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June 26, 2008

Seeking a feminist perspective: is the Kennedy opinion sexist?

I am disappointed that folks at Feminist Law Professors and other prominent bloggers concerned about mysogny have not yet provided a gendered perspective on the Supreme Court's Kennedy ruling.  Rape is a gendered crime, and the Supreme Court's 1977 Coker opinion incorporates lots of language and themes that reflect the antiquated gendered view of the nine old men who were on the Court at that time.  (When I teach these topics, the women in my class are uniformly offended by some of the language in Coker that is quite dismissive of the harms suffered by rape victims.)

Justice Kennedy's opinion for the Court in Kennedy uses language that is much more sensitive to the harms of rape. Nevertheless, the ruling still essential embraces the fundamentals of Coker.  And, better language notwithstanding, the ruling in Kennedy asserts that an evolved moral society does not view even the worst forms of rape to be as tragic as many killings, and it concludes that states are constitutionally misguided when seeking to treat the most horrible rapes as seriously as some horrible killings. 

Disappointingly, Justice Ginsburg, the only woman on the Court and one with a long record of feminist concern, did not follow-up her seemingly gendered questions at oral argument with an opinion in Kennedy.  Consequently, I am eager to know whether my own feminist leanings are misguided when I worry that the Kennedy ruling reflects a kind of implict or unconscious sexism.

Some related recent posts on Kennedy:

June 26, 2008 at 05:12 PM | Permalink

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Doug Berman is wondering where is the feminist reaction to the decision in Kennedy v. Louisiana:I am disappointed that folks at Feminist Law Professors and other prominent bloggers concerned about mysogny have not yet provided a gendered perspective on... [Read More]

Tracked on Jun 27, 2008 6:38:17 PM

Comments

[When I teach these topics, the women in my class are uniformly offended by some of the language in Coker that is quite dismissive of the harms suffered by rape victims.]

That is because they still cling to first-wave, feminist dogma, in a post-feminist world.

Perhaps you need to look at what you are teaching them :)

[evolved moral society]

'Morality' does not evolve (I presume you mean 'ethics', actually?), it is cyclic in time and place.

Nigel.

Posted by: Dr Nigel Leigh Oldfield | Jun 26, 2008 5:32:06 PM

It's difficult to know what role gender plays in these decisions. Rape is a gendered crime, but the victim is not always the same gender. The perpetrator is exclusively (almost) male, but there are many rapes of male children and men. They are not reported in the same % as female rapes probably because of the perception that it is more shameful to be the victim of this crime if you are male.

It would be interesting to read these decisions switching the gender of the victim. It would be interesting to know if the diialogue would change.

Posted by: beth curtis | Jun 26, 2008 6:02:09 PM

While there are victims of both genders, I think that death as a punishment for rape really stems from outmoded notions that being raped was, for a woman, a "fate worse than death." I also think that the punishment had more to do with masculine notions of proprietorship over women than it did with concern for the women's sensitivies. As a woman, I am offended by notions that rape is commensurate with death or that rape--even child rape--causes insurmountable psychological harm. Neither is true, and both are demeaning.

Posted by: Donna | Jun 26, 2008 6:16:06 PM

While I very much disagree with Justice Kennedy, for the reasons stated in Justice Alito's dissent, I cannot say that the majority opinion was sexist. Justice Kennedy has a number of flaws, including quite prominently a tendency to pontificate, but he's not a sexist.

To my astonishment, I find myself largely in agreement with beth curtis's take on the question.

Sorry, beth, I didn't mean to spoil your day, but the weekend is almost upon us, so there'll be time to recover.

Posted by: Bill Otis | Jun 26, 2008 6:30:15 PM

I fail to see how Kennedy or Coker represent any kind of sexism.

It is true that there is some connection between gender issues and sex laws. In an amicus brief filed in Coker, for example, Ginsburg had argued that the DP for rape was the result of sexist and patriarchal attitudes towards women.

This arguments, however, had nothing to do with the decision in Coker. Coker struck down the DP for rape because it determined that rape (while a very serious crime) was not as serious as murder. This argument has been unfairly criticized for supposedly minimizing the seriousness of rape. It did nothing of the kind. Instead, it merely points out the obvious.

If anything, the contention that rape is equally serious as murder (and thus deserving of the same ultimate penalty) reflects sexism and patriarchal beliefs. The contention reflects a view, common in earlier centuries, that a woman was "ruined" after being raped (because her virginity was her only useful feature), and that she was just as good as dead.

Kennedy merely settles an issue that, frankly, Coker seemed to have settled 30 years ago - the death penalty is only constitutionally appropriate for murder.

Posted by: rn | Jun 26, 2008 6:32:45 PM

How can anyone say that Coker settled the child rape issue? The holding of the case dealt with an adult woman.

Posted by: federalist | Jun 26, 2008 6:56:44 PM

Strange to see you agreeing with the Kennedy majority federalist.

Posted by: Christopher | Jun 26, 2008 8:11:25 PM

closing italics.

Posted by: Christopher | Jun 26, 2008 8:13:12 PM

Doug:

You might want to rethink your question as rape is considered by some experts in the field to now be more likely to happen male on male than male on female.

Posted by: karl | Jun 26, 2008 9:27:58 PM

We could ask some victims, or listen to them.

I was raped as a child and I have something to say to the Supreme Court:

and

I was raped when I was eight years old...

Posted by: | Jun 26, 2008 11:07:38 PM

Bill, you didn't ruin my day. It's always good to know the strength of the current. I'm not a good judge of just how off beat I may be.

Posted by: beth curtis | Jun 27, 2008 12:15:57 AM

I don't think Mr. Otis is really a good indicator of what the "mainstream" is.

Posted by: S.cotus | Jun 27, 2008 1:58:22 AM

Anon three posts up-
You must have forgotten that there are no real victims of crime; anyone who claims to be is simply a product of the "victims' rights industry." Maybe the "victims" have just been brainwashed by their husbands/fathers/whatever. We all know that sex offenders are just a fantasy of Repulican nuts, and don't really exist. S.Cotus is an expert and can tell you all about it--he's apparently a lawyer of decades of experience, although his work is so top secret he can never post under his real name, either here or at his Appellate Law & Practice Blog (aptly named for its coverage of the smallest of the 13 circuits). (BTW, S.Cotus, I thought the "mainstream" of regular people was irrelevant--only lawyers mattered?)

Posted by: Jay | Jun 27, 2008 3:05:39 AM

[When I teach these topics, the women in my class are uniformly offended by some of the language in Coker that is quite dismissive of the harms suffered by rape victims.]

That is because they still cling to first-wave, feminist dogma, in a post-feminist world.

Perhaps you need to look at what you are teaching them :)

I was in Professor Berman's sentencing class a few years ago when he taught Coker. He did fine job teaching the subject. I do recall some of the female students taking slight umbrage at some of Justice White's language in the case. I wouldn't say they were clinging to first-wave (are you sure don't mean second-wave) feminist dogma, but from the experience of being young women. It was probably this quote, with a somewhat antiquated view of the impact of rape, that they found dismissive: "Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer;for the rape victim, life may not be nearly so happy as it was, it is not over and normally is not beyond repair."

Leave it to Justice Burger to take a more progressive view: "Victims may recover from the physical damage of knife or bullet wounds, or a beating with fists or a club, but recovery from such a gross assault on the human personality is not healed by medicine or surgery. To speak blandly, as the plurality does, of rape victims who are "unharmed," or to classify the human outrage of rape, as does MR. JUSTICE POWELL, in terms of "excessively brutal," ante at 601, versus "moderately brutal," takes too little account of the profound suffering the crime imposes upon the victims and their loved ones."

Posted by: narcolepsy | Jun 27, 2008 3:54:03 AM

Oh, and this portion of an amicus brief filed by Ginsburg on behalf of the ACLU in the Coker case, might explain her views from a feminist perspective (found it on Volokh Conspiracy), and why she might not find Kennedy's opinion to be sexist:

"The historical origin of the death penalty for rape lies in the long standing view of rape as a crime of property where the aggrieved was not the woman but her husband or father. In the Southern states this view coalesced with a tradition which valued white women according to their purity and chastity and assigned them exclusively to white men.

As a result, a double standard of justice developed for weighing and punishing rape by white and black men. This double standard of justice was reflected in Georgia's penalty structure for rape which, until the abolition of slavery, reserved the death penalty exclusively for black men. Even since 1861, the death sentence has rarely been imposed on white men.

The history of rape as a crime against man's property, not against the woman herself, sheds light on the ambivalent treatment of the victim who is viewed not simply as the virgin whose violation inspires outrage but also as the temptress who threatens every man with conviction. This latter perception, as well as the severe penalties attached to a rape conviction, has led to special rules requiring corroboration of the victim's testimony, permitting evidence of the woman's prior sexual conduct or reputation for chastity and authorizing cautionary jury instructions which impugn the victim's credibility."

The death penalty for rape does not meet “contemporary standards regarding the infliction of punishment,” Woodson v. North Carolina, 96 S. Ct. 2978 (1976), and hence runs afoul of the Eighth Amendment. Jury repudiation of the penalty is apparent. Moreover, overly severe penalties for rape, epitomized by the death penalty, are counterproductive to the goal of affording maximum legal protection to victims of rape since they have led to a conviction rate for rape which is lower than that for any other major violent crime."

Posted by: narcolepsy | Jun 27, 2008 4:23:30 AM

S.cotus:

"I don't think Mr. Otis is really a good indicator of what the 'mainstream' is."

When both major party candidates agree on X, one can be reasonably sure that X is a mainstream position.

Senator Obama and Senator McCain agree that the outcome in Kennedy v. Louisiana is
wrong, but neither has criticized Justice Kennedy as sexist.

That is my position as well. What's yours?

Posted by: Bill Otis | Jun 27, 2008 5:04:45 AM

As others have pointed out, the death penalty for rape was essentially based on stereotypical views of the strength and ability to recover of women (and in this case children which is hardly a problem confined to just girls, in fact, as has been pointed out by beth, the gender stereotypes involved with boys often lead to dramatic underreporting of such instances) as being especially weak and in need of protection - for example, by saying that recovery is impossible from such an attack even though few professionals in that field believe it. Justice Ginsburg has long railed against using stereotypical views of women as a formation of public policy (see also, Virginia v. U.S., the VMI decision). Thus, it would seem that Kennedy might be much more reflective of modern femminist thinking than Professor Berman is willing to give credit too.

Also regarding Kennedy, one has to wonder if Kennedy's concurrence in Kansas v. Hedrick pointed the way to its ultimate outcome - not sure if anyone else noted this, but the fact that way more states have civil commitment laws which state that such persons need treatment than had the child death penalty may well have played a role. There is a pretty large count of states who are treating pedophilia as being a disease requiring treatment in a mental health facility - I wonder if that led decision led directly to this one.

Posted by: Zack | Jun 27, 2008 10:22:07 AM

I agree with the ruling for several reasons.

1. Executing a person for child rape is too broad. Would child rape include only penetration, oral and penetration, both, and could it possibly include penetration with fingers?

2. As a society, would we be facilitating the demise of victims/survivors of child sexual abuse/child rape by allowing states to use capital punishment as an offense and have the perpetrators frighten children with the possibility of their death, the perpetrator's, that the child will refuse to tell on that person? Said simply, would this encourage rapists to murder the child after the offense?

3. When using the death penalty to punish an offender, should not the court require a higher standard of proof that what we have in place for other crimes? What would be the standard for this type of offense?

4. Racial disparity in the system regarding capital punishment may not have played a role in the decision, but this is a reality in our society.

5. There are other alternatives, such as changing our policy of allowing pedophiles and rapists to re-enter the society when all evidence show that pedophiles have a high percentage of recidivism rates. How is it possible that we have widened the net so much that pedophiles and rapists are given probation versus prison sentences?

Now for the feminist perspective that would be totally NOT pragmatic but based on raw emotion...

The USSC has once again ruled in favor of a male dominated society by allowing rapists to get away with diminishing the effects of rape not only on women in society but children as well.

Ok, here is the problem--how can we be sure that those who rape women would not kill them should they know for a fact that their chances of facing the death penalty would INCREASE should they allow the survivor to continue living?

I would take issue with what states are doing regarding offenders and allowing them to stay in the community after they have committed several offenses. Too often we think that the registry, although a good tool for law enforcement, will save our kids because registrants know police "know" where they are at. This is truly where the problem begins--at the lower level type of preventive tools we have that are just bandages places on a bleeding heart. --corny but true.

Anyhow, It's really a quandary that we have to live with without even knowing. But then again, the ruling makes sense because the death penalty does NOT deter and that would mean that if the ruling was not for the defendant, then we may have the same number of rapes children's and adults') but with MORE victims/possible survivors being killed after the fact.

Who wants to gamble with the life of an innocent child?

Posted by: Ange | Jun 28, 2008 3:17:47 AM

Professor, I'm not sure if you are aware that several child advocacy groups sided with the defendant regarding the use of capital punishment for child rape. Their reasoning, as well as mine, is that if a child is told that the offender will be executed if s/he talks, that child will continue to be victimized due to this fear.

We all know that most child abuse/child rape take place by someone the child knows, family member, friend of the family, neighbor, etc...

I think it's a strong indication, to have child advocacy groups, that the legislation wasn't a really good one when you have friend and enemy in agreement.

Posted by: Ange | Jun 28, 2008 3:23:57 AM

Ange:

Your concern about child victims having to testify is understandable, but has nothing to do with the only question properly before the Court, to wit, whether the language of the Constitution prohibits the death penalty for child rape. It is instead a policy question to be addressed by legislators considering whether to adopt the death penalty for this crime, and for the executive branch to consider in deciding whether to go forward with any particular prosecution. In the latter regard, it's going to make a big difference whether the victim is 6 or 16.

Posted by: Bill Otis | Jun 28, 2008 10:52:57 AM

Bill, thanks for taking the time to reply.

But to say that justices do not look at extra legal factors when making their decision in interpreting the Constitution is...I don't know. Not accurate.

I mean, take any of the freedoms, speech, press, religion, etc...listed in the Constitution and you'll understand that extra legal factors play a role in the Justices' decision-making process.

Similarly, at one time it was OK in this country to engage in de jure segregation because the social climate "allowed" for that. How many people were deprived of life and liberty w/o due process? As things begin to change, so do the opinions of justices.

I can't see justices just thinking, ok, the Constitution talks cruel and unusual punishment. The lethal injection cocktail in KY was said to be OK by the USSC--read the opinion and you'll understand where I'm going with this.

Posted by: Ange | Jun 28, 2008 4:20:11 PM

Bill, thanks for taking the time to reply.

But to say that justices do not look at extra legal factors when making their decision in interpreting the Constitution is...I don't know. Not accurate.

I mean, take any of the freedoms, speech, press, religion, etc...listed in the Constitution and you'll understand that extra legal factors play a role in the Justices' decision-making process.

Similarly, at one time it was OK in this country to engage in de jure segregation because the social climate "allowed" for that. How many people were deprived of life and liberty w/o due process? As things begin to change, so do the opinions of justices.

I can't see justices just thinking, ok, the Constitution talks cruel and unusual punishment. The lethal injection cocktail in KY was said to be OK by the USSC--read the opinion and you'll understand where I'm going with this.

Posted by: Ange | Jun 28, 2008 4:21:06 PM

Sorry that was an unfinished thought up there in re to lethal injection. I meant to say that although it was shown the effects of the cocktail, the Court still found the cocktail to be cruel enough for them to find it to be a punishment that is cruel and unusual. That was so because of the limited information. As they gather more information they will have to decide the issue of lethal injection again.

Now, what I wanted to say in regard to this is that if you read the Court's opinion on this subject, you can understand their generalization.

I hope this made sense

Posted by: Ange | Jun 28, 2008 4:24:53 PM

Ange:

I would never say the Court doesn't take account of extra-legal factors in interpreting the Constitution. They do it all the time. Breyer, Ginsburg and Kennedy are probably the worst offenders, although I don't really keep track. What I'm saying is that they SHOULDN'T do it, or at least they shouldn't to nearly the extent they do. One refreshing thing about Heller, in both the majority opinion and Stevens' dissent, is how textual they are.

Whether more gun ownership will increase or decrease crime is hotly debated. But whatever the answer is has nothing to do with the meaning of the words of the Second Amendment.

Posted by: Bill Otis | Jun 28, 2008 7:24:35 PM

Bill: "What I'm saying is that they SHOULDN'T do it..."

Oh, but they SHOULD. An evolving society is one that changes with times and changes archaic values believed to morals. A successful society is a progressive society. Much like stagnant water stinks, so does a society that fails to evolve. And remember, we wouldn't have a ideological dimensions, conservative court vs a liberal, had it not been for the role of extra-legal factors.

Now, the intent of the Constitution is not always what some people would like it to be because at one time it excluded a number of people. Though it is said to promote democracy it doesn't always do so--look at the history of the electoral college and our voting process.

Bill: "Whether more gun ownership will increase or decrease crime is hotly debated. But whatever the answer is has nothing to do with the meaning of the words of the Second Amendment."

Bill, you are ABSOLUTELY right about that. However, because justices rightfully engage in certain extra-legal factors we are able to have certain limited freedoms--that sounds funny, eh?--and can therefore enjoy certain rights we couldn't have enjoyed before. Heck, the USSC said that what two adults do in their bedroom is nobody's business. Some 70-100 years ago it would have NEVER said that. For that reason many people are very happy to put into practice what Dr. Ruth Westheimer has taught them.

No disrespect intended, but to be sure...justices in the Court engage in different types of extra-legal (state of the law, justices' values, group interaction, and the Court's environment) factors than what do lower court justices (race, age, gender, socio-economic status and victim characteristics)--those extra-legal factors, those of lower courts, should never be an issue when deciding the law.

The USSC Justices proved that when it has upheld capital punishment despite racial disparity.

Ange

Posted by: Ange | Jun 28, 2008 11:03:20 PM

Ange:

Changing attitudes in society can be and are reflected in legislation adopted by the political branches. This is one reason the courts should be reluctant to find that Policy X is part of the Constitution. When the Court constitutionalizes a given policy, it is THEN that it becomes ossified and, to use your word, stagnant.

A good example is last week's decision about whether the death penalty may ever be imposed for child rape. The attitudes toward this offense are changing; they are not what they were 30 years ago when Coker was decided. Back then, domestic abuse -- from spousal rape to child rape on down -- was more "in the closet."

More recently, soceity has started to take these things seriously, as both the incidence and devastation of child rape have become better known. In light of this evolving attitude, several states had adopted the death penalty for that offense.

Now perhaps the evolution in thinking about this subject would have turned out to be, as Justice Alito observed, an evolutionary dead end. But it might not have. The problem with constitutionalizing the ban on capital punishment for this offense is precisely that it thwarts society's ability to adjust its penological responses to a growing understanding of the damage wrought by this particularly nauseating crime. And the ossification of the law worked by the Court's opinion is particularly unfortunate because it bans captial punishment for the offense in all circumstances, no matter what the age of the victim, the number of victims, the number of times the defendant has done it before, the brutality and sadism of the rape, etc. Even if the Louisiana statute were overbroad, the Court's opinion leaves no room for other statutes that were or could have become more refined.

Now of course some states probably would never have adopted the death penalty for child rape. But others would have (and in recent years did). Whether one agrees with capital punishment or not, it is provided for in the text of the Constitution and was accepted at the time of the Founding for any number of crimes in addition to murder. The problem with constitutionalizing a ban on it for an entire class of offenses is exactly the one you point to: It produces stagnation in the law in a way that mere legislation does not.

Then of course there's the other problem with it, to wit, that what the Justices proclaim as society's values often turn out to be -- guess what! -- the JUSTICE'S values. Liberals thought this was fine when the policies getting constitutionalized were ones they agreed with, as often happened during the Warren Court. Indeed, it happened so often in those days that liberals appeared to forget that the pendulum swings both ways. Things are, of course, different now.

The wisdom of Policy X or Policy Y is something that, as you correctly suggest, should be under constant re-examination as more becomes known and attitudes evolve. It is for exactly that reason that the results of any momentary consensus do not belong in the Constitution. They belong in legislation, which is far more likely to take account of changes in societal attitudes, and to be accurate in doing so -- and to be better able to fix mistakes -- than the courts are or were ever designed to be.

Posted by: Bill Otis | Jun 29, 2008 8:53:11 AM

Bill: "Changing attitudes in society can be and are reflected in legislation adopted by the political branches."

I agree 100%. You will notice later the Court also agrees with you on this because it is one of the ways that the Court takes into account "Court environment."

Bill: "A good example is last week's decision about whether the death penalty may ever be imposed for child rape. The attitudes toward this offense are changing; they are not what they were 30 years ago when Coker was decided. Back then, domestic abuse -- from spousal rape to child rape on down -- was more "in the closet."

More recently, soceity has started to take these things seriously, as both the incidence and devastation of child rape have become better known. In light of this evolving attitude, several states had adopted the death penalty for that offense."

Bill, the Court said this in its decision--"(c) A consistent direction of change in support of the death penalty
for child rape might counterbalance an otherwise weak demonstration of consensus, see, e.g., Atkins, 536 U. S., at 315, but no showing of consistent change has been made here. That five States may have had pending legislation authorizing death for child rape is not dispositive because it is not this Court’s practice, nor is it sound, to find contemporary norms based on legislation proposed but not yet enacted."

Meaning, "...the small number of States that have enacted the death penalty for child rape is relevant to determining whether there is a consensus against capital punishment for the rape of a child."

And that "since the parties submitted their briefs, the legislation in at least two of the five States has failed."
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-343.pdf

The Court wants a consensus based on *Atkins, 536 U. S., at 315, not that more people want to see child rapists executed yet no legislative action has been put into practice to demonstrate that desire.

Bill: "The problem with constitutionalizing a ban on it for an entire class of offenses is exactly the one you point to: It produces stagnation in the law in a way that mere legislation does not."

I can see how that might be true in SOME instances. However, that would not apply under every circumstance.

Bill: "Then of course there's the other problem with it, to wit, that what the Justices proclaim as society's values often turn out to be -- guess what! -- the JUSTICE'S values."

You are right AGAIN. But it seems to be OK if those values are conservatives values, not liberal values, right?

Bill: "It is for exactly that reason that the results of any momentary consensus do not belong in the Constitution. They belong in legislation, which is far more likely to take account of changes in societal attitudes, and to be accurate in doing so -- and to be better able to fix mistakes -- than the courts are or were ever designed to be."

Bill, you are 100% right again. And the Court agrees with you. Read what the Court had to say in AGREEMENT with both you and me, "Further, evidence that, in the last 13 years, six new death penalty statutes have been enacted, three in the last two years, is not as significant as the data in Atkins, where 18 States between 1986 and 2001 had enacted legislation
prohibiting the execution of mentally retarded persons."

Your words do betray you, no? ;-)

Now, I'm interested in your opinion in regards to the strain and radical perspective of the Court's decision. I know there is no proof but as you stated, the Justices often inject THEIR values when making decisions.

Do you think that those who did not want to have a rapists convicted of child rape to get executed believe should that be the case, Blacks would be OVERrepresented in executions when the truth of the matter is, based on statistics you can find at BJS.gov, Whites commit more sex crimes, adult rape and child rape, than do Blacks; or perhaps there would be an increase number of White men executed as a result of this legislation?

As I stated, there is no proof that this is so, but special interest groups can speculate about anything they set their mind to speculate on.

Posted by: Ange | Jun 29, 2008 3:24:05 PM

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