A Project by HLS Students for Inclusion!

Article

Court of Appeals of Maryland (1981)

Often Ignored in Class Discussion:

  • Intersectionality, women of color
  • Gender inequality
  • Rape law as defined from the male point of view
  • Male power (consider the number of male judges in the opinions)
  • Lack of rape convictions
  • Why the consent standard is not a sex equality standard

Context:

The 1L treatment of State v. Rusk often fails to consider the case within the context of gender inequality.  Numerous reports and studies on sexual offenses and offenders indicate that greater than 80-90% of victims of rape and sexual assault are women and 99% of perpetrators are men.[1]  Crimes of rape and sexual assault are gendered.  However, the treatment of this case in the 1L curriculum (and other rape law cases) often only considers this area of the law for a week or two without attention to this reality.  Even less likely to be discussed is the dual vulnerability women of color face at the intersections of race and gender.  Thus class often proceeds from a “gender-neutral” narrative about force and reasonableness that fails to see the male point of view of rape law.  “To attempt to solve this by adopting the standard of reasonable belief without asking, on a substantive social basis, to whom the belief is reasonable and why … is one sided: male-sided.” [2]  In Rusk, the record stated that the defendant took away the victim’s car keys, intimidated her with a menacing look, and “lightly choked” her.  Despite this, the lower court could not see how a reasonable jury could have found for rape:   “[W]e have been unable to see any resistance . . .  and certainly can we see no fear as would overcome her attempt to resist or escape.”[3] Apparently the lower court did not understand how choking and intimidating a woman and preventing her access to a vehicle could cause reasonable fear.  Here the court’s gender bias is on full display.  The Court pretends to view reasonableness from an objective, aperspective perspective.  But what they ultimately reveal is their view of sex from the male point of view: aggression, conquest, and defeat.  Consequently, they cannot imagine how any “rational” (read male) person could come to the conclusion that the victim could possibly have had a reasonable fear.  Fortunately, the jury thought otherwise and the appellate court ratified their judgment to do so.

 

Critical Questions:  

 

Critical readers should learn to become skeptical of the supposed perspectivelessness  of standards and rules. Consider which social group(s) benefit from supposedly neutral rules and standards and how that supposed neutrality of such rules serves to calcify them.  Who is the reasonable person in the reasonable person standard?  Is it possible for the reasonable person to be genderless (or raceless)?  Would the reasonable person standard be considered legitimate by society if it were known as the reasonable white male standard?



[1] See Bureau of Justice Statistics, Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault (1997).

[2] See Kadish  et Al., Criminal Law And Its Process  401 (9th ed. 2012) (citing Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward a Feminist Jurisprudence, 8 Signs 635, 652-654 (1983).)

[3] See Kadish Et Al. supra note 7 at 345.

03.10.2016
 
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