Feminism: Legal Aspects - Early Efforts To Reform The Law Of Rape And Battering, The Second Wave Critique Of Rape Law
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Even according to its critics, feminism has been one of the most important influences on the substantive criminal law in the past fifty years. Feminism has changed legal understandings of rape and battering as well as the law of homicide and self-defense. Indeed, there is a growing awareness and body of scholarship showing that feminist concerns are not simply limited to "women's" crimes—crimes either committed by female defendants (such as battered women who kill their husbands) or crimes disproportionately affecting women (such as rape and battering). Instead, the feminist critique emerges within the criminal law anywhere gender is found, namely anywhere the law reflects social norms about women, men, and their relationships. What follows considers four different feminist approaches: the call to equality, to subjectivity, to norms, and to civil rights.
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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…
By the 1980s, feminist theory had brought to bear upon rape law two significant and influential critiques—those of Catharine MacKinnon and Susan Estrich. MacKinnon argued that rape was part of a larger problem of female subordination. Rape law was not fundamentally about punishing forceful sexual acquisition, MacKinnon argued, but instead was intended to perpetuate male dominance by achievi…
Catharine MacKinnon's critique of rape law was a small part of a larger argument about the social subordination of women. That critique has focused attention not only on violence itself but also on representations of violence. MacKinnon argued that pornographic representations of women as subordinated objects (for example, women who experienced rape as pleasure) was central to the construct…
Feminist influence in the criminal law has not been limited to questions of either rape or assault, subordination or formal equality. It has also focused attention on questions of perspective and difference. Self-defense law has been influenced quite dramatically by feminists' insistence that the law failed to accommodate women's "different" perspective. In the case of …
In the late 1990s, criminal law scholars interested in feminism focused on new topics and old topics in new ways. From the original focus on "women's crimes," such as rape and battering, attention has turned toward the way in which gender norms affect more conventional distinctions within the criminal law, such as the line between murder and manslaughter. Some of this work has…
If feminism has had a strong influence on criminal law statutes, doctrine, and scholarship, it has also spurred efforts to attack questions of inequalities by means of federal law. In 1994, the Congress passed and the president signed the Violence Against Women Act, a federal statute rendering changes in federal criminal law and creating a new "gender-motivated crime" subject to civi…
——. Toward a Feminist Theory of the State. Cambridge, Mass.: Harvard University Press, 1989. ——. "Passion's Progress." Yale Law Journal 106 (March 1997): 1331–1448. ——. "The 'Normal' Successes and Failures of Feminism and the Criminal Law." Chicago-Kent Law Review 75, no. 3 (2000): 951–978. The…
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