Coker v. Georgia
Ginsburg Revisits Her Brief
Sixteen years later, during the confirmation hearings upon her appointment to the Supreme Court, Ruth Bader Ginsburg discussed her amicus curiae brief in the case and her continued support for the decision reached in Coker v. Georgia. The death penalty for rape, she said:
Where there was no death or serious permanent injury apart from the obvious psychological injury--that . . . was disproportionate for this reason: The death penalty for rape historically was part of a view of woman as belonging to the man, as first her father's possession. If she were raped before marriage, she was damaged goods . . . And if she were a married woman and she were raped, again, she would be regarded as damaged goods.
We've seen . . . in many places in the world, where women in Bangladesh, for example, were discarded, were treated as worthless because they had been raped. And that was what Coker against Georgia came out of, and that's the whole thrust of [my] brief, that this was made punishable by death because man's property had been taken from him because of the rape of the woman . . .
Pressed by Senator Charles E. Grassley (R-Iowa), who was questioning her, to concede that her brief reflected a view that the death penalty itself was unconstitutional, Ginsburg shot back:
. . . I urge you to read the entire . . . brief. I think you will find it to be exactly what I represented it to be. One of the reasons why rapes went unpunished, why women who had been raped suffered the indignity of having the police refuse to prosecute, was statutes of that order.
According to Linda Fairstein, director of the Sex Crimes Unit in the Manhattan district attorney's office, the conviction rate in rape cases has greatly increased during the 1980s and 1990s. In addition to the elimination of the death penalty for rape, other measures passed in the 1970s have helped to make this possible. These include the elimination of requirements that a rape be witnessed and its victim use earnest resistance, as well as the passage of rape shield laws which prohibit testimony about a victim's prior sexual history.