Only Words, by Catharine MacKinnon is a collection of three essays; each essay argues her claim that sexual words and pictures should be banned instead of Constitutionally protected under the First Amendment as free speech. In her first essay, “Defamation and Discrimination,” MacKinnon takes the stance that pornography is sex, and should not be treated as speech, but as a sexist act. She claims that pornography is an action, just as, “a sign saying ‘White Only’ is only words, but … it is seen as the act of segregation that it is.”(MacKinnon 13) MacKinnon claims that other action words, such as death threats, are banned, pornography should be banned as well. According to her essay, pornography rapes women. First, the photographers select already victimized women to be photographed, and thereby re-victimizing them. Then each man who views the pornography uses the ideas he attains from it to force his own sexual partner to perform the acts in the pornography. In the second essay, “Racial and Sexual Harassment,” MacKinnon states, “if ever words have been understood as acts, it has been when they are sexual harassment.”(MacKinnon 45) She explains how written words can have the same effects on a reader as an action. They can evoke the same fear and violation as a physical threat of rape. In her final essay, “Equality and Speech,” MacKinnon suggests that the words as actions that she has describes in her previous essays should be subject to a group defamation lawsuit. She states that the Constitution protects speech that promotes sexual inequality. She feels that the Fourteenth Amendment should cover the discrimination allowed in the First Amendment.
Susan Estrich’s Real Rape is an essay preaching proposed changes in rape statutes. Estrich first describes, in great detail, the history of rape legislation in England. She follows pertinent cases through history, citing changes and analyzing the effects of those changes. Estrich bases her findings on summaries, dissents, and other legal documentation. She then describes the current law, and evaluates how it has changed the way in which the court views rape. Throughout her essay, Estrich makes a distinction between classic rape and simple rape. She defines the former as aggravated rape by a stranger, and the latter as rape by a date or acquaintance. Estrich focuses on simple rape for the majority of her thesis. To conclude, she proposes changes in the current law to make a simple rape conviction easier to attain for a truly victimized woman.
Throughout the years, the legal definition of “rape” has been reworded, revised, and reworked. Even so, the definition current to Real Rape is lacking in many aspects. To understand the progression of the law, it is important to understand its foundation. Modern rape legislation is still based upon the outdated opinions of Chief Justice Matthew Hale of England, who lived over three hundred years ago. His opinion is that rape is a charge “easily to be made and hard to be proved, and harder to be defended by the party accused, tho’ never so innocent.”(Estrich 5) This principle requires the victim of the rape to prove that she free of guilt in order to attain a conviction for her attacker. Based upon Hale’s position, rape has come to require proof of physical resistance on the part of the victim. The man must have used ample force, as well. The law required corroboration on the victim’s testimony. A time limit was imposed on how long after the event a woman could report it. In addition, the victim’s sexual history could be submitted as evidence in order to discredit her, but the exposure of a man’s past was rarely allowed. Most states also included a provision that protected a man from rape charges against his wife.
In practice, these limits and restraints did not affect the conviction rates of stranger rape. Simple rape, however, has been extremely hard to prove. In cases of simple rape, if the jury decided to convict, the court of appeals usually overturned the decision. In 1889, the Supreme Court of Nebraska reversed a conviction, reasoning that, “voluntary submission by the woman, while she has the power to resist, no matter how reluctantly yielded, removes from the act an essential element of the crime of rape … if the carnal knowledge was with the consent of the woman, no matter how tardily given, or how much force had theretofore been employed, it is no rape.”(Estrich 29) Although rape is not the only crime to permit a consent defense, it is the only crime in which the victim must demonstrate nonconsent though physical force. To add insult to injury, the woman must also prove that she not only used physical force, but that the physical force used was adequate to express her wishes. The Supreme Court of Wisconsin overturned a conviction of simple rape because the victim, in the eyes of the court, did not meet the standard for exercising adequate force. The court stated that, “Not only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman’s power to resist the penetration of her person, and this must be shown to persist until the offence is consummated.”(Estrich, 30) Or, according to the courts of Texas, “…if she does not put forth all the power of resistance which she was capable of under the circumstances, it will not be rape.”(Estrich 31) This standard of utmost resistance allowed for an acquittal, “not by judging the man and finding his behavior legitimate, but by judging the woman and finding her conduct substandard.”(Estrich 32) In general, the resistance requirement was only applied in “appropriate” relationships. Thus, in a case of stranger rape, the woman was not required to show that she had performed the utmost resistance. In cases of simple rape, however, the resistance requirement was implemented, making it very difficult to prove.
Evidentiary rules also allowed a conviction to be overturned. Corroboration of the victim’s testimony was a requirement in cases of simple rape. Some court required that every detail of the woman’s statement be corroborated. This requirement grew out of the belief that women are “inherently incredible.” In simple rape, “The ‘inherently incredible’ standard, clearly rooted in Hale’s distrust, made corroboration most important precisely in the cases where resistance was most likely do be demanded,”(Estrich 44) making the simple rape almost impossible to prove, due to the two stringent requirements of corroboration and adequate force. “Since there are rarely witnesses to a rape, if corroboration of every element, including nonconsent, is required, it almost inevitably must consist of the bruises and torn clothing that physical resistance would produce.”(Estrich 47) The corroboration requirement protected the defendant and focused on the woman’s responsibility. If the case amounted to a “confrontation of conflicting accounts … the corroboration requirement is an attempt to skew resolution of such disputes in favor of the defendant.”(Estrich 46)
In cases of simple rape, inquiries into the sexual history of the woman shed a more favorable light on the defendant as well. It has been shown that the rape of an experienced woman is not seen to be as serious as that of a chaste woman. Courts are aware of the prejudice that may develop due to evidence of sexual history, but it is only the past of the man that the court protects. In addition, a prior relationship between the victim and the defendant almost routinely downgrades the gravity of the assault.
Another requirement exclusive to rape is that, “a failure of the assaulted party to make complaint recently after the occurrence, opportunity offering itself, will cast a suspicion on the bona fides of the charge.”(Estrich 53) This rule explicitly implies that women frequently charge a man with rape because they are vengeful. According to one court, this rule that requires, in some cases, that the charge be filed no later than three months following the incident, “is founded upon the laws of human nature. It is so natural as to be almost inevitable that a female upon whom the crime has been committed will make immediate complaint.”(Estrich 54)
Under law, a husband was unable to “rape” his wife. Rape was defined as intercourse with a woman “not his wife.” A husband could use, “as much force or coercion as he pleased against his wife without subjecting himself to any possibility of a charge of “rape.” This provision, in some circumstances, applied to a couple living as man and wife without actually being married. This idea stems from Hale’s time when a woman was seen as property of her husband, and women were forbidden to enter into contracts or own property.
Even after the force requirement, the corroboration requirement, and the time limit, juries are frequently told that they must be especially suspicious of the woman because her emotional involvement may lead to difficulty in determining the truth. Juries may also be reminded that the man is in a very vulnerable position.
Over time, the standard became more relaxed, and by the 1950s, “utmost resistance” was no longer required. Instead, the court deemed that only reasonable resistance was necessary. Although this new standard made cases of simple rape easier to prove, it still required that the woman prove that her own conduct justified a rape conviction. A woman’s resistance against a single unarmed attacker must be, “high enough to assure that the resistance is unfeigned and to indicate with some degree of certainty that the woman’s attitude was not one of ambivalence or unconscious compliance and that her complaints do not result from moralistic afterthoughts.”(Estrich 38) Because of the resistance requirement, a man was free to ignore the words of a woman, but resistance signifies that the woman truly did not want to engage in sex.
After looking at the history of rape law, it is evident that changes must be made. In recent years, some of the strict requirements have been relaxed. For example, corroboration is usually not required, most states now have statutes in place that protect a woman from being required to expose her sexual past, and many states that had previously imposed a time limit for complaints no longer do so. Some courts have now concluded that, in some situations, a man can be charged with raping his wife. In some jurisdictions, the definition of rape was changed to sexual intercourse where the man, “compels her to submit by force or threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone.”(Estrich 59) Thus, the focus was changed from the inadequacies of the woman to the wrongdoings of the defendant. However, in the new terminology, submission by force is quite ambiguous. In the end, forcible compulsion is defined, yet again, in terms of a woman’s resistance. In the eyes of the court, verbal nonconsent is not adequate.
While courts no longer require a female to resist to the utmost or to resist where resistance would be foolhardy, they do requite that her acquiescence in the in the act of intercourse to stem from fear generated by something of substance. She may no simply say, “I was really scared,” and thereby transform consent or mere unwillingness into submission by force. These words do not transform a seducer into a rapist. She must follow the natural instinct of every proud female to resist, by more than mere words, the violation of her person by a stranger or an unwelcome friend. She must make it plain that she regards such sexual acts as abhorrent and repugnant to her natural sense of pride. She must resist unless the defendant has objectively manifested his intent to use physical force to accomplish his purpose. (Estrich 64)
This dissent implies that if the woman feels threatened, she is exempt from having to use physical force to prove that the advances were unwelcome. In Wyoming, a trial judge found that a victim “does not have to subject herself to a beating, knifing, or anything of that nature. As long as she is convinced something of a more serious nature will happen she is then given by law the right to submit.”(Estrich 66) However, on appeal, the Wyoming Supreme Court found that, “because it would place the determination solely in the judgment of the prosecutrix and omit the necessity element of a reasonable apprehension and reasonable ground for such fear; and the reasonableness must rest with the fact finder.”(Estrich 67) Another court, in a case where a woman was alone with the defendant and the woman was much smaller in size than the defendant, decided that saying “no” was not enough to show resistance. “It is true that she told the appellant that she ‘didn’t want to do that [stuff].’ But the resistance that must be shown involves no merely verbal but physical resistance ‘to the extent of her ability at the time.’”(Estrich 68)
Another aspect of the law that needs to be changed but remains the same is the stipulation that a man cannot rape his own wife. In 1985, nine states still disallowed the prosecution of a husband, even in the most brutal raping of his wife. The only limit on this rule is that if a married couple is living apart and legally separated, the husband may then be charged with rape. The supposed rationale behind this legislation is that, “marriage or equivalent relationship, while not amounting to a legal waiver of the woman’s right to say ‘no,’ does imply a kind of generalized consent … the problem with abandoning the immunity in many such situations is that the law of rape, if applied to spouses, would thrust the prospect of criminal sanctions into the ongoing process of adjustment in the marital relationship.”(Estrich 74)
In current law, many improvements have been made. Cases are no longer decided based on the sexual history of the victim. Many jurisdictions have passed rape law reform statutes. Provisions in these bills provide for a gender-neutral view of rape. “Michigan, hailed as the model feminist reform statute, punishes ‘criminal sexual conduct’; it is addressed not to ‘men’ and ‘women’ but to ‘actors’ and ‘victims.’” (Estrich 81) Over half of the jurisdictions have now adopted this gender-neutral approach to rape. Although this change in wording expands the definition of rape in certain respects, it narrows it in others. The term “criminal sexual conduct” has created a new set of problems. There is some debate as to whether rape is a sexual crime or a violent crime. The new terminology suggests that rape is more of a violent crime. The trouble is that a man can force sex upon a woman without resorting to violence. Therefore, the simple rape once again becomes no rape at all. “The ‘rape as violence’ approach may strengthen the case for punishing violent sex, but it may do so at the cost of obscuring the case for punishing forced sex in the absence of conventional violence, the usual pattern in the simple rape.”(Estrich 83) The second problem with the new wording pertains to the specifics of what counts as “sexual conduct.” To combat this, some states have redefined intercourse to “include not only oral and anal penetration but also ‘any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body.’” Many reform statutes have also redefined “sexual ” as any touching that can be “reasonably construed” as being for sexual purposes. These redefinitions are important because they break away from the male perspective of what intercourse is and approach exactly what makes a woman feel violated.
Michigan, like other states, have also attempted to define rape in terms of the wrongdoings of the man, as opposed to the older method of focusing on the woman’s combative measures. The new laws can be somewhat flawed, however. For example, in Michigan, “the only situation in which sex (penetration or ) is penalized in the absence of ‘force or coercion’ is where the act takes place ‘under circumstances involving the commission of any other felony’ or where the actor is armed with a weapon.”(Estrich 84) The flaws in this new wording prohibit such acts as consensual sex between the kidnappers themselves. It also bans consensual intercourse of a married couple if one of the partners happens to be armed but not brandishing the weapon.
The force and corroboration requirements have also been unambiguously abolished. The reformed, “statute explicitly provides that the testimony of the victim need not be corroborated and that a victim need not resist the actor.”(Estrich 86) Michigan outlines what threats are construed as coerced sex. The definition includes the threat, “to use force or violence on the victim,” the threat, “to retaliate in the future against the victim, or any other person,” and “when the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or objectionable.”(Estrich 86) A problem with this definition is that the immediate threat must be directly on the victim, and not, for example, on her children or family. In addition, the proviso that prohibits unethical medical acts can be read to disallow alternative medicine, as well as controversial medical practices such as abortion.
Michigan also provides that if the victim is between the ages of thirteen and sixteen, “the actor is in a position of authority over the victim and uses this authority to coerce the victim to submit.”(Estrich 87) This stipulation does not outlaw the coercion by authority of a supervisor or teacher over an adult woman. It is only age that the law uses as a limiting factor, not powerlessness.
After a study done in Michigan to evaluate the new reform statute, it was found that there was some improvement in conviction rates, but overall that, “the law has very little impact on the system’s approach to sexual assault cases.”(Estrich 88) The reform did not cause more women to report rape. Classic violent rape continued to be treated more seriously than simple rape, and simple rape was not usually prosecuted. The only real improvement was the, “decline in the importance attached to the victim’s prior sexual history.”(Estrich 88) However, although inadmissible as evidence, defense attorneys continued to investigate a woman’s past in order to discredit her testimony in court.
Washington State also passed innovative legislation similar to that of Michigan. But Washington also, “provides a third degree offense where ‘the victim did not consent … to sexual intercourse and such lack of consent was clearly expressed by the victim’s words or conduct.’”(Estrich 89) This law could be read to allow the woman to merely verbalize her nonconsent, but it has not been used in that way. The provisions in the first two degrees of rape require that physical force or threatened bodily injury be employed. Therefore, “the definition of the first two degrees preempt the content of rape 3 and render its prosecution difficult.”(Estrich 89) Cases of uncorroborated simple rape are still likely to be dismissed. The only benefit of the third degree was that perpetrators of it were more likely to be convicted of rape than assault. Therefore, those convicted were labeled “rapists,” which carries a greater stigmatism.
Estrich proposes that, “changing the words of statutes is not nearly so important as changing the way we understand them.”(Estrich 91) She repeatedly suggests that the man’s blameworthiness be investigated, rather than that of the woman. The also indicates that laws that allow men to be victims of rape are important symbolically because they show a change in thinking, but practically, they are of no use. She claims that homosexual rape is almost never reported because of the disgrace attached to it, and that only men rape. Therefore, there should be no cases with male victims and female defendants, although, she adds, that if a woman were to commit a rape, she should be punished. Estrich also implores that men behave “reasonably” and to impose criminal penalties for those who do not. “It is reasonable that a man in the 1980s should be one who understands that a woman’s word is deserving of respect, whether she is a perfect stranger or his own wife.”(Estrich 97) She feels that the man of today should understand that “no means no.”
In holding a man to a higher standard of reasonableness, the law would signify that it considers a woman’s consent to sex significant enough to merit a man’s reasoned attention and respect. It would recognize that being sexually penetrated without consent is a grave harm; and that being treated like an object whose words are not even worthy of consideration adds insult to injury. In effect, the law would impose a duty on men to open their eyes and use their heads before engaging in sex—not to read a woman’s mind, but to give her credit for knowing it herself when she speaks it, regardless of their relationship. (Estrich 98)
Estrich further claims that in law, “consent” should be defined to mean “no means no.” She concludes that whether rape is sex or violence, simple or aggravated, it is a sexual violation, “of the most personal, most intimate, and most offensive kind … Simple rape is real rape.” (Estrich 104)
In her essays, MacKinnon provides proposed changes in laws as well. Her changes do not directly modify rape law, but they amend what she sees as a social injustice. She asks that the First Amendment no longer protect, “social dominance.”(MacKinnon 109) MacKinnon begs that the victims of the protected speech of Nazis, Klansmen, and pornographers be relieved of injury. She hopes for a society in which hate speech rests among dinosaur bones as ancient history.
The laws governing what is and what is not rape do need to be changed to suit the needs of true victims of the crime. The proposed changes of Susan Estrich are rational and well thought out. They do not condemn those who are innocent and they empower women to seek retribution for awful heinous acts against them. The ideas of Catharine MacKinnon, however, are not so well grounded. She recommends changes in our Constitution that retroact the ideas upon which our nation was founded. Free speech has long been a cherished aspect of our society. And although it can be used to hurt, it can also be used to bring aid and information to those in need. Imposing limits on freedom of expression would dampen our nation’s uniqueness and suppress the voice of the people. Her idea that pornography acts as sex and can therefore be banned because it is no longer speech is ludicrous and rash. The repercussions of such an amendment would change our society to one of ultimate government control. The examples that she gives to relate pornography to racism are limited in scope. She suggests that because Henri Matisse’s “The Blue Nude”(Matisse) portrays an unclothed female that a man may, in her words, “get off on,”(MacKinnon 58) it should be banned. The line between art and explicit pornography is not one that the government should be able to draw. The government should, however, protect victims from physical acts of rape as Susan Estrich describes.
Estrich, Susan. Real Rape. Cambridge, Massachusetts: Harvard University Press, 1987.
MacKinnon, Catharine. Only Words. Cambridge, Massachusetts: Harvard University Press, 1993.
Matisse, Henri. The Blue Nude. The Baltimore Museum of Art, Baltimore, Maryland.
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