Feminism: Legal Aspects

Early efforts to inject feminist consciousness within the criminal law emphasized formal equality. And, not surprisingly, feminist concern and writing tended to focus on those crimes that appeared to burden women unequally—battering and rape. Early feminist writers urged that stereotypes about women infected legal understandings and prevented adequate law enforcement. They stressed, for example, that prosecutors often failed to "believe" women because of these stereotypes. A short skirt, a messy past, or an intimate relationship were all reasons to assume that the victim had consented, provoked the incident, or fabricated it for manipulative reasons. This credibility gap resonated widely and became a part of the culture's understanding about why rape and assault laws had failed to protect women.

Based on this shift in cultural understanding, major efforts were launched in the 1970s to reform the law of rape and battering. In the case of battering, efforts focused on a new civil system of redress: A grassroots shelter movement advocated new laws authorizing emergency stay-away orders and criminal and civil penalties for violating those orders. In the case of rape, a national task force coordinated efforts to amend state rape statutes, recalibrating and renaming rape statutes, imposing gender neutral language, and limiting marital rape exceptions. While reform in the area of battering focused on prevention, legal doctrine itself was the target of much of the rape reform movement. Requirements of resistance, and corroboration of witnesses, were soon viewed with skepticism by judges and scholars. Legislatures enacted rape shield laws as courts jettisoned jury instructions warning that rape complaints were to be viewed with peculiar suspicion. By the end of the 1980s, the substantive criminal law of rape and the enforcement of domestic violence laws bore little resemblance to that which governed decades earlier.