors, and controlling transportation are common ways men
try to prevent women from leaving sexual situations.”345 By focusing only on how women
allowed themselves to get into these situations, we are not focusing on the fact that men should
not act like boors in order to obtain sex. Regardless of whether we want to legally regulate this
type of behavior, we should still find this conduct normatively problematic if it increases the
occurrence of undesired sex.
Furthermore, the more we embrace masculine views of agency, the more women may
find it worthwhile to submit to undesired sex in order to survive and thrive in a heteronormative
paradigm. This proposition should not be surprising given the realities of the masculinity
hierarchy; sometimes, submission is also prudent even for men.346 Women are expected to strive
for the same level of education and career success as men do. 347 Yet, it also can be the case that
“[w]omen who succeed are punished for abandoning their femininity—rejected as potential
partners, labeled as ‘dykes,’ left off the invitation lists.”348
In contrast, a woman’s status can sometimes be bolstered by attracting, gaining the
approval of, and pairing up with the “right” partner. In his book about St. Paul’s, Khan discusses
343
JUDITH LEWIS HERMAN, TRAUMA & RECOVERY 43 (1992).
344
345
346
See supra Part III.
347
Hamilton & Armstrong, supra note 245, at 593.
348
KIMMEL, supra note 154, at 17.
56
the significance of the “Screw,” one of the big dances that occurs during the school year.349 For
this dance, seniors set up dates for the new students.350 Girls are valued based on their
desirability on the “screw” market; interest from desirable older boys increases one’s value on
the market.351 Moreover, one’s value on the market not only establishes the higher status of the
girl, but it also can establish the higher status of the residence hall where the girl lives.352
It was in this environment that Labrie’s accuser agreed to participate in the senior salute.
It is not clear why the accuser initially refused Labrie’s invitation to join him. What is clear is
that she ultimately felt flattered and “special” because a popular boy, who performed masculinity
well, was interested in her. At the trial, the accuser, who was a fifteen-year-old freshman at the
time of the alleged rape, testified that a friend made her wonder whether she had been too harsh
in initially refusing his invitation.353 She also was influenced by a mutual friend who urged her to
reconsider the invitation.354 She said, “[h]ere’s a person who paid special attention to me . . . .
How nice.”355 The accuser ultimately agreed to meet with Labrie.356 She testified that she
thought she and Labrie would kiss but not much more.357 She thought “‘it would be cool’ to go
to a new place on campus with ‘one of the most popular boys.’”358 Yet, in addition to being
349
KHAN, supra note 166, at 128.
350
Id.
351
Id.
352
Id.
353
354
Id.
355
Id. Labrie sent a message to this friend, who helped convince the accuser to meet with him,
stating that he owed the friend “10,000 sexual favors.” Bidgood, St. Paul’s Student, supra note
268.
356
See id.
357
Bidgood, In Girl’s Account, supra note 283. A friend apparently asserted, however, that the
accuser had considered the possibility of engaging in oral sex prior to her encounter with Labrie.
57
conscious of Labrie’s popularity, she was conscious that she needed to consider her reputation
and asked Labrie that the meeting be their “petit secret.”359
The accuser testified that the two headed to a rooftop to take in a view of the campus.360
Labrie then took the accuser to a machine room and they began to kiss.361 Older students at St.
Paul’s passed around the key to the room in order to have a space where one could obtain
privacy.362 The accuser did not protest when Labrie kissed her.363 She claimed that Labrie then
groped her, bit her on the chest, and tried more than once to remove her underwear. 364 She
testified, “’I said, ‘No, no, no, keep it up here,’” gesturing above her waist.365 She alleged that
“she said ‘no’ three times.”366 She further testified that at some point Labrie spit on her and
called her a tease.367
I have already discussed how some of the accuser’s testimony suggests that she did not
resist Labrie because she was not physically capable of resisting him.368 But some of her
testimony suggests that something more might have been going on.(cite needed) If a girl’s status
358
Bidgood, In Girl’s Account, supra note 283.
359
Jess Bidgood, Accuser in St. Paul’s Rape Case Defends Account in Cross-Examination, N.Y.
TIMES (Aug. 20, 2015), https://www.nytimes.com/2015/08/21/us/st-paul-school-rape-case-owen-
labrie.html [hereinafter Bidgood, Defends Account]. Labrie later testified that he was told that
she wanted their encounter to be a secret because she did not want him gloating to her older
sister, who previously had dated Labrie for about a week. Bidgood, St. Paul’s Student, supra
note 268. It is not clear who, if anyone, told him this information.
360
361
Id.
362
363
See Bidgood, Found Not Guilty, supra note 275.
364
Id.; Bidgood, In Girl’s Account, supra note 283.
365
366
Emily Bazelon, The St. Paul’s Rape Case Shows Why Sexual-Assault Laws Must Change,
N.Y. TIMES MAG. (Aug. 26, 2015), http://www.nytimes.com/2015/08/26/magazine/the-st-pauls-
rape-case-shows-why-sexual-assault-laws-must-change.html?_r=0.
367
368
See supra notes 339-41 and accompanying text.
58
at St. Paul’s is determined at least in part by her attractiveness to popular (and masculine) boys,
what happens if she physically resists one of these boys’ advances? Ideally, he will respect her
wishes and stop his advances. But if his vulnerable masculinity is determined by his ability to
“score,” what if he becomes upset or embarrassed? If he walks away displeased, how will his
feelings affect how others see her? Will she now be viewed as a tease? 369 Will other popular
boys no longer find her worth pursuing? Does she really want to risk alienating herself in a world
where this boy’s opinion matters? In addition, given the importance of social networks at a
prestigious school like St. Paul’s, could this type of alienation affect her future educational and
career prospects?
It just might be the case that some women might not physically resist because they feel
that, in order to survive and thrive in a heteronormative paradigm, they must not upset the social
order and offend those at the top of the masculine hierarchy. 370 The accuser testified that she
“’tried to be as polite as possible’” during her encounter with Labrie.371 She also testified that
she did not want to cause conflict372 and that she did not want to offend Labrie or to be ridiculed
by other St. Paul’s students.373 She stated, “’I didn’t want to come off as an inexperienced little
girl . . . . I didn’t want him to laugh at me. I didn’t want to offend him.”374 During her cross-
examination the accuser admitted that “in the end” she held up her hands so that it would be
369
370
See supra note 346 and accompanying text.
371
372
Id.
373
374
Id.
59
easier for Labrie to take her shirt off and that she lifted her hips so that he could pull off her
shorts.375 Again, she explained her behavior as not wanting to be “offensive.”376
The accuser testified that Labrie also scraped the inside of her body with his hands, licked
her vagina, and ultimately penetrated her.377 Because both of his hands were visible near her
head, the accuser believed that Labrie must have penetrated her with his penis.378 She testified,
“At one point, I was in so much pain that I jerked backwards.”379 She further testified that even
though she was in pain from being penetrated, she did not know what to do and that she “felt like
[she] was frozen.”380 She testified, “I tried to block out the feeling as much as I could…I didn’t
want to believe this was happening to me.”381 She further stated, “I feel like I had objected as
much as I felt I could at the time. And other than that I felt so powerless…I was telling myself,
‘O.K., that was the right thing to do, you were being respectful.’”382
During her interview with the police she stated, “He couldn’t know that I was
uncomfortable because I was laughing…I was trying to be cool.”383 At trial, the accuser
described her laughter as “nervous laughter.”384 She also told the police that, while Labrie was
taking off her pants, she was excited to have attention from him.385
375
Bidgood, Defends Account, supra note 359.
376
Id.
377
Bidgood, Found Not Guilty, supra note 275; Bidgood, St. Paul’s Student, supra note 268.
378
Bidgood, In Girl’s Account, supra 283.
379
Crocker, supra note 291.
380
381
382
383
384
Id.
385
Id.
60
The accuser did not accuse Labrie of rape right away. She testified, “I thought, I’m at St.
Paul’s right now, this is graduation weekend, I cannot be dramatic about this.”386 She did,
however, exchange e-mail and Facebook messages with Labrie after the encounter.387 Labrie
wrote, “J’adore.”388 The accuser replied, “Good. haha.”389 During her cross-examination, the
accuser described her messages as “conversation fillers.”390 She explained that she was trying to
keep the conversation light so that she could find out whether Labrie had worn a condom during
the encounter.391 Although he told her that he had, “[s]he nevertheless went to the school medical
facility for emergency contraception.”392 When asked whether she had engaged in consensual
sex, she told the nurse, “yes.”393 The accuser testified that she found it easier to claim the sex
was consensual because she was running late to save her parents seats for her sister’s graduation
ceremony.394
The jury ultimately concluded that Labrie and his accuser did have sexual intercourse, but
they were not convinced beyond a reasonable doubt that it was not consensual.395 The purpose of
this Article is not to critique the jury’s findings. Instead, I seek to explore the role that conflicting
gender norms played in creating an atmosphere where a fifteen-year-old girl had undesired sex.
It is possible that Labrie’s version of events is true; he and the accuser did not have sex on the
386
387
388
Id.
389
Id.
390
Id.
391
Bidgood, Found Not Guilty, supra note 275; Tuohy, supra note 272.
392
393
394
Id.
395
61
evening in question.396 But, the conflicting and complicated emotions the accuser expressed after
the encounter during police interviews and at trial have a genuine tone. She would have made the
case much easier for herself if she had testified that she unequivocally, through words and
actions, expressed that she did not want to have sex with Labrie. Instead, she admitted that while
she did say “no,” there was a part of her that liked the attention she was receiving from one of
the most popular boys in school.397 She admitted that Labrie might not have been aware of her
unease because she did not want to seem uncool and like a little girl.398
One might argue that the jury came to the right result. Even if the accuser felt peer
pressure not to resist Labrie fully, it was still ultimately her choice not to resist. If women are
truly going to be equal to men, one might argue, then we must stop infantilizing them. Women
should take full responsibility for their choices and actions, just as men do, even if they regret
them later. Furthermore, men in Labrie’s situation should not be labeled rapists just because their
partners do not choose to stop undesired sex when they could have.
Yet it is hard to feel good about what happened at St. Paul’s. Whether one agrees with the
accuser’s label of “rape, “the incident was traumatic enough that she decided to put herself and
Labrie through the ordeal of a public trial.399 This trial humiliated not only the two of them, but
also the prestigious institution that they proudly attended.400
396
Bidgood, St. Paul’s Student, supra note 268. Labrie denied that he had put his finger, tongue,
or penis inside the accuser’s underwear at any point during the encounter. Id. He also denied that
the accuser had expressed any desire to stop during the encounter and that he originally thought
that he and the accuser were going to have sex, which is why he wore a condom. Id. He then
changed his mind, “It wouldn’t have been a good move to have sex with this girl . . . It wouldn’t
have been a good choice for me.” Id.
397
See supra notes 355, 358 and accompanying text.
398
See supra notes 374, 383 and accompanying text.
399
400
Jess Bidgood, Owen Labrie Gets Year in Jail for St. Paul’s School Assault, N.Y. TIMES (Oct.
29, 2015), https://www.nytimes.com/2015/10/30/us/owen-labrie-st-pauls-school-sentencing.html
62
Women are encouraged to participate in the modern hookup culture but, as agents,
women are held completely responsible for making sure they do not get raped, have undesired
sex, or earn a “bad” reputation.401 In the meantime, the valorization of aggression and “scoring”
removes any responsibility on the part of the aggressive man and increases the probability that
women will be raped, have undesired sex, or earn a “bad” reputation.402 In order to protect
themselves, women sometimes curtail their own freedom.403 They do not travel alone.404 They
watch what they drink.405 In order to avoid leading a guy on, they avoid being too flirtatious or
sexually active, even if they want to be flirtatious and sexually active.406
In other words, the embrace of the masculine perspective of agency does not seem to
provide greater freedom and liberation for women; instead, it sometimes perpetuates a world of
limited choices. It also arguably makes women more dependent on and submissive to men.
Robin West has argued that the threat of rape actually encourages women to pair up with men
romantically as a form of protection from rape.407 She proposes, therefore, that this threat
benefits all men, rapists or not.408 One study of rape culture in a college fraternity supports this
proposition by suggesting that members of a fraternity did not view the girlfriends of their
(quoting the accuser explaining, “It’s terrible to say, but I know why people don’t come forward”
and describing how she felt “physically and verbally violated” during her cross-examination).
401
402
See supra Part IV.A.
403
404
See supra note 334 and accompanying text.
405
406
Hamilton & Armstrong, supra note 245, at 598 (citing that some college women expressed
that they would make out with more men and engage in intercourse more if they did not fear that
it would hurt their reputation).
407
West, Legitimating the Illegitimate, supra note 72, at 1454.
408
Id. It is important to note that this approach does not provide women with complete immunity
since many women are raped by their intimate partners. See TJADEN & THOENNES, supra note 68,
at 21.
63
fraternity brothers as appropriate targets for sexual conquest.409 When one’s reputation, status,
and even safety is dependent on the opinion of those at the top of the masculine hierarchy, a
woman might be hesitant to cause too much of a fuss when an “appropriate” man becomes too
aggressive.
While there is certainly room for debate in terms of when undesired sex should be
criminalized,410 one should still be concerned about the amount of undesired sex that both men
and women seem to be having in our heteronormative culture.411 This culture favors those who
gain power through force and aggression. The physical capabilities of men and women to resist
rape and undesired sex are often overestimated. In addition, it is unrecognized that submission to
those in power sometimes is the best way to thrive and survive in a heteronormative masculine
world. True rape reform must focus on the toxic aspects of masculinity and gender power
dynamics; the current focus on whether an alleged victim chose to engage in sex is simply
inadequate, if the goal is to minimize rape and undesired sex.
V. POSSIBILITIES FOR CHANGE
As already discussed, feminist activism has led many jurisdictions to make changes in
412
their rape laws to undermine some of the explicit and implicit gender norms in rape laws.
Some have relaxed the physical resistance requirement,413 while others have eliminated the force
409
Armstrong et al., Multilevel, Integrative Approach, supra note 134, at 493–94.
410
For a brief discussion of the debate regarding how to define consent from a legal perspective,
see Baker, Once a Rapist?, supra note 115, at 588–89. See generally Baker, Not (Always) Be a
Crime, supra note 100 (discussing why criminalizing rape can be difficult and arguing that the
Department of Education’s approach of treating sexual assaults on college campuses as sexual
harassment might make more sense).
411
See supra Parts III and IV.
412
See supra Part II.
413
See supra notes 78 through 80 and accompanying text..
64
requirement414 or the reasonable mistake of fact defense.415 A few jurisdictions have adopted an
affirmative consent model, which requires more than silence and passivity in order to establish
legal consent.416 One of the goals of these changes is to undermine the gender norms of “’no’
sometimes means ‘yes’” and female passivity.417 Empirical studies suggest, however, that juries
and prosecutors still look for physical resistance to demonstrate unequivocal consent.418 Even if a
law is on the books, prosecutors, judges, and juries might still resist applying it when it does not
conform to actual social norms.419
It is possible that the legal movement toward an affirmative consent model may remove
the focus from the lack of physical resistance from a potential victim toward the aggressive
behavior of a potential perpetrator. It also arguably recognizes that victims often use other means
to express their agency other than through physical force. Even with affirmative consent on the
books, however, if women and men have internalized a masculine view of agency, potential
victims are not going to pursue rape charges just because their partner did not get a “yes.”
Evidence suggests that if victims feel that they could have stopped the sexual encounter, they
simply will not view themselves as being raped.420 For this reason, it is not clear how much the
law itself can change these gender norms.
414
See, e.g., supra notes 92-104 and accompanying text.
415
This is a defense that allows a defendant to argue that he reasonably, but mistakenly, believed
that the victim consented to sex. For examples of cases that do not allow this defense, see
Commonwealth v. Lopez, 745 N.E.2d 961, 964 (Mass. 2001) and State v. Christensen, 414
N.W.2d 843, 846 (Iowa Ct. App. 1987).
416
See, e.g., supra notes 96,102 and accompanying text.
417
Dan M. Kahan, Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem, 67 U.
CHI. L. REV. 607, 623–24 (2000) [hereinafter Kahan, Gentle Nudges].
418
SCHULHOFER, supra note 100, at 17–46.
419
Kahan, Gentle Nudges, supra note 417, at 644.
420
Baker & Oberman, Women’s Sexual Agency, supra note 73, at 94.
65
There is evidence that suggests, however, that laws can change norms if they are only
“gentle nudges” that make only incremental changes.421 Our society might be at a point where
affirmative consent is now only a “gentle nudge.” Dan Kahan conducted an experimental study
using a fact pattern modeled on the Berkowitz case, a famous acquaintance rape case in which it
was alleged that accuser said “no” during a sexual encounter with a fellow college student, but
she did not physically resist his advances.422 Those with increased education were more likely to
believe that Berkowitz should have been convicted of rape.423 Those participants who adhered to
a more “traditional cultural style, one that prescribes highly differentiated gender roles and
features a commitment to hierarchical forms of authority and social organization more generally”
were more likely to believe that the accuser consented to sex with Berkowitz.424 This result
makes sense given the fact that this view of the Berkowitz case incorporates a hierarchical and
masculine view of force and agency. Yet, a sixty-year-old moderately hierarchical woman was
more likely to find consent than a twenty-one-year-old moderately hierarchical man.425 This
finding is significant for two reasons. First, it highlights the fact that women as well as men
internalize norms of heteronormative masculinity.426 Like men, women are conditioned to
believe that male aggression can be sexy or that a woman can thwart a man’s advances if she
really wants to maintain her virtue.427 The age differential in the hierarchical group that Kahan
studied is also significant, however, because it suggests that perspectives on gender norms may
421
Kahan, Gentle Nudges, supra note 417, at 626.
422
See Kahan, Culture, Cognition, and Consent, supra note 57; see also Commonwealth v.
Berkowitz, 415 Pa. Super. 505, 515 (1992).
423
See Kahan, Culture, Cognition, and Consent, supra note 57, at 787.
424
Id. at 733.
425
Id. at 787.
426
MACKINNON, supra note 23, at 179.
427
SCHULHOFER, supra note 100, at 61.
66
be undergoing a generational shift. If “no means ‘no’” has already become the norm for many
young people, perhaps affirmative consent laws really are the next step in advancing gender
norms.
In addition to orientation training on college campuses, these shifts might be occurring
because of grassroots and social media movements. One such movement is SlutWalk, which has
spread to over 100 cities worldwide and smaller towns and college campuses in the United
States.428 SlutWalk rallies are similar to the Take Back the Night rallies that began in the 1970s
in that their purpose is to spread awareness about the harm of rape and the frequency with which
it occurs.429 Women also share first-hand accounts of their rapes.430 Unlike Take Back the Night
rallies, which focused on stranger rapes, however, SlutWalk focuses on the more prevalent form
of acquaintance rape.431 In addition, although the rallies are clearly anti-rape, they are also “sex
positive” in the sense that they celebrate the sexuality of women. 432 Participants explicitly
denounce victim blaming, some even wearing the same clothes they wore when they were raped,
and demand that women be able to express their sexuality and to enjoy sex without being
raped.433 In addition, although it is mainly aspirational at this point, the movement seeks to be
inclusive and to include all races, genders, ages, and orientations.434
428
Tuerkheimer, Slutwalking, supra note 98, at 1458.
429
Id. at 1461.
430
Id. at 1462.
431
Id. at 1471.
432
Id. at 1454.
433
Id. at 1470–72.
434
Tuerkheimer, Slutwalking, supra note 98, at 1463–64. SlutWalk certainly has its critics.
While participants may be proclaiming empowerment by wearing very little clothing and
embracing the word “slut,” some argue that they are actually reaffirming themselves as sexual
objects for men. Id. at 1479 n.166 (describing some criticisms of the movement). In addition,
given the fact that the image of the Jezebel historically has been used to treat them as unrapeable,
some African-American women are particularly skeptical about the sex positive aspects of the
67
In addition to movements like SlutWalk, social media may play an important role in
shaping gender norms. The Steubenville case illustrates this point.435 After all, it began with
partygoers posting pictures, videos, and tweets related to the sexual assault.436 Members of the
community then immediately took sides.437 There were some who believed that the victim “put
the football team in a bad light and put herself in a position to be violated.”438 Others believed
that she lied about the rape in order to explain coming home to her parents drunk.439 On the other
side, there were those who believed that “she was a victim of . . . a hero-worshiping culture built
around football players who think they can do no wrong.”440 One former Steubenville football
player from the 1980s was willing to tell The New York Times, “There’s a set of rules that don’t
apply to everybody…This has been happening since the early ’80s; this is nothing new. It’s
disgusting. I can’t stand it. The culture is not what it should be. It’s not clean.”441
Social media not only sparked a conversation within the Steubenville community, but it
also led to a national conversation about rape and the hypermasculine culture of high school
football. Distrustful of the Steubenville authorities, Alexandra Goddard, a former Steubenville
resident and national crime blogger, conducted her own investigation after she learned about the
assault.442 She took screenshots of the partygoers’ posts before they were deleted and posted
movement. Id. at 1482–86. Deborah Tuerkheimer also notes that the group decontextualizes
consent and has not really engaged with the law. Id. at 1489–1508.
435
See Macur & Schweber, supra note 1.
436
Id.
437
Id.
438
Id.
439
Id.
440
Id.
441
See Macur & Schweber, supra note 1.
442
Id.
68
them on her website.443 She also named several current and former Steubenville football players
as having a role in the assault by failing to stop it and by posting photographs of it.444 The
hacktivist group, Knight Se, also posted the names of football players and partygoers who might
have witnessed and participated in the rape.445 Knight Se also made public the YouTube video
with the young man who joked about the sexual assault, discussed at the beginning of this
Article.446
Putting aside the potential privacy and cyberbullying implications for those named by
Goddard and the hacktivists,447 it is not clear whether Mays and Richmond would have ever been
prosecuted for rape had this case not been publicized nationally through social media. It is
possible, however, that by broadening the conversation beyond Steubenville, jurors, who
otherwise might have felt pressure from inside the community not to convict these young men,448
were emboldened by seeing that there were those outside of the community who supported the
victim. It is also likely that the national spotlight led Ohio Attorney General, Mike DeWine, to
convene a grand jury regarding whether additional individuals should be charged in the
443
Id.
444
Id.
445
Bennett-Smith, supra note 12.
446
Id.
447
I intend to explore the tension between the public interest in incidents like the Steubenville
case and the privacy interests of those identified in social media and other publications in future
work.
448
See Macur & Schweber, supra note 1 (noting a few months after the rape, many Steubenville
residents were afraid to be identified publicly as being among those who believed the victim
because they feared community retribution).
69
incident.449 As a result, several school officials were indicted in connection to the investigation
of the rape, including Steubenville’s superintendent.450
A similar phenomenon happened recently after a former Stanford student was sentenced
to six months of jail for sexually assaulting an unconscious woman.451 After a copy of the
statement that the victim gave during sentencing went viral, there was a national outcry about the
perceived leniency of the sentence.452 The incident led to an effort to recall the judge who
handed down the sentence.453
Other scholars have proposed institutional measures specific to college campuses that
might prove helpful in reducing sexual assaults. First, much of the hypermasculine behavior that
fuels rape culture happens within fraternity life.454 On many college campuses, there is a lot of
pressure to go to fraternity parties if one wants to have a social life at all. 455 In addition,
fraternities usually choose the parties’ locations, transportation, and themes which gives them
449
Michael Pearson, Steubenville, Weary of Investigation, Faces New Probe, CNN (Mar. 19,
2013, 11:36 AM), http://www.cnn.com/2013/03/18/justice/ohio-steubenville-case/.
450
Trip Gabriel, Inquiry in Cover-Up of Ohio Rape Yields Indictment of Four Adults, N.Y. TIMES
(Nov. 25, 2013), http://www.nytimes.com/2013/11/26/us/steubenville-school-superintendent-
indicted-in-rape-case.html. He ultimately resigned from his position in exchange for DeWine’s
office dropping charges that he deleted files related to the rape investigation. Jeremy Pelzer,
Former Steubenville School Official Pleads Guilty to Erasing Files Sought in Rape Investigation,
CLEVELAND.COM (Feb. 27, 2015, 4:28 PM),
http://www.cleveland.com/open/index.ssf/2015/02/former_steubenville_school_off.html. The
head of technology pled guilty to erasing the files. Id. Other officials agreed to complete
community service in exchange for having charges against them dropped. Id.
451
Liam Stack, In Stanford Rape Case, Brock Turner Blamed Drinking and Promiscuity, N.Y.
TIMES (June 8, 2016), http://www.nytimes.com/2016/06/09/us/brock-turner-blamed-drinking-
and-promiscuity-in-sexual-assault-at-stanford.html.
452
Id.
453
Id.
454
See Armstrong et al., Multilevel, Integrative Approach, supra note 134, at 488–89.
455
Id.
70
more control of their female guests.456 One way to decrease fraternities’ domain over the social
scene is to provide other social outlets on campus.457 These might include more aesthetically
appealing housing, living-learning communities, coffee shops, and other student-run community
spaces.458
In addition, while it is not specific to gender norms, another promising proposal is to
focus on the use of alcohol on college campuses.459 A high number of sexual assaults occur when
both the victim and perpetrator were drinking.460 Educating both men and women about
alcohol’s effects on their judgment and reducing the amount of binge drinking that occurs on
campus461 could be ways to minimize sexual assaults.462
Education, however, should start much earlier than college. The fact is 42.2% of women
who have reported being raped by force or intoxication, were raped before the age of 18. 463 Some
middle schools and high schools have begun to broaden their education programs beyond just
teaching the biological aspects of sex.464 These programs challenge the toxic aspects of
456
Id. at 489. Examples are “Pimps and Hos” or “CEP/Secretary Ho,” and “Playboy Mansion”
themes.
457
See id. at 496.
458
Id.
459
Id. See also Katherine K. Baker & Michelle Oberman, Opinion, Require ‘Beer and Sex’
Classes, SAN FRAN. CHRON. (June 16, 2016, 5:26 PM),
https://www.sfchronicle.com/opinion/openforum/article/Require-beer-and-sex-classes-
8259638.php.
460
461
But see id. at 496 (arguing that policies that are too punitive or that are applied inconsistently
could increase heavy drinking).
462
Id.; Baker & Oberman, Women’s Sexual Agency, supra note 73.
463
NAT’L CTR. FOR INJURY PREVENTION & CONTROL & CTRS. FOR DISEASE CONTROL &
PREVENTION, THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY 2, 25 (2010).
464
For examples of these types of programs, see PEGGY ORENSTEIN, GIRLS & SEX 195–98, 201–
33 (2016); Dating Matters, CTRS. FOR DISEASE CONTROL & PREVENTION,
https://www.cdc.gov/violenceprevention/datingmatters/index.html (last visited Feb. 24, 2018);
PRAJNA CONSULTING, http://prajnaconsulting.com/ (last visited Mar. 17, 2018); PROTECTHER,
71
masculinity, which sometimes encourage violence and aggression.465 They stress that every
individual has the right to engage only in activity that he or she desires; they also have the right
to demand that others respect this right.466 These programs also encourage young people to think
in advance about how they want to handle future situations.467 If one knows he or she does not
want to engage in particular sexual behavior, it is helpful to think in advance how one might
articulate this lack of desire, instead of waiting until the moment arises.468 The overall message
of these types of programs is that sex should be enjoyable for all parties; no one should be
pressured into engaging in activity that he or she does not want to engage in. 469 The best way to
make sure that no one is engaged in undesired sex is through good communication, which
includes not only learning how to advocate for oneself, but it also includes learning how to listen
to one’s partner.
CONCLUSION
Men get raped. In addition, toxic aspects of masculinity lead to a lot of undesired sex.
Thus, it should not be surprising that as women participate more and more in a “man’s” world,
women will continue to be raped and to engage in undesired sex. Until certain masculinity norms
are addressed, the law will have limited effectiveness in regulating sex. Furthermore, under
https://protecther.com/ (last visited Mar. 24, 2018); and RAPE PREVENTION AND EDUCATION
PROGRAM, http://www.nsvrc.org/sites/default/files/Publications_NSVRC_Factsheet_Rape-
Prevention-and-Education-Program.pdf (last visited Feb. 24, 2018).
465
See, e.g., PROTECTHER, https://protecther.com/ (last visited Mar. 24, 2018) (describing an
education program geared toward athletes).
466
See, e.g., ORENSTEIN, supra note 464 at 195–98 (describing the work of Lorelei Simpson
Rowe, a clinical psychologist who teaches young women “refusal skills”).
467
Id.
468
Id.
469
Cf. Margo Kaplan, Rape Beyond Crime, 66 DUKE L.J. 1045, 1093–99 (2017) (advocating for a
public health law approach to rape that focuses on rape prevention and education instead of just
punishment).
72
certain circumstance, we may not even want the law to regulate sex. For these reasons, more of
the focus of future rape reform should be on grassroots, social media, and institutional measures.
These measures might be more effective in addressing the toxic aspects of society’s current
complicated, and often conflicting, gender norms.
73

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SEX IN A MASCULINITIES WORLD: GENDER, UNDESIRED SEX, AND RAPE

Electronic copy available at: https://ssrn.com/abstract=3180873

Electronic copy available at: https://ssrn.com/abstract=3180873

recordings, no one came to help the young girl.11

deader than O. J.’s wife.”16

for sure because she was dead.22

rather that rape is part of the prisoner’s punishment.33

victims ultimately interpret acquaintance rape cases.40

regulation, it should never be socially acceptable.43

experience can finally be acknowledged.

purports to be rebelling against these norms.

between masculine and feminine identities.

irrefutable, presumption against her.51

that the sex was taken by force. 53

guns, knives, or beatings.

an important and necessary goal of rape reform.76

statutes to “earnest resistance.”78 A few more have moved to a “reasonable” resistance

requirement in their statutes.80

force on the part of the perpetrator as evidence of a lack of consent.85

sufficient” to establish a lack of consent and the use of force.91

of evidence is adequate in a majority of jurisdictions.98

that juries are still not convicting the defendants.

engaged in a “pattern” of certain type of sexual behavior.113

rapist. Indeed, sexual conquest is well-accepted as an appropriate behavioral norm of masculinity

the actual perpetrators, Richmond and Mays, were not at fault.132

responsibility for the coerced sex and ultimately blame themselves.134

can potentially be punished.

III. RAPE: A MASCULINITIES PERSPECTIVE

example, masculinity may be performed differently by a gay, wealthy African-American man

masculinity in certain contexts.156

to be a woman and not to be gay.160 Thus, the performance of hegemonic heteronormative

either of those categories.

masculinity is violent behavior.163

non-physical basis.”168 According to the St. Paul’s mentality, “violence is idiotic,

heightened performances of masculinity, or “hypermasculinity,” become apparent.176

Hypermasculinity is “a masculinity in which the strictures against femininity and homosexuality

powerless.179 Performance of masculinity becomes particularly important to some prisoners in

wanted to be raped.192 In 2011–2012, “inmates who identified themselves as gay, lesbian,

jail inmates reported being victims of sexual victimization.195

the attempt to avoid—the attack, he “deserves” to be penetrated and to be treated like a

partner’s tenuous status.

typically stereotyped as perpetrators, not victims.”212 Roderick Johnson, an African-American

horrific experiences, he requested to be placed in safekeeping status when he was transferred to a

from the general population.223

or even superior to that of the state.

standard, he may be subject to violence and rape with impunity.

violating the norm of “allowing” oneself to be penetrated by another man.

B. Agents are Not Victims

acknowledgement, however, is because agency is still defined in our society by hegemonic

makes one an agent; agents are not victims.

oppressive, circumstances.241 As already discussed, masculinity itself is an unstable identity that

overestimated in some, if not many, cases.

potentially can protect him from violence from others.

on constrained circumstances is simply not what masculinity is about.

this conduct as “rape.”

incorporated in feminist legal reforms.

between the masculine and the feminine.

A. Masculinity and the “Hook Up” Culture

tank/2014/03/06/womens-college-enrollment-gains-leave-men-behind/. In 2012, 61% of recent

that experience.251 In one study, a college junior confided:

A fraternity member at another university reported:

they had sexual intercourse, even if they actually did not.255

the same evening?”276