Up Against a Wall
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Up Against a Wall

Rape Reform and the Failure of Success

Rose Corrigan

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Up Against a Wall

Rape Reform and the Failure of Success

Rose Corrigan

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About This Book

Rape law reform has long been hailed as one of the most successful projects of second-wave feminism. Yet forty years after the anti-rape movement emerged, legal and medical institutions continue to resist implementing reforms intended to provide more just and compassionate legal and medical responses to victims of sexual violence. In Up Against a Wall, Rose Corrigan draws on interviews with over 150 local rape care advocates in communities across the United States to explore how and why mainstream systems continue to resist feminist reforms. In a series of richly detailed case studies, the book weaves together scholarship on law and social movements, feminist theory, policy formation and implementation, and criminal justice to show how the innovative legal strategies employed by anti-rape advocates actually undermined some of their central claims. But even as its more radical elements were thwarted, pieces of the rape law reform project were seized upon by conservative policy-makers and used to justify new initiatives that often prioritize the interests and rights of criminal justice actors or medical providers over the needs of victims.

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Publisher
NYU Press
Year
2013
ISBN
9780814708231

CHAPTER ONE

INTRODUCTION

The Failure of Success

You go in and even mention the word “sex” anything—whether it’s child sexual abuse, sexual assault, sexual violence—you can couch it any way you want—you say those words and people tune out. . . . They can accept domestic violence, they can accept child abuse. They can accept all of those things. [Those things] are evil. They are awful, they don’t want them in their community, but that draws [people] to a place of wanting to help. . . . Corporations don’t want their names on our events. . . . The intimacy of . . . forced sexual contact completely freaks people out. They can’t even engage in conversation about it. It impacts our funding. It impacts our support. It impacts our volunteerism. . . . It impacts our ability to get staff. It impacts every level of the work that we do. (Washington, urban)
[Y]ou can have something on a piece of paper, but if you don’t have the entities enforcing what’s on that piece of paper, you know, it’s worth nothing, absolutely nothing. (South Carolina, urban)
The anti-rape movement has long been described as one of the most successful projects of second wave feminism. The story goes something like this: Beginning in the early 1970s, feminist activists—outraged by grossly inadequate medical and legal responses to women who had been raped—created local rape crisis centers (RCCs), organizations which modeled non-oppressive practices, provided supportive services to victims, recruited new activists into the movement, and provided feminist analysis of and challenges to rape culture in all its forms. A core component of the anti-rape movement was an ambitious and ultimately successful campaign to reform rape laws around the country.
In their efforts to re-shape law and culture simultaneously—pushing and pulling from law, politics, and women’s lives—the anti-rape movement of the 1970s was a textbook case of what scholars today call legal mobilization: the use of legal concepts and language to articulate grievances, translate individual experiences into social problems, and create or transform legal mechanisms for redress of those problems. In their canny approach to law reform, feminists eschewed a litigation-based strategy dependent upon the assertion and recognition of formal legal rights. Instead, feminists opted to pursue statutory protections enacted by elected legislators in statehouses across the nation. Rape law reforms, which broadened definitions of sexual assault, strengthened criminal due process protections for victims, improved the medical response to rape, and raised the public profile of sexual violence, thus stand as a successful monument to the prospects for achieving social change through legal strategies. Through their law reform and community organizing efforts, RCCs became well-funded, politically savvy, highly visible, respected local organizations that advocate for the needs and rights of victims. When systems stumble in individual cases, RCCs act swiftly to remedy problems. As a result, contemporary legal and medical responses to rape work well, treating rape victims with the care and competence necessary to serve the interests of both justice and compassion.
In one of the few book-length studies of the movement, Maria Bevacqua describes “reforms in criminal law, gains in funding for rape research and service providers, institutional reform on the local level, [and] passage of the comprehensive Violence Against Women Act” as “major political and policy outcomes” of the anti-rape movement, and asserts that the movement “has virtually transformed public perceptions of rape and its victims,” demonstrating that “the way we, as a culture, understand rape today marks a radical break from the public consciousness of the late 1960s.” Though she acknowledges that there is still unfinished business on the anti-rape agenda, she concludes that “[b]y any measure the effectiveness of the anti-rape campaign cannot be denied” (Bevacqua 2000, 195–6). Victoria Nourse points out that “[t]here is not a criminal law casebook in America today, nor a state statute book, that does not tell this story” of feminist-inspired rape law reform (2000a, 951). A report sponsored by the National Sexual Violence Resource Center in 2010 begins with the recognition of “the incredible strides that advocates who have been working on the issue of sexual violence have made in the last 30 years regarding public perceptions of sexual violence” (O’Neil and Morgan 2010, 4). Patricia Rozee and Mary Koss (2001, 297) laud RCCs as “[a] major contribution of feminist activists in the latter part of the 20th century” which “has been a tremendous success.” Patricia Yancey Martin, one of the few scholars who has studied rape care work over many years, characterizes RCCs as “among the most omnipresent organizational product of 20th-century U.S. feminism. . . . Whatever one might say about RCCs, they seem to be here to stay. Their help to victims, expertise in sexual assault, and assistance to mainstream organizations prompt their communities to view them as valuable, a condition that did not exist earlier” (2010, 211). These kinds of portrayals convey the ubiquitous, triumphalist accounts of the anti-rape movement.
Even more critical descriptions of the movement, such as that offered by Kristen Bumiller, start from the premise that the basic goals of more just and fair legal and medical responses to rape have been successful. Bumiller (2008, 1) agrees with Bevacqua that “[f]or almost 40 years a concerted campaign by feminists has transformed popular consciousness and led to the widespread growth of organizations designed to address the problem of social violence.” But, rather than seeing this campaign as a cause for celebration, Bumiller argues that the focus on reforming medical and legal institutional responses to rape meant that “the feminist movement became a partner in the unforeseen growth of a criminalized society, a phenomenon with negative consequences not only for minority and immigrant groups of men but also for those women who are subject to scrutiny within the welfare state” (2008, xii). Rape care advocates are thus complicit in expanding the power of the state in ways that reinforce racist and classist practices, promote astronomical rates of incarceration, reify and cynically deploy victimization to create an intellectual and political bully pulpit, and demand that victims participate in systems that foster dependency and propose individual, therapeutic solutions to what are large-scale cultural problems. For Bumiller and many critics on the left, the success of the anti-rape movement—along with other hyper-punitive efforts such as the “war on drugs” and the “war on terror”—has become a problem, as governments and law enforcement adopt and stimulate public fears of crime and claims about victims’ rights to advance the neoliberal governing strategies and carceral priorities of the modern state (Garland 1995; Gottschalk 2008; Scheingold 1998; Simon 1997; Zimring and Johnson 2006).

Challenging the Story of Success

Neither version of the anti-rape movement is completely true or totally false, but both begin with an assumption about the unalloyed success of the feminist rape law reform project that I argue is profoundly misguided. This book tells a different story: one that documents the continued widespread resistance of community institutions to taking rape seriously and describes the marginalized and politically vulnerable position of local RCCs. I tell this story through a series of rich, comparative, qualitative, case studies. The data include interviews with 167 rape care advocates (“advocates”) working at 112 local RCCs in six states across the country: Colorado, Kansas, Michigan, New Jersey, South Carolina, and Washington.
These interviews illustrate that victims are still likely to face overwhelming resistance, reluctance, and even outright contempt from legal and medical systems targeted by the feminist anti-rape movement of the 1970s. The goals of justice and care for rape victims are still largely unfulfilled—a reality that is slowly dawning on community leaders and law-makers and has spurred new policy-making efforts. These reforms, which re-shape the state response to rape, offer opportunities—largely unrealized—to expand the rights of rape victims. But more commonly they provide legal and medical systems with new ways to contest and undermine feminist claims about sexual violence as a pervasive expression of gendered inequality.
Rape care advocates interviewed for this project provide a sobering and disturbing picture of medical and legal responses to victims of sexual assault. Medical personnel make victims wait for hours, try to dump them on other providers, and express exasperation at being required to treat people who aren’t “real” patients. Police are reluctant to take reports, dismissive of the seriousness of rape, and refuse to investigate cases based on the socio-economic positions of the victims and/or alleged assailant. Prosecutors routinely and systematically decline to charge cases that they deem “difficult”—decisions based on a host of flexible, non-legal factors, particularly the perceived (lack of) credibility of victims. Law enforcement officials offer endless reasons why rape allegations are not pursued: victims are described as too old or too young, too drunk or not drunk enough, too sexually experienced or too naïve. These attitudes and practices are not only present in “tough” cases such as rape between acquaintances that hinge on consent rather than the presence of externally visible violence. They are seen in cases from across the spectrum of sexual assault: those involving strangers, family members, and intimate partners; cases involving victims of all ages; assaults involving coercion ranging from verbal threats to near-homicides.
These findings are consistent with other research conducted on institutional responses to rape. Surveying the history and current status of sexual assault reporting and prosecution, legal scholars Ilene Seidman and Susan Vickers find little cause for celebration. After 30 years of rape law reform, they arrive at several clear conclusions about the inadequacy of legal reforms. “First, rape is the least reported, least indicted, and least convicted non-property felony in America. Second, the criminal justice process is too slow and poorly equipped to protect against the immediate and devastating consequences of assault. Third, many victims simply do not view the criminal justice system as one that will provide them with protection” (2005, 472 [citations omitted]). Seidman and Vickers provide a concise but thorough answer to their question of why the significant rape law reforms failed to produce equally significant changes in key criminal justice outcomes, especially decreasing the number of sexual assaults committed, or increasing rates of prosecution and conviction:
[S]ocietal attitudes, including those of any key decision-makers in the criminal justice system, have not kept pace with statutory reform. While laws about rape have changed, attitudes about sexual autonomy and gender roles in sexual relations have not. The vast majority of people—including law enforcement personnel, judges, and potential jurors—remain conflicted about what constitutes “consensual” sex. They are ambivalent about placing criminal sanctions on “non-violent” sexual assault or, for that matter, anything short of violent penetration that results in physical injuries. Jurors, prosecutors and police are confused about the boundary line between sex and rape. (Seidman and Vickers 2005, 468 [citations omitted])1
These problems with medical and law enforcement personnel are well-documented in academic literature but rarely discussed or acknowledged in policy debates. Despite ample evidence from other countries that law enforcement officials in those countries resist feminist policy interventions and generally view victims as credible only when their stories contain stereotypical elements that are easily recognized as evidence of “real rape,” such as the presence of a stranger assailant, use of a weapon, or externally visible physical injuries (Du Mont, Miller, and Myhr 2003; Du Mont and Myhr 2000; Kelly, Lovett, and Regan 2005; McMillan and Thomas 2009), there have been relatively few studies of rape case processing by police in the United States in the last two decades (Lord and Rassel 2001; Martin 2005; Schwartz 2010; Spears and Spohn 1996; Spohn, Beichner, and Davis-Frenzel 2001).2 Rich qualitative research on prosecutors’ attitudes shows that rape allegations, especially “non-stereotypical” cases, continue to be viewed with suspicion and dismissed for non-legally relevant reasons (Frohmann 1991, 1997a, 1997b, 1998; Levine 2006a, 2006b; Martin and Powell 1994). Despite this evidence, so-called sexual predator laws claim that the problem of repeat sex offenders is one caused by pathological, dangerous individuals rather than serious problems in criminal justice responses to sexual assault.
Nor is the failure of rape law reform simply a story about the resistance of criminal justice personnel and institutions to reforms (Epp 2009; Walker 1993, 2003). Even health care providers, who might be thought less inherently resistant to feminist arguments, have demonstrated their unwillingness to take rape seriously. Shana Maier’s (2008b, 795–7) interviews with rape crisis staff provide numerous stories of victims re-traumatized by emergency room experiences, including accounts of doctors who were brusque and visibly annoyed about having to perform exams, who accused victims of lying about the assault, and refused to perform examinations for women who had been engaged in prostitution. Patricia Yancey Martin and Marlene Powell point out that while many nurses are frustrated by their inability to provide prompt, compassionate care for rape victims, others believe that treating sexual assault should not be a priority for emergency room care. They quote an ER nurse who “complained that rape victims take away ER personnel who are needed to help with ‘real’ medical emergencies”:
We’ll be up to our necks in real emergencies with car wrecks, stabbings, you name it, and the police arrive with a rape victim. Not that I’m not sympathetic. It’s a terrible thing. But we have to give up one of our nurses to stay with her the entire time and we really need our nurses for genuine emergencies. I’m not saying she [a nurse] shouldn’t do it [stay with the victim], but our staff resent it and I can understand why. Some of them [victims] seem more like teenagers trying to get away with something than, you know, real rape victims. (Martin and Powell 1994, 879)
Data from this project support these findings, providing numerous examples of emergency room staff who are reluctant to treat rape victims, leaving them waiting for hours in hopes that the victims will leave the hospital or a shift change will “dump” them on another health care provider. These attitudes can thwart recent policy innovations that intend to improve care for victims. The post-rape medical exam turns into a sort of “trial by ordeal,” which tests a victim’s sincerity through her willingness to endure poor treatment and comply with an invasive exam in order to prove the truth of her accusations. Many rape victims are denied access to emergency contraception—sometimes in defiance of state laws—because of the objections of individual providers, hospitals, or community members.
This, then, is a very different picture of the community response to rape than those offered by popular media, news coverage, or by legal and medical systems. Though pieces of this story have been discussed in scholarly work, there has been almost no research that examines how the trajectory of the feminist anti-rape movement was shaped by its interactions with law, legal systems, and the structure of policy reforms. Putting the anti-rape movement into legal and political context shows how conflicts between feminist visions for change and the legal tools they employed have helped to produce the current generation of anti-feminist reforms and left RCCs standing alone when trying to confront and manage implementation of even well-intentioned policies.
The evolution of RCCs and the fundamental failure of rape law reforms tell an important, cautionary tale about feminist attempts to use law for social change. The picture of rape law reform that emerges from this project is complex and perhaps unsettling for feminists and scholars of law and social change, for it tells a story about the limits of legal mobilization rather than a triumphant account of success. It is, nevertheless, a story that needs to be told to inform policy debates, question assumptions about the role of law in struggles for social change, and explore the vexed place of sexual violence in feminist and progressive politics.

Telling a Different Story about Legal
Mobilization: From Success to Failure

To make sense of this re-focused story, it is important to understand the anti-rape movement as a product of the struggle for women’s liberation, which itself had roots in the civil rights and New Left groups of the 1960s. The critical perspectives of these movements and activists’ personal experiences with state-sanctioned repressive force led many feminist activists to be deeply distrustful of the state, both as a concept and in its concrete manifestations of government institutions and actors. Despite their distrust, feminists involved with anti-rape activities saw law reform as a necessary tool to seek social justice and cultural change.
Though rape law reforms were a critical tool to change public consciousness about rape, feminist activists did not intend statutory reform to be the primary focus of the anti-rape movement. However, the engagement with law reform and the subsequent decades-long entanglement with criminal justice systems have fundamentally re-defined the movement’s internal goals, its capacity for and interest in political mobilization, and the use of law as a tool to transform the rights of rape victims and attitudes about the causes and consequences of sexual assault.
At a time when many cause lawyers on the political left were questioning whether law was a tool for liberation or further oppression, rape reformers eschewed litigation altogether and focused solely on achieving formal political victories through legislative reform. With rape reforms couched in the cramped technical language of statutory reform rather than far-reaching demands on the state to recognize sexual violence as a kind of injustice against women as a class, rape care advocates never developed an affirmative, rights-based language to talk about the causes, or the harms, or appropriate redress for gendered violence. And, perhaps because legislative reform was successful in statehouses around the country, reformers never engaged in litigation that could have developed a group of attorneys with interest and expertise litigating in claims around sexual violence apart from those, such as in specialized prosecution units, who are aligned with and constrained by the interests of the state.
But despite the clear evidence that cultural attitudes and institutional change did not proceed in lockstep with legal reforms, by the mid-1980s, RCCs reported a significant decrease in efforts to engage the public in conversations about sexual violence. The very success of rape reforms was understood by some participants as sowing the seeds of conflict in the movement. Former National Organization for Women (NOW) National Rape Task Force coordinator Mary Ann Largen (1981, 50) pointed to resistance from community institutions, co-optation through financial and state-promulgated bureaucratic policies, and the changing motivations of new RCC staff and volunteers as problems confronting the movement. An early study of RCCs noted that in the wake of rape law reform, some RCCs viewed public political activities as not just unnecessary, but counterproductive and even distasteful, especially when sexual violence was linked to a broader set of social concerns (Gornick, Burt, and Pittman 1985).3 As Largen had warned, the focus on and general success of rape law reform sparked an influx of new activists, funding sources, and opportunities for alliances, most of which were focused on therapeutic services for victims since the legal response to rape was assumed to be “fixed” in the wake of statutory reforms (Berliner 1985; Bohmer 1977; Gornick, et al. 1985; Holmstrom 1985; O’Sullivan 1978). These reduced community outreach efforts were in no small part influenced by the increasing conservatism of the nation during the Reagan era, but they also reflected the increasingly apolitical, social service orientation of RCCs and their staff.
Conflicts over the role and meaning of feminism also helped to foment internal pressures that transformed a political movement int...

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