* Gray, Plant, Mooty, Mooty & Bennett Professor of Law Emeritus,
University of Minnesota.
** Associate, Briggs & Morgan, Minneapolis, Minnesota. We are
indebted to Mary McLean, Dee Gibbons, and Laurie Newbauer for secretarial
assistance. Emily Pollock, Morgan Holcomb, Therese Kurkowski, Sara Maple-Lenz,
and Darcy Sherman did much of the research, supported by Deans Tom Sullivan,
Fred Morrison, Guy Charles, and David Wippman. Suzanne Thorpe and Piper Walter
of the Law Library provided indispensable assistance. Leslie Goldstein, Morgan
Holcomb, Mary Koss, Neil Malamuth, Robert King, Roger Park, and Michael Zuckert
read earlier drafts of all or part of the Article, providing valuable
suggestions. We were enlightened by conversations with Richard Frase, Michael Tonry,
and the late Paul Meehl, and by the comments of two anonymous peer reviewers
for this Journal. Of course, none of these scholars necessarily endorses all of
our conclusions, and we alone are responsible for any remaining errors. The
authors also wish to acknowledge their great debt to Rebecca Bryden. Comments
should be addressed to dpbryden@comcast.net.
[1 Many modern scholars study “sexual aggression” or “coercion” instead
of rape, often defining these terms very broadly to include not only rape and
other nonconsensual physical contacts but also lawful verbal pressure to engage
in sexual activity. We realize that the legal definition of rape is an
imperfect measure of coercion and varies somewhat from one state to another.
But the concepts of aggression and coercion are even more flexible, and we prefer
not to conflate acts whose gravity, legality, and moral acceptability differ
radically, under a potentially misleading umbrella label such as “sexual aggression.”
See generally notes 320, 328, infra. Accordingly, we focus here solely on rape,
but when discussing a study in which a much broader range of conduct was
included we will use the author’s label so as to alert our readers. As we use
the term, “rape” means non-consensual, heterosexual penetration. We have excluded
statutory rape, homosexual rape (outside prisons), and non-forcible sexual extortion
and deception because they raise too many additional issues and, in the case of
deception, are rarely illegal. See generally Wayne R. Lafave, Criminal Law
846-78 (4th student ed. 2003).]
[2 E.g., Randy Thornhill
& Craig T. Palmer, A Natural History of Rape: Biological Basis of Sexual
Coercion (2000); Antonia Abbey et al., Cross-Sectional Predictors of Sexual
Assault Perpetration in a Community Sample of Single African American and
Caucasian Men, 32 Aggressive Behav. 54 (2006); Katherine K. Baker, Once a
Rapist? Motivational Evidence and Relevancy in Rape Law, 110 Harv. L. Rev. 563 (1997);
Megan R. Yost & Eileen L. Zurbriggen, Gender Differences in the Enactment
of Sociosexuality: An Examination of Implicit Social Motives, Sexual Fantasies,
Coercive Sexual Attitudes, and Aggressive Sexual Behavior, 43 J. of Sex Res.
163 (2006); Eileen L. Zurbriggen, Social Motives and Cognitive Power-Sex
Associations: Predictors of Aggressive Behavior, 78 J. PERSONALITY & Soc.
Psychol. 559 (2000). Because non-motivational causes of rape often are thought
to have probative value in discerning rapists’ motives, and the concept of
motive has various meanings, many works that do not explicitly stress motivational
analyses nevertheless provide much evidence that is relevant to our topic. E.g., Martin L. Lalumiere et al., The
Causes of Rape: Understanding Individual Differences in Male Propensity for
Sexual Aggression (2005).]
[3 E.g., Jack Katz,
Seductions of Crime: Moral and Sensual Attractions in Doing Evil (1988).
However, the subject of animal and human motives (for many sorts of behavior)
is still studied extensively by evolutionary (and some other) psychologists.
See generally Motivation in Action (Jutta Heckhausen & Heinz Heckhausen
eds., 2008).]
[4 See, E.g., James Q. Wilson
& Richard J. Herrnstein, Crime and Human Nature: The Definitive Study of
the Causes of Crime 39 (1985): It is by no means clear that the most
interesting or useful way to look at crime is by trying to discover the motives
of individual criminals—why some offenders like to steal cash, others like stolen
cash plus a chance to beat upon its owner, and still others like violent
sex—any more than it is obvious that the best way to understand the economy is
by discovering why some persons keep their money in the bank, others use it to
buy tickets to boxing matches, and still others use it to buy the favors of a
prostitute. The motives of criminal (and of human) behavior are as varied as
the behavior itself; we come to an understanding of the general processes
shaping crime only when we abstract from particular motives and circumstances
to examine the factors that lead people to run greater or lesser risks in
choosing a course of action. These authors note that “[a]rguing about
typologies is a major preoccupation of many students of crime,” and they equate
this with a search for “motives,” but by this they mean criminals’ personality
types such as sociopathic rather than their motives in the sense of goals. See
id. at 40.]
[5 E.g., Benjamin Karpman,
The Sexual Offender and His Offenses: Etiology, Psychology, Psychodynamics and
Treatment (1954).]
[6 For a longer list, see id. at 10-20.]
[7 Freud’s popularity in America grew throughout the early twentieth
century, but his ideas remained controversial, reaching the summit of their
popularity roughly from 1945 1963. See generally 2 Nathan G. Hale, Jr., The
Rise and Crisis of Psychoanalysis in the United States: Freud and the Americans
1917-1985, at 136,258 (1995).]
[8 E.g., Sigmund Freud, Three
Contributions to the Theory of Sex, in The Basic Writings of Sigmund Freud 569
n.l (A. A. Brill ed., 1938) (“[Exhibitionism] is strongly dependent upon the
castration complex; it would emphasize again the integrity of one’s own (male) genitals
and repeat the infantile satisfaction of the lack of the penis in the female.”).
Freud noted that “[t]he sexuality of most men shows an admixture of aggression,
of a desire to subdue, the biological significance of which lies in the
necessity for overcoming the resistance of the sexual object by actions other
than mere courting.” Id. at 569.]
[9 E.g., David Abrahamsen,
Who Are the Guilty? 6-7 (1952) (asserting that pecuniary crimes are motivated
by insecurity that creates a need for “success”; money and power are only
instrumental to this underlying motive).]
[10 See John Forrester, The Seductions of Psychoanalysis: Freud, Lacan,
and Derrida 63 (1990). Freud probably did not regard the desire to rape an
adult woman as symptomatic of mental abnormality. As one psychoanalyst put it, “rape
differs from sexual perversions insofar as the offender seeks a normal sexual
object, an adult female, and a normal aim, genital intercourse.” Richard T.
Rada, Psychological Factors in Rapist Behavior, in Clinical Aspects of the
Rapist 21, 23 (Richard T. Rada ed., 1978). Thus oral sex would be a perversion-
as would pedophilia, sodomy, bestiality, fetishism, sadism, and masochism—but
forcible genital coupling, though wrong and illegal, would not. See generally
Elizabeth Janssen, Understanding the Rapist’s Mind, 31 Persp. Psychiatric Care 9,
11 (1995).
In a controversial footnote,
Freud indicated that women sometimes resist rapists with less than their full
strength because they unconsciously want intercourse. Sigmund Freud, The Psychopathology
of Everyday Life, 1901, at SE VIII 202-03 n.l (James Strachey ed., Alan Tyson
trans., Norton 1965). Forrester contends that feminist criticisms of this idea
are unjust because Freud did not regard the victim’s unconscious desire as
relevant to the man’s guilt. Forrester, supra
note 10, at 77.]
[11 Psychoanalysts commonly blamed parents, especially mothers, for
their children’s later maladies and misbehaviors—from asthma to schizophrenia
to psychosomatic illnesses to crime. Hale, supra
note 7, at 259, 265-66, 271, 283.]
[12 See, E.g., Murray L.
Cohen et al., The Psychology of Rapists, in Violence and Victims 113, 135
(Stefan A. Pasternack ed., 1975) (arguing that mothers of “Sex Aggression
Defusion” rapists are too lenient; fathers are cruel and sadistic); Richard T. Rada,
Sexual Psychopathology: Historical Survey and Basic Concepts, in Clinical
Aspects of the Rapist, supra note 10,
at 40 (noting that rapist’s mother “has frequently been rejecting or
inconsistent and undependable in supplying his basic nurturing needs,” which creates
his hostility toward women and a lasting desire for nuturance which creates a
feeling of dependency that he attempts to deny by hypermasculine behavior); cf.
Abrahamsen, supra note 9, at 44
(arguing that a boy commits a crime to “spite the law” and “because he is against
his parents who laid down the law to him”).]
[13 Rada, supra note 10, at
39.]
[14 James L. Mathis, Clear Thinking About Sexual Deviations 121 (1972)
(“[The rapist] must feel inferior in his masculine role and must conceive of
himself as unable to conquer the female without force.”).]
[15 Cohen et al., supra note
12, at 128-29 (stating that “sexual-aim” rapists are repressed homosexuals);
id. at 137 (noting that “excessive defenses against homosexuality through exaggerated
masculinity” are “predominate” among “aggressive-aim” rapists); Rada, supra note 10, at 41.]
[16 See 17 Sigmund Freud, The Standard Edition of the Complete
Psychological Works of Sigmund Freud 78 (assumes women are castrated), 232
(fears castration by father) (James Strachey et al. trans., 1953)]
[17 E.g., Emanuel F. Hammer,
A Psychoanalytic Hypothesis Concerning Sex Offenders: A Study by Clinical
Psychologic Techniques, 18 J. Clinical & Exper. Psychopathology 177, 177
(1957); Rada, supra note 10, at 11.]
[18 Barbara Toner, The Facts of Rape 79 (1977).]
[19 Rada, supra note 10, at
42.]
[20 Id. (quoting Freud).]
[21 Id.]
[22 For a fuller description, see id. at 3-58.]
[23 For example, many discussions of bad parenting might be
characterized either way, and some of those who said that many rapists are
sociopaths included this in their typologies of motives. E.g., Manfred S. Guttmacher & Henry Weihofen, Psychiatry And
The Law 116-17 (1952) (classifying rapes due to “pent-up sexual impulse,”
latent homosexuality, and misogynistic sadism as “sexual in origin,” but adding
that “anti-social” rapists who commit various crimes are “not primarily” sex
offenders). The last proposition is true in a sense, but not necessarily in the
sense that the goals of all of their crimes are nonsexual and identical.]
[24 On epistemological issues and scientific doubts, see 2 Hale, supra note 7, at 3, 6-7, 9, 26, 28, 30,
44, 51, 69, 156, 161-62, 164-65, 169, 171-72, 181-82, 198, 204-07, 236-40, 248,
259-64, 284-85, 300-02, 304-17, 361-72, 375, 385. Cultural changes had also undermined
Freud’s stature. As understood by most early twentieth-century Americans
Freudianism offered a liberating worldview to those who felt stifled by
religion and Victorian values; by the 1960s, however, religion’s grip had
loosened and the Victorian sexual code was gone. Freud had become a mainstream
icon; his views about sexuality were no longer avant garde and -with respect to
women and homosexuals—were increasingly criticized as sexist and heterosexist.
See generally id. at 4, 57-59, 79-80, 97-99, 101, 277, 288, 348, 386.]
[25 See generally id. at 314-15, 317-20, 323.]
[26 See E. J. Kanin, Male Sex Aggression and Three Psychiatric
Hypotheses, 1 J. Sex Res. 221, 223 (1965). (“Some writers . . . maintain the
anti-female sentiments appear because the mother effeminizes the boy and
consequently creates a faulty sex identification which psychologically burdens
him when he attempts to emancipate himself and enter the male world. Others ...
[perhaps a majority] stress that rejecting mothers are most apt to give rise to
sexually aggressive tendencies in their sons.”) (citation omitted). Kanin found
that 53.4% of his sample of sexually aggressive college males expressed some
degree of love for their mothers, in contrast to 70.6% of the nonaggressive
ones. Id. at 224. But this study
contains no data about respondents’ attitudes towards their fathers, siblings,
and people in general; the finding is subject to various interpretations. Kanin
himself considered some alternative explanations of the aggressors’ hostility
toward women. Id. at 223-27.]
[27 See note 15, supra. One
analysis concluded that, although some rapists are “feminine identified,” the
empirical evidence about whether rape was a defense against homosexual tendencies
was negative. Ron Langevin & Reuben A. Lang, The Courtship Disorders, in Variant
Sexuality: Research And Theory 202,220-21 (Glenn D. Wilson ed., 1987).]
[28 See notes 17-18 supra.]
[29 Murray L. Cohen et al., The Psychology of the Rapist, in 3 Seminars
in Psychiatry 307,312-13 (Aug. 1971).]
[30 Compare, E.g., Guttmacher
& Weihofen, supra note 23, with
A. Nicholas Groth, Men Who Rape: The Psychology Of The Offender (1979), and
Cohen et al., supra note 12. Karl
Popper taught that a theory isn’t scientific unless it is falsifiable, that is,
unless one can imagine an experiment that might disprove (“falsify”) a risky
prediction based on the theory. See generally Nassim Nicholas Taleb, Fooled By
Randomness: The Hidden Role of Chance in Life and in the Markets 122-28 (2d ed.
2004); Karl Popper, Intellectual Autobiography, in 1 The Philosophy of Karl
Popper 3, 29-32 (Paul Arthur Schlipp ed., 1974); Karl Popper, Intellectual
Autobiography, in 2 The Philosophy of Karl Popper 976-1013 (Paul Arthur Schlipp
ed., 1974). Others have offered various refinements. E.g., Paul E. Meehl, Theoretical Risks and Tabular Asterisks: Sir
Karl, Sir Ronald, and the Slow Progress of Soft Psychology, 46 J. Consulting
& Clinical Psychol. 806, 817-19 (1978). Popper believed that
psychoanalytical concepts were merely “pseudoscientific”: Unwilling to submit
their conjectures to falsification, Freudians claimed that virtually any empirical
observation was consistent with their theories. 1 Popper, supra, at 31; 2 Popper, supra,
at 985.]
[31 The Experimental Study of Freudian Theories xi (Hans J. Eysenck
& Glenn D. Wilson, eds., 1973) (quoting Freud).]
[32 E.g., Adolf Grunbaum, The
Foundations of Psychoanalysis: A Philosophical Critique 138 (1984). Grunbaum
argued (contrary to Popper) that Freud’s ideas were falsifiable, and not
necessarily mistaken, but nevertheless gravely flawed. Id. at 94, 109-11, 189.]
[33 According to Freud, the analysand often fails to recall “the
essential part” of what he has repressed, and so “he acquires no sense of
conviction of the correctness of the construction that has been communicated to
him” by the analyst. The latter is “the ultimate epistemic arbiter ....” 17
Freud, supra note 16, at 18. Even in
the case of consciously motivated behavior, says Grunbaum, there is no justification
for treating the analysand as having “privileged cognitive access to the
discernment of the motivational causes of his various actions ...Grunbaum, supra note 32, at 29.]
[34 2 Hale, supra note 7, at
3, 201, 204, 206-07. For a partial defense of Freud’s concepts, see Drew
Westen, The Scientific Legacy of Sigmand Freud: Toward a Psychodynamically
Informed Psychological Science, 124 Psychol. Bull. 333 (1998).]
[35 E.g., Albert Ellis &
Ralph Brancale, The Psychology of Sex Offenders (1956). This study’s sample
included virtually all of the first 300 persons convicted of illegal sex acts
under a New Jersey law requiring mental examinations before sentencing.
Although the study was better than most during that period, its sample did not
include the unreported or unprosecuted majority of rapists, and only eight men
convicted of forcible rape (and sixteen of serious sexual assaults not
constituting rape) were included.]
[36 Eysenck & Wilson, supra
note 31.]
[37 Id. at 386.]
[38 The authors also mentioned unsophisticated statistical methods and
failure to replicate experiments. Id.
at 386 90.]
[39 Id. at 123, 136, 154-55,
167 (illustrating the flexibility of Freudian notions).]
[40 Hammer, supra note 17.]
[41 These were the Rorschach Test, the Thematic Apperception Test, the
House-Tree Person Test, the Black Test, and in some instances the
Bender-Gestalt Test. Id. at 178.]
[42 Id. at 179. Hammer
explained the 55% rate for other felons on the ground that castration anxiety
also motivates some nonsexual offenses, with guns and knives being phallic
symbols. Id.]
[43 Id. at 183.]
[44 Id.]
[45 See generally Hale, supra
note 7, at 24, 85, 91, 93, 95.]
[46 Hammer, supra note 17, at
177.]
[47 See, E.g., Patrick
Lussier et al., Developmental Pathways of Deviance in Sexual Aggressors, 34
Crim. Just. & Behav. 1441, 1452 (2007) (“[T]he three-factor model appeared
to exhibit a better fit for sexual aggressors of children compared to
aggressors of adults.”).]
[48 Hammer, supra note 17, at
178.]
[49 Id. at 183.]
[50 Id.]
[51 Id. at 183. He
acknowledged that rapists in the general public might differ from convicts.]
[52 David P. Bryden & Sonja Lengnick, Rape in the Criminal Justice
System, 87 J. Crim. L. & Criminology 1194, 1195(1997).]
[53 Id. at 1210-18; see also
Courtney E. Ahrens et al., Understanding and Preventing Rape, in Florence L.
Denmark & Michele A. Paludi, Psychology of Women: A Handbook of Issues and
Theories 509, 512 (2d ed. 2008). The phenomenon of “case attrition” pervades
the criminal justice system and is not limited to crimes against women. Bryden
& Lengnick, supra note 52, at
1208-10.]
[54 Only about 20% of rapes are committed by strangers. Ronet Bachman
& Linda E. Saltzman, Bureau of Justice Statistics, U.S. Dep’t of Justice,
Violence Against Women: Estimates from the Redesigned Survey 1 (1995) (Special
Report). Yet as many as 80% of institutionalized rapists have been described as
strangers to their victims. E.g., R.J.
McCaldon, Rape, 67 Canadian J. Corrections 42-58 (1967); Deena Metzger, It Is Always
the Woman Who is Raped, 133 Am. J. psychiatry 405, 405 (1976).]
[55 See infra text accompanying notes 235-237 (comparing Groth’s
findings about convicts with Kanin’s about date rapists).]
[56 In a sample of college women, researchers found significantly
higher levels of threats of bodily harm, hitting and slapping, and use of
weapons reported by survivors of stranger rape compared to acquaintance rape.
H. Harrington Cleveland et al., Rape Tactics from the Survivors Perspective:
Contextual Dependence and Within-Event Independence, 14 J. Interpersonal
Violence 532, 541, 543 (1999). Presumably because a conspicuous weapon often
deters resistance, women are more likely to be injured in violent encounters with
intimates than with strangers, however. Bachman & Saltzman, supra note 54, at 5.]
[57 “About a third of rape defendants had one or more additional felony
convictions collateral to the conviction for rape. Collateral convictions were associated
with an increased probability of receiving a prison sentence [after
conviction].” Bureau of Justice Statistics, U.S. Dep’t of Justice, Sex Offenses
and Offenders: An Analysis of Data on Rape and Sexual Assault 14 (1997) (data
concerning 1995). According to a 1994 estimate, 64% of those serving time in
state prisons for forcible rape had prior convictions; 26% had prior
convictions for violence; and 10% had prior convictions for rape or sexual assault.
Id. at 22 fig.23. In a study of
re-arrests of convicted rapists released from prisons, researchers found that
51.5% were re-arrested for a new crime within three years; only 7.7%, however,
were re-arrested for rape, fewer than for assault (10.7%), robbery (8.5%), or a
nonviolent crime (24%). See id. at 26 fig.27.]
[58 Compare Ron Langevin et al., Are Rapists Sexually Anomalous,
Aggressive, or Both?, in Erotic Preference, Gender Identity, and Aggression in
Men: New Research Studies 17, 29 (Ron Langevin ed., 1984) (noting that 78% of a
sample of incarcerated rapists were diagnosed as suffering from a “personality
disorder”), with Mary P. Koss et al., Nonstranger Sexual Aggression: A
Discriminant Analysis of the Psychological Characteristics of Undetected
Offenders, 12 Sex Roles 981, 990 (1985). Contrary to studies of incarcerated
rapists, these authors found that self-disclosed college rapists did not differ
from non-rapists on measures of psychopathy. Id. at 991 (“Offenders who engage in sexual aggression with
complete strangers may be more likely to demonstrate psychopathic characteristics
typical of violent criminals such as impulsivity, tendency to use people as objects,
inability to care about others, and extreme hostility.”).]
[59 Neil Malamuth has stressed that some characteristics of
incarcerated men are also present in undetected rapists. Neil M. Malamuth,
Criminal and Noncriminal Sexual Aggressors: Integrating Psychopathy in a
Hierarchical-Meditational Confluence Model, 989 Annals N.Y. Acad. Scl 33
(2003); cf. Richard B. Felson, Social Learning, Sexual and Physical Abuse, and
Adult Crime, 35 Aggressive Behav. 489 (2009). But Malamuth does not deny that
the incarcerated group has a higher proportion of sadistically inclined, highly
violent, and generally antisocial men (including psychopaths). E-mail from
Professor Neil Malamuth of UCLA to senior author (Jan. 11, 2010, 4:48 PST) (on
file with author). This is, of course, especially true when the incarcerated
rapists are compared to samples of anonymously self-acknowledged college
rapists. See, E.g., Koss et al., supra note 58, at 990.]
[60 See Hammer, supra note
17, at 183.]
[61 See id. at 181]
[62 Walter Bromberg, Crime and the Mind (1st ed. 1948), as quoted in
Karpman, supra note 5, at 348.
Anticipating later feminist themes, Alfred Adler contended that dominance,
including though not limited to patriarchal control of women, is a common and powerful
male motive. His ideas on men’s quests for power and dominance and incorrect belief
in women’s innate inferiority were well ahead of his time. See, E.g., Alfred Adler, Cooperation Between
the Sexes: Writings on Women, Love & Marriage, Sexuality and its Disorders
3-4 (Heinz L. Ansbacher & Rowenz A. Ansbacher, eds. 1978) (male strivings
for power and superiority); id. at 9-11 (effect of same on boys); id. at 34
(child learns to regard aggression as masculine). Apart from psychologists and
feminists, the most eminent early authority on rape was Menachim Amir, whose
Patterns in Forcible Rape became a standard reference. Like the feminists, Amir
adopted a sociological perspective. But his sociological analysis differed markedly
from theirs. After compiling data from police records, he concluded that rapes
in Philadelphia were products of a subculture of violence, which leads to
various anti-social behaviors. Menachim Amir, Patterns in Forcible Rape 325-31
(1971). Amir’s sample of rapists consisted overwhelmingly of inner-city black
youths, many of them complete strangers to the victim, and of course unreported
rapes were not included. Thus, Amir’s analysis reshaped but reaffirmed the
conventional psychologists’ belief that rapists are deviant outsiders. For a
summary of other, roughly contemporaneous scholarly analyses of rape, see Rada,
supra note 10, at 10-21.]
[63 “Feminist” has several meanings, and some important differences
exist among the various schools of feminist thought. See generally C. Quince
Hopkins & Mary P. Koss, Incorporating Feminist Theory and Insights into a
Restorative Justice Response to Sex Offenses, 11 Violence Against Women 693,
698-707 (2005). Even so, we believe that our generalizations reflect the
consensus of the most influential feminist rape scholars during the 1970s. For
our purposes, “feminist” refers to those scholars who emphasize the role of patriarchy,
and particularly rapists’ patriarchal attitudes, as a cause of rape. Whether
this emphasis entails or correlates with nonsexual motivational theories is a
question that we will discuss in this Article.
A major exception to the
post-1980 decline in clinicians’ influence is A. Nicholas Groth, whose
conclusions have been very influential. But his motivational theories, though
largely based on clinical observations, strongly emphasize power as the most
common “primary motive; while almost entirely devoid of cultural theories, his
analysis is more feminist than Freudian. See infra notes 261 281 and
accompanying text (power-control rapists). The Freudian psychologists such as
Rada lost their stature after the 1970s, if not earlier. They have been
replaced by social psychologists and others of diverse affiliations, whose methodologies
usually are more quantitative and whose conclusions sometimes support feminist
positions.]
[64 E.g., Susan Griffin,
Rape: The Alt-American Crime, 10 Ramparts 26, 35 (1971) (“The same men and
power structure who victimize women are engaged in the act of raping Vietnam,
raping Black people and the very earth we live upon.”). This perspective was confirmed
by feminist activists’ experience of male domination in the civil rights and
anti war movements, where they were valued mainly for their clerical and sexual
services. That led to the formation of women’s organizations where an
anti-patriarchal ideology soon developed. On the evolution of this “second wave”
feminism, see generally Ruth Rosen, The World Split Open: How the Modern Women’s
Movement Changed America 107, 116, 122, 126, 129(2001).]
[65 See, E.g., Rada, supra note 10, at 2.]
[66 Some of the earliest feminist rape scholars criticized the
stereotype of the rapist as a crazy stranger. E.g., Diana E. H. Russell, The Politics of Rape: The Victim’s Perspective
12, 43, 115, 117-26, 191 (1984). This stereotype ignored rapes by acquaintances—who
usually did not resemble the stereotype—and thus implied that their rapes were
not “real rape.” Feminists said that most rapists were psychologically normal
and shaped by mainstream cultural norms. Id.
at 69 (rapists are “normal men”); cf. Griffin, supra note 64, at 27 (arguing that our culture encourages rape; it “expects
aggression from the male” and “passivity from the female”); id. at 32
(describing role of double standard, prejudice against victims who lack a “good
reputation”); id. at 33 (arguing femininity creates “perfect victim”).]
[67 See, E.g., Russell, supra note 66, at 11 (putting the victim
on trial); id. at 44 (victims suspected of collusion); id. at 48
(self-blaming); id. at 126 (male victim-blaming).]
[68 See, E.g., id. at 22
(doctor joked about rape), id. at 47 (brother didn’t believe her); id. at 146
(husband angry at her); id. at 107 (police and courts don’t enforce the law);
id. at 173 (hostile judge). In the early 1970s, two scholars found that in
informal conversations about their research on rape, “[a]gain and again we were
given opinions and told jokes by businessmen, academicians, physicians, strict
psychoanalysts, and others to the effect that you can’t rape a woman unless she
wants it or that a woman enjoys the rape experience.” Lynda Lytle Holmstrom
& Ann Wolbert Burgess, The Victim of Rape 61 n. 16 (1978). In appraising
such anecdotes, one should distinguish between the debatable question of whether
false rape reports were and are a significant problem and the question whether,
even on that assumption, public and official skepticism was often excessive, as
we believe it was. We recognize the danger of assuming that a crime victim’s
account is accurate in all respects, but on the subject of public and official
leniency toward acquaintance rapists, while the details of some analyses are
open to question, the general tendency toward leniency depicted by feminists in
the 1970s is exactly what one would expect, given the paucity of women in the
administration of justice and other positions of power. Moreover, the excessive
leniency toward acquaintance rapists is corroborated by other sources and not disputed
by non-feminist scholars. See generally Bryden & Lengrick, supra note 52, at 1255-74 (1997). The
main uncertainty is about the proportion of rape reports that are false; this
obviously is important in evaluating some accusations of undue official
skepticism toward alleged victims, but in our judgment the anti-victim biases
that feminists documented during the 1970s cannot be adequately explained
solely on this ground. See generally id. at 1295-315.]
[69 Russell observed in 1975 that “[m]ore women are rejecting
unofficial curfews and male chaperones. They are walking alone at night,
hitchhiking, going to places of entertainment alone or with other women.”
Russell, supra note 66, at 14.
Meanwhile, there was “a general trend through the 1960s of more women engaging
in premarital sex, with more rapid increases during the 1970s ....” Edward O.
Laumann et al., The Social Organization of Sexuality: Sexual Practices in the
United States 323 (1994).]
[70 E.g., Susan BROWNMILLER,
Against Our Will: Men, Women and Rape 354-55 (1975). The academic subject of
victim-precipitation is not limited to rape and need not involve leniency
toward the criminal. But in the context of acquaintance rape (unlike, say, burglary)
many people (including some scholars), tended to conflate questions of the victim’s
imprudence and the perpetrator’s guilt. In response to the excessive leniency associated
with the notion of victim-precipitated rapes, feminists generally reject the
concept or contend that victim-precipitation is extremely rare, rather than
arguing that the victim’s imprudence and the perpetrator’s guilt are different
issues. See generally Bryden & Lengnick, supra note 52, at 1342—47.]
[71 See generally Bryden & Lengnick, supra note 52, at 1329-32. Concerning the urgency of male desire,
Griffin deplored the “myth that men have greater sexual needs, that their
sexuality is more urgent than women’s.” Griffin, supra note 64, at 27. Clark and Lewis apparently dissented from
Griffin’s assertion, but their opinion was (and remains) atypical of feminist
rape scholars who have explicitly addressed the question. See Lorenne M.G.
Clark & Debra J. Lewis, Rape: The Price of Coercive Sexuality 144 (1977).]
[72 See supra note 30.]
[73 See, E.g., BROWNMILLER, supra note 70, at 320-21.]
[74 Compare supra notes 12-18
and accompanying text, with infra notes 78-99, 187, 249 and accompanying text.
The importance of rapists’ hostility toward women in psychiatric explanations
of rape is discussed and evaluated in Kanin, supra note 26, at 222-24. See generally supra notes 12-18 and accompanying text.]
[75 See generally BROWNMILLER, supra
note 70, at 194-197. Some of the most popular expositions of this thesis were
Germaine Greer, The Female Eunuch 245 (1972) (arguing that rapists are
motivated by hatred of women, not lust); Griffin, supra note 64, at 35 (arguing that rape is a form of “mass
terrorism”); Kate Millett, Sexual Politics 43^4 (1969) (arguing that rape is a
weapon of patriarchy).]
[76 BROWNMILLER, supra note
70.]
[77 Id. at 18-19. Her
analysis concluded near the end of the thirteenth century in England, when the
second Statute of Westminster established the concept of rape as a public
wrong, punishable by death. Id. at
30. This improvement “read better on parchment than it worked in real life.” Id. “An analysis of other ancient
societies, which BROWNMILLER did not consider, confirms her view of rape as a
property crime.” Stephen P. Pistono, Susan BROWNMILLER and the History of Rape,
14 Women’s Studies 265, 270 (1988).]
[78 BROWNMILLER, supra note
70, at 15.]
[79 Id. at 254-5.]
[80 Bryden & Lengnick, supra
note 52, at 1358.]
[81 As with any crime, cases of undue leniency (as well as mistaken
convictions) can be found, but our generalization, though ignored by BROWNMILLER
and most other early rape scholars, is not disputed by those who advert to the
issue. See, E.g., Susan Estrich, Real
Rape 3-6 (1987). The Chicago Jury Project’s findings, published in 1966 and
cited by BROWNMILLER, supra note 70,
at 373-74, had included data that distinguished very sharply between “simple”
rapes and “aggravated” cases. Harry Kalven, Jr. & Hans Zeisel, The American
Jury 253 tbl.72 (1966). The aggravated cases were defined as ones
in which there is evidence of extrinsic violence or in which there are
several assailants involved, or in which the defendant and the victim are
complete strangers at the time of the event; simple rape, another term of art,
includes all other cases, that is, the cases in which none of the aggravating
circumstances is present.
Id. at 252. In simple rape
cases, juries were extremely reluctant to convict on a rape charge, though
often willing to convict the rape defendant of a lesser crime; judges often
disagreed with the acquittals. In aggravated cases, the authors found no such
evidence of jury bias. The rapes described in Against Our Will were nearly all
of the aggravated type; they often combined two or even all three of the
aggravating factors. See. E.g., BROWNMILLER,
supra note 70, at 31-104 (discussing
rapes committed by soldiers during military conflicts).
The greater willingness to convict stranger rapists has been found to
exist even in cases in which the stranger’s victim had violated a prudential
norm of female conduct. See generally Bryden & Lengnick, supra note 52, at 1268-69. In a
relatively recent study of eight Western countries, the average time served (in
months) per rape conviction was found to be invariably much lower than for
homicide but higher than for nonsexual assault as well as residential burglary,
motor vehicle theft, and robbery. Alfred Blumstein, Michael Tonry, & Asheley
Van Ness, Cross National Measures of Puniliveness, in Crime and Punishment in Western
Countries, 1980-1999, at 347, 355 (Michael Tonry and David P. Farrington, eds.,
2005). Statistics on the probability of commitment per conviction showed the
same pattern. Id. at 354. The rate of
convictions (per 1,000 recorded crimes) was a mixed picture, but in the United
States that rate for rape was higher than for nonsexual assault, residential burglary,
and motor vehicle theft. Id. 354. We
mention these figures, not to cast doubt on accusations in the 1970s (or even
perhaps today) of excessive leniency in certain types of acquaintance cases, an
issue on which they are uninformative, but solely to rebut the analogy between
rape and lynching.]
[82 This may have been a consequence of her historical rather than
empirical research. The rapes mentioned in historical works are,
disproportionately, the most horrific ones, including those committed by brutal
warriors full of ethnic hatred. Social-scientific studies of rape were much
scarcer in 1975 than today and—for a popular audience—less dramatic than the
often exceptionally gruesome rapes that BROWNMILLER discussed.]
[83 BROWNMILLER, supra note
70, at 64.]
[84 Id. at 32.]
[85 Id. at 65.]
[86 E.g., id. at 32, 37, 41.]
[87 Id. at 32, 56, 65-67.]
[88 Id. at 40, 56.]
[89 Id. at 49, 56.]
[90 Id. at 107 (“They show
each other what they can do.”).]
[91 Id. at 33 ( “[T]hey rape to] prove their newly won superiority”);
id. at 35 (“[Rape is] the act of a conqueror . . . [and] a hallmark of success
in battle”).]
[92
Id. at 35.]
[93 Id. at 32.]
[94 Whether out of concern for the victims, to ensure a modicum of
civilian cooperation, or to avoid adverse publicity at home, some commanders
have sought to minimize rape, though others have shrugged it off as inevitable
in war. See, E.g., Giles MacDonogh, After
the Reich: The Brutal History of The Allied Occupation 26, 34 (2007) (noting that
Soviet commanders generally turned a blind eye to rapes of Germans); id. at 56 (mentioning
that after hearing of a gang rape, a local commander shot four of his own men);
id. at 98 (noting threats to punish rapists were unsuccessful); id. at 102
(explaining that rape declined only when Soviet authorities realized it was
damaging their relations with the civilian populace); id. at 240, 242 (noting
that American authorities began to punish rapes and to seek good relations with
German civilians). One should remember that murders of surrendering, disabled,
or captured enemy males are also sometimes ignored by superior officers, not
necessarily because of long-term ethnic animosity but because taking prisoners is
militarily inconvenient, or “this is war,” or “they do it to us,” or to avoid
bad publicity in the civilian media. See, E.g.,
Rick Atkinson, The Day of Battle: The War in Sicily and Italy, 1943-1944, at
117-21 (2007) (noting leniency toward Americans who executed Italian
prisoners). Also during World War II, although the “most aggravated” rapes by Soviet
troops were of German (and Hungarian) women, the Red Army in Austria “raped wherever
they went”; their victims included some Russian, Ukrainian, and Yugoslav women.
MacDonogh, supra note 94, at 25-26.
Concerning rapes of German women, MacDonogh stresses the Soviet desire for
vengeance—to humiliate both the women and their male relatives. Id. at 26. But he also found evidence of
a sexual motive: “Added to the semi official sanction, the Red Army was
sex-starved. Its soldiers had been fighting for four years, and in most cases
they had not received compassionate leave. The raping became worse again after
June 23, 1945, when many female soldiers were sent back to Russia.” Id. at 26-27. Similarly, Beevor
perceives both vengeance and sexual desire in allied soldiers’ rapes. Antony
Beevor, The Fall of Berlin 1945, at 326-27 (2002). In the later stage of the
conquest of Germany, “most [Soviet] soldier rapists did not demonstrate
gratuitous violence, provided the woman did not resist.” Id. at 326. However, another historian, after noting that the
Soviet soldiers “shot [German] civilians by the thousand, men, women and children,”
concludes that their rapes had “very little to do with releasing months and
years of sexual frustration and pent-up lust; other factors, notably hatred and
aggression, were far more important.” As evidence of this, he reports that “[r]ape
was often accompanied by torture and mutilation and frequently ended in the
victim being shot or bludgeoned to death.” Richard J. Evans, The Third Reich at
War 710 (2009). In our opinion, by far the most plausible hypothesis is that
the Soviet soldiers’ motives were a mixture of sex and revenge, and that the
brutality of the war plus the likelihood of official leniency—consistent with
any theory about individual soldiers’ motives—were extremely important causes.]
[95 She does not wholly ignore the general possibility of a sexual
motive; in places, she seems to take it for granted, see, E.g., BROWNMILLER, supra
note 70, at 37 (“[T]he original impulse to rape does not need a sophisticated
political motivation.”), but in others she tries to rebut it. E.g., id. at 117, 152. And in most
specific contexts, she describes what she believes to be a nonsexual motive,
with no consideration of the possibility that the motive was sexual or mixed.]
[96 E.g., id., at 121-23 (noting
that in pogroms Jewish women were raped while both sexes suffered nonsexual
assaults and murders); id. at 126 (noting that mob violence against Mormons and
blacks included but was not limited to rape); id. at 57-61 (noting that
Japanese atrocities against Chinese in Nanking included murder as well as
rape). There are, of course, countless examples: During the Red Army’s advance
through East Prussia, a German civilian recalls, “a man was worth less than the
watch he wore.” MacDonogh, supra note
94, at 50 (internal citations omitted). A village girl was raped by an entire
tank squadron, while a man was shot and fed to pigs. Id.
Rapes of enemy men do not appear in most accounts of rape during World
War II and may be only a minute fraction of wartime rapes. See, E.g., id. at 79 (noting that French Moroccan
troops occupying Stuttgart in World War II raped “perhaps 3,000” women and “eight
men”). Perhaps male victims were more reluctant to report having been raped.
More recently, there was a “sudden spike in male rape cases” by armed groups in
the Congo, described as “yet another way for armed groups to humiliate and
demoralize Congolese communities into submission,” along with rapes of “hundreds
of thousands” of women and massacres of both sexes. Jeffrey Gettleman, Latest
Tragic Symbol of an Unhealed Congo: Male Rape Victims, N.Y. Times, Aug. 5,
2009, at A1.]
[97 BROWNMILLER, supra note
70, at 153. In a variation of BROWNMILLER’s analysis, bell hooks, a prominent
African-American scholar, argued that the real motive for rapes of slaves was “to
obtain absolute allegiance and obedience to the white imperialistic order” and
thus was not to satisfy sexual lust but to demoralize and dehumanize black
women, bell hooks, Ain’t I a Woman: Black Women and Feminism 27 (1981). She
criticized BROWNMILLER’s failure to discuss the effects of rapes on the
subsequent status of black women. Id.
at 51-52. Like BROWNMILLER, she failed to explain why the slave owners found it
necessary or profitable to demoralize their female slaves in this way, nor why,
as her account implies, they were not interested in forcibly obtaining sexual
pleasure from them.]
[98 BROWNMILLER, supra note
70, at 154.]
[99 She repeatedly mentioned Albert De Salvo (“the Boston Strangler”), “a
killer who strangled and stabbed eleven women, many of them elderly, and left
their sexually mutilated bodies in garish postures with a nylon stocking
knotted about the neck,” leading to a nationwide manhunt. BROWNMILLER, supra note 70, at 200 passim. DeSalvo
epitomized the type of “fiend” that the media publicized, the public abhorred,
the authorities pursued and the psychologists sought to understand. Despite her
own references to such cases, BROWNMILLER criticized psychologists for exactly
the same fallacy: “Although the psycho rapist, whatever his family background,
certainly does exist, just as the psycho murderer certainly does exist, he is
the exception and not the rule. The typical American perpetrator of forcible
rape is little more than an aggressive, hostile youth who chooses to do
violence to women.” Id. at 176.]
[100 See generally Mary P. Koss, Empirically Enhanced Reflections on 20
Years of Rape Research, 20 J. Interpersonal Violence 100 (2005).]
[101 For an outstandingly thorough description and analysis of the
literature, see Lalumiere et al., supra
note 2. A valuable source of comparisons with other violent crimes is Richard
B. Felson, Violence and Gender Reexamined (2002). Other helpful summaries
include Mary P. Koss & Mary R. Harvey, The Rape Victim: Clinical and Community
Interventions 1-41 (2d ed. 1991); Klaus Drieschner & Alfred Lange, A Review
of Cognitive Factors in the Etiology of Rape: Theories, Empirical Studies, and Implications,
19 Clinical Psychol. Rev. 57 (1999); Patrick Lussier et al., Developmental Pathways
of Deviance in Sexual Aggressors, 34 Crim. Just. & Behav. 1441 (2007);
Vanessa Vega & Neil M. Malamuth, Predicting Sexual Aggression: The Role of
Pornography in the Context of General and Specific Risk Factors, 33 Aggressive
Behavior 104 (2007).]
[102 For example, despite massive research, pornography’s effects are
still debated. See infra note 431.]
[103 For practical reasons, social-scientific researchers usually adopt
suboptimal procedures, such as studying convicts or student volunteers instead
of random samples of the general public, and the studies typically only show
correlations, not necessarily causation. But on some topics researchers have
employed various samples and methodologies; when their findings converge,
conclusions can be drawn with greater confidence than would be warranted if
only one type of study had been conducted. See, E.g., Drew A. Kingston et al., The Importance of Individual
Differences in Pornography Use: Theoretical Perspectives and Implications for Treating
Sexual Offenders, 46 J. Sex Res. 216 (2009).]
[104 We are aware of the epistemological differences between social
science and the natural sciences. See generally Meehl, supra note 30. But our comparison is with motivational dogmatists,
not with chemists.]
[105 E.g., Shelley L. Brown
& Adelle E. Forth, Psychopathy and Sexual Assault: Static Risk Factors,
Emotional Precursors, and Rapist Subtypes, J. Consulting & Clinical Psychol.
848, 848 (1997); Mary P. Koss, Evolutionary Models of Why Men Rape: Acknowledging
the Complexities, in Evolution, Gender, and Rape 191, 201 (Cheryl Brown Travis
ed., 2003); Devon L. Polaschek & Tony Ward, The Implicit Theories of Potential
Rapists, What Our Questionnaires Tell Us, 1 Aggression & Violent Behav. 385
(2002). Recognition of the possible inadequacies of samples of imprisoned
rapists, though not universal, is now more common. See, E.g., Drieschner & Lange, supra
note 101, at 58, 59; Lynn M. Pazzani, The Factors Affecting Sexual Assaults
Committed by Strangers and Acquaintances, 13 Violence Against Women 717,718
(2007).]
[106 See generally Charlene L. Muehlenhard et al., Is Rape Sex or
Violence? Conceptual Issues and Implications, in Sex, Power, Conflict:
Evolutionary and Feminist Perspectives 119,124 (David M. Buss & Neil M.
Malamuth eds., 1996).]
[107 E.g., Baker, supra note 2, at 566, 599, 603, 606-08,
610, 615 (discussing various allegedly predominant motives for rape).]
[108 Muehlenhard, supra note
106, at 129; see, E.g., Nat’l Res.
Council, Understanding Violence Against Women 59 (1996) (“Violence against
women is widely believed to be motivated by needs to dominate women ....
[MJotives of power and anger are more prominent in the rationalizations for
sexual aggression than sexual desires.”); Jericho M. Hockett et al., Oppression
Through Acceptance? Predicting Rape Myth Acceptance and Attitudes Toward Rape
Victims, 15 Violence Against Women 877, 877 (2009) (“Feminist theories of rape
motivation are based on research suggesting a relationship between dominance
and sexual aggression.”). Another author, while agreeing that feminist discussions
of rapists’ motives have been dominated by nonsexual theories, adds that “these
were political slogans, not scientific propositions”; they were “deemed
necessary to reverse popular misconceptions about rape.” Jerry A. Coyne, Of
Vice and Men: A Case Study in Evolutionary Psychology, in Evolution, Gender,
and Rape, supra note 105, at 171,
176.
Radical feminists, who perceive strong similarities between rape and
all other heterosexual intercourse under patriarchy, may seem to be an
exception to Muehlenhard’s generalization, but that is arguable. See Thornhill
& Palmer, supra note 2, at
126-27.]
[109 See infra notes 465-70 and accompanying text.]
[110 See generally Owen D. Jones, Law and the Biology of Rape:
Reflections on Transitions, II Hastings Women’s L.J. 151, 165-69 (2000). For
examples of efforts to define the concept of motive more precisely, see David
Lisak & Susan Roth, Motivational Factors in Nonincarcerated Sexually
Aggressive Men, 55 J. Personality & Soc. Psychol. 795, 796 (1988);
Zurbriggen, supra note 2, at 559.]
[111 Quoted in Nicola Gavey, Just Sex?: The Cultural Scaffolding of
Rape 32 (2005). Gavey believes that this was a “clarification” of the “frequently
misunderstood position” of feminists. Does she mean that BROWNMILLER and other
feminists have been saying all along that rapists are primarily sexually
motivated?]
[112 According to one scholar, a motive is “a recurrent concern for a
goal state based on a natural incentive—a concern that energizes, orients, and
selects behavior.” David C. McClelland, Human Motivation 590 (1985). McClelland
distinguishes between motives and values—”the ideas people have about what is
important in life or to them”—which sometimes are more influential. Id. at 592, 601. He notes that many
determinants of behavior— including beliefs and expectations—are not
motivational. Id. at 4, 6, 33.
Another authority defines motives as “the factors that direct and energize the
behavior of humans and other organisms.” Robert S. Feldman, Essentials of
Understanding Psychology 301 (6th ed. 2005). Unlike “goal,” this definition
might be interpreted to include some personality traits such as aggressiveness
as well as beliefs and expectations.
No clear and concise definition
of this word captures all of its meanings. Differently phrased, our definition
appears in most dictionaries. E.g.,
Random House Webster’s Unabridged Dictionary 1254 (2d ed. 2001). But
dictionaries also list other perhaps broader meanings. These include “an inward
prompting or impulse,” 9 Oxford English Dictionary 1131 (J.A. Simpson &
E.S.C. Weiner, eds., 2d ed. 1989), available at http://dictionary.oed.com, “an
inner urge,” Random House Wesbster’s Unabridged Dictionary, supra, a “stimulus,” Webster’s Third
International Dictionary Unabridged 1475 (Philip Babcock ed., 2002), “an
emotion, desire or appetite,” Webster’s Third New International Dictionary 1475
(Philip Babcock Gove ed., 1976), Encarta World English Dictionary 1180 (1999),
and “[a] moving or inciting cause” 9 Oxford English Dictionary, supra, at 1132. Cf. Thornhill &
Palmer, supra note 2, at 66 (noting that
the low “cost” of rape in a particular situation can be a “motive” for the
crime); Brown & Forth, supra note
105, at 848, 851-52 (1997) (equating “motivations” with emotional states during
the twenty-four hours prior to the rape, including anger, depression,
alienation, general frustration, sexual frustration, stress, and feelings of
boredom and tiredness).]
[113 Revenge, unlike anger, is a goal, and therefore our definition
requires some difficult distinctions between angry men who sought sex mainly in
order to obtain revenge and those whose anger simply disinhibited them from
using force to satisfy their sexual desires. See infra text accompanying notes
221 234. Concerning intoxication, see generally Lalumiere ET AL., supra note 2, at 138-40.]
[114 E.g., Baker, supra note 2, at 566, 599, 604 (sexual
motive); id. at 606-19 (other motives). Another author says that rapes are “sometimes
. .. partly about sex” and proceeds to list other things that they are “about”:
contempt for women’s bodily integrity; a feeling of sexual entitlement; sexual
repulsion, rage, and fear; domination; or “a homosexual event by which one
group of men express its domination over another group of men.” Thus, rape is a
“multidimensional phenomenon, offering a large amount of variation.” Michael
Kimmel, An Unnatural History of Rape, in Evolution, Gender, and Rape, supra note 105, at 221, 224.]
[115 Richard A. Posner, Sex and Reason 385-86 (1992).]
[116 Id. at 386.]
[117 For arguments in favor of the proposition that rapists are
motivated by sexual desire, see Felson, supra
note 101, at 149 -60.]
[118 Lalumiere et al., supra
note 2, at 10-11. A prominent evolutionary psychologist supported the former
explanation. Donald Symons, The Evolution of Human Sexuality 281 (1979).]
[119 Paul Gebhard et al. completed a pioneering study in 1965. Paul H.
Gebhard et. al., Sex Offenders: An Analysis of Types (1965). Although this
study’s methodology has been criticized, see Rada, supra note 10. at 3, its findings were substantially similar to
those of more recent researchers employing different methodologies. Comparing
convicted rapists with men who had no such record, the Gebhard study included
several findings that appear in subsequent research but also some that usually
do not. Examples of the latter were that the rapists were more likely to have
practiced both active and passive oral sex (in both they had nearly double the
control group’s rate), Gebhard, supra,
at 185; to have had sexual contacts with animals (nearly 19% compared to the
control group’s 8%), id. at 192; to prefer sexually experienced brides, id. at
187; to have frequent marital coitus, id. at 188; to have committed adultery
with a non-prostitute (77% of those who had ever been married had had extramarital
coitus), id. at 189; and in every age period to masturbate, id. at 182.]
[120 E.g., Lussier et al., supra note 101, at 1449, 1456. “Aggressive
and antisocial behavior and poor psychosocial adjustment in both boys and girls
are associated with early sexual intercourse.” Lalumiere et al., supra note 2, at 70. See generally id.
at 72.]
[121 See generally Lalumiere et al., supra note 2, at 75. Cf. Abbey et al., supra note 2, at 59, 63; Yost & Zurbriggen, supra note 2. In a sample of 1,846
college men, the “sexually assaultive” ones (essentially rapists) had had a
mean of fourteen sexual intercourse partners, compared with means of eight for “sexually
abusive” (used force but only for kissing or petting or attempted rape) and
five tor “non-aggressive” (no force, threat, or extreme verbal pressure) men.
Mary P. Koss et al., supra note 100,
at 984-85.]
[122 Abbey et al., supra note
2, at 59, 63.]
[123 Lussier et al., supra
note 101, at 1449, 1456-57 (noting the high level of sexualization found to be
related to sexual aggression in adulthood).]
[124 Eugene J. Kanin, Date Rape: Unofficial Criminals and Victims, 9
Victimology 95, 98-99(1984); Lussier et al., supra note 101, at 1449.]
[125 E.g., Lussier et al., supra note 101, at 1449 (item in “[s]exualization”
or impersonal sex scale), 1456-57 (high level of sexualization found to be
related to sexual aggression in adulthood).]
[126 Id.]
[127 Id.]
[128 Gebhard, supra note 119,
at 188 (frequency of marital intercourse).]
[129 In a “convenience” sample of male college volunteers, Kanin found
that the self acknowledged rapists reported an average of 1.5 orgasms per week
while those who denied having raped reported only 0.8 per month. Kanin, supra note 124, at 99. In an earlier
study, he found that the mean number of ejaculations per week, from any source
including masturbation, estimated by the subjects to be necessary for their “satisfaction”
was 3.67 for the sexually aggressive males and 2.69 for the nonaggressive.
Kanin, supra note 26, at 228; cf.
Martin P. Kafka, Hypersexual Desire in Males: An Operational Definition and
Clinical Implications for Males with Paraphilias and Paraphilia-Related
Disorders, 26 Archives SexualBehav. 505, 518-19 (1997).]
[130 Lussier, supra note 101,
at 1446.]
[131 Id. at 1448-49. The
behaviors tend to co-occur. Id. at
1446.]
[132 Even in the most careful studies these hypotheses are not always
evaluated individually. See, E.g.,
Lussier et al., supra note 101, at
1445 (referring to “inability to control sexual behavior” and also “strength
and frequency of the sexual drive”), 1447 (noting that the sexualization
concept includes paraphilia), 1456 (noting that sexualization is related to
sexual aggression in adulthood). “Failure to control” would be preferable to “inability
to control,” with its unproven deterministic connotation.]
[133 See generally Lalumiere et al., supra note 2, at 132-34.]
[134 E.g., Kafka, supra note 129, at 508, 514 (noting that
sample included males seeking treatment for diverse paraphilias; only five
rapists included). Concerning the differences between “sex offenders” with
sexually mature victims and those with younger victims, see Lussier et al., supra note 101, at 1452. The model used
in Lussier’s study, employing sexualization as one of three factors in sexual
offending, “appeared to exhibit a better fit for sexual aggressors of children
compared to aggressors of adults.” Id.
In many respects, the attributes of child molesters differ from those of
rapists with older victims. See generally Lalumiere et al., supra note 2, at 79-80.]
[135 Aggressive and antisocial behavior and poor psychosocial
adjustment in both boys and girls are associated with early sexual intercourse.
Lalumiere et al., supra note 2, at
70, 72.
Sexualization has usually been studied separately from other possible
causes of rape. Departing from this practice, the authors of one study
concluded that impersonal sex is in part a manifestation of “a high sex drive”
but also partly a manifestation of “a high antisocial tendency.” Lussier et
al., supra note 101, at 1457. An
earlier study had shown that, while measures of sexualization tend to be
related to sexual crimes in adulthood, this role is modest after controlling
for behavioral antecedents of “externalization.” Patrick Lussier et al., Criminal
Propensity, Deviant Sexual Interests and Criminal Activity of Sexual Aggressors
Against Women: A Comparison of Explanatory Models, 43 CRIMINOLOGY 249 (2005). Externalization
refers to four types of behavioral manifestations that tend to co-occur: authority-conflict
behaviors such as being defiant at home, work or school; risky behaviors jeopardizing
one’s own or another’s health; sneaky, dishonest behaviors; and aggressive, violent
behaviors. “[T]hese domains of deviance share significant variance but demonstrate
unique variance as well.” Lussier et al., supra
note 101, at 1443.
For a skeptical response to the “sex drive” theory, see Neil Malamuth,
An Evolutionary Based Model Integrating Research on the Characteristics of
Sexually Coercive Men, in 1 Advances in Psychological Science: Social, Personal
& Cultural Aspects 151, 167 (John G. Adair, David Belanger & Kenneth L.
Dion, eds., 1996) [hereinafter An Evolutionary Based Model] (“[T]he data
appears more consistent with a short-term mating strategy or an impersonal
sexual orientation (E.g., desiring
more variety of sex partners) rather than differences in sex drive.”). Malamuth
and his co-authors have found that sexual promiscuity in combination with “hostile
masculinity” (though not alone) is predictive of sexual aggression. Vega &
Malamuth, supra note 101, at 108,
115; Neil M. Malamuth et al., Characteristics of Aggressors Against Women:
Testing a Model Using a National Sample of College Students, 59 J. Consulting
& Clinical Psychol. 671, 680 (1991). Cf. Catherine So-Kum Tang, Joseph W.
Critelli & James F. Porter, Motives in Sexual Aggression: The Chinese
Context, 8 J. Interpersonal Violence 435, 439 (1993) (finding that among Chinese
college males, “aggressive drive” but not “sex drive” correlated with sexual aggression).]
[136 Sexual promiscuity is one of the behaviors associated with male
anti-social behavior. Lalumiere et al., supra
note 2, at 69-72. Although evolutionary psychologists have plausibly argued
that male promiscuity has an evolutionary basis, see infra notes 337-345, that
thesis is independent of the idea that rapists have a higher level of physical
desire than non-rapists.]
[137 To the extent that highly promiscuous men’s
consensual encounters are with women who appear to hope, perhaps with encouragement
(and even dishonesty) by the man, that the relationship will evolve into
something more enduring, traits such as dishonesty, self centeredness, and lack
of empathy presumably facilitate such men’s sexual lifestyles. Several studies
have found that empathetic men, even if they possess other risk factors for
rape, are unlikely to commit the crime. Lalumiere et al., supra note 2, at 73; Karol E. Dean & Neil M. Malamuth,
Characteristics of Men Who Aggress Sexually and of Men Who Imagine Aggressing:
Risk and Moderating Variables, 72 J. Personality & Soc. Psychol. 449,
453-54 (1997) (describing the relationship between self-centeredness and
aggressive behavior). This does not disconfirm the high sex-drive hypothesis,
but it shows that no explanation of rape’s causes or rapists’ goals should be
treated as exclusive, and it suggests the possibility that some of the
indicators of socio-sexuality (notably promiscuity) may be due at least in part
to factors other than an abnormally frequent or intense desire for sex.]
[138 A socio-sexual orientation has been found to be
“linked with higher levels of rape myth acceptance and adversarial sexual
beliefs; more conservative attitudes toward women; higher levels of power
motivation and lower levels of affiliation-intimacy motivation and past use of
sexual aggression.” Yost & Zurbriggen, supra
note 2 (sample included only five rapists). Again, these findings do not
disconfirm the elevated sex drive hypothesis, but they illustrate alternative
causal possibilities.]
[139 Eugene J. Kanin, Sexually Aggressive College
Males, 12 J. C. Student Personnel 107, 109 (1971); Rada, supra note 10, at 39.]
[140 Malamuth, An Evolutionary Based Model, supra note 135, at 172. Others claim
that women have left them with deeply hurt feelings. Kanin, supra note 26, at 225- 26. This too is
obviously subject to multiple interpretations including an effort to absolve
themselves of guilt, sexist expectations of women, the kinds of women they
associate with, and their feelings about relationships in general. [141 Cf.
Lana E. Stermac & Vernon L. Quinsey, Social Competence Among Rapists, 8
Behav. Assessment 171, 184 (1986) (suggesting “that rapists’ interpersonal
functioning may be affected by a complex interaction of several variables, specifically
anxiety and assertiveness”).]
[142 Id. at
183.]
[143 Rada, supra
note 10, at 39 (incarcerated men); accord D.J. West, C. Roy & Florence L.
Nichols, Understanding Sexual Attacks: A Study Based Upon a Group of Rapists
Undergoing Psychotherapy 144 (1978) (finding no difference between rapists and
nonsexual offenders or non-offenders in measures of anger or annoyance). Twelve
rapists “all complained of serious dissatisfaction with their sex lives, on the
emotional plane if not in physical performance.” Id. at 81. However, they were also “chronically maladjusted” in a
more general way, and with no control group of non-rapists it is unclear what
inferences to draw. Id. Moreover,
this sample of incarcerated men was highly unrepresentative of rapists in general.
Id. at xiii, xiv, 1.]
[144 Kanin, supra
note 139, at 107, 109; accord Eugene J. Kanin, An Examination of Sexual
Aggression as a Response to Sexual Frustration, 29 J. Marriage & Fam. 428,
428 (1967). “A prior study of the same population of males found that
subjective estimates of the number of orgasms per week that would bring sexual
satisfaction was indeed significantly higher for the aggressive group.” Kanin, supra, at 431. Noting “the differential
sexual orientations observed in cross-cultural and social class
investigations,” Kanin rejected the possibility of a biological explanation of
his findings. Id. Another study found
no difference in sexual frustration between aggressors and non-aggressors.
Lisak & Roth, supra note 110, at
797-98, 800-01]
[145 E.g.,
Cohen et al., supra note 12, at 120;
cf Lisak & Roth, supra note 110,
at 800 (finding that rapists and non-incarcerated, sexually aggressive men are
more likely than non sexually aggressive men to have felt “deceived, betrayed,
and manipulated” by women). Other scholars have concluded that the most savage
type of rapist has a long history of difficulty in heterosexual object
relations in conjunction with an active sexual life .... marked by episodic
mutual irritation, and, at times, violence. They tend to experience women
negatively as hostile, demanding, ungiving, and unfaithful,” and they select
women who in fact possess such attributes, though the women can be described
less pejoratively as “assertive, active, and independent.... Cohen et al., supra note 12, at 120. These women often
have children or are pregnant by other men—likely sources of friction. Id. at 121. Cf. Zurbriggen, supra note 2, at 561 (reporting that men
with a “power motive”—defined as inclined to behavior that has an impact on
others or the world- -tend to have unsatisfactory intimate relationships).]
[146 See Malamuth, An Evolutionary Based Model, supra note 135, at 165, 172. There is
some evidence contrary to the hypothesis in our text, however. A study of
incarcerated rapists’ emotions during the twenty-four-hour period before the
rape found that only 8.3% had experienced “sexual frustration.” The most common
emotional states were “neutral” (36.7%), “anger” (33.3%), “alienation” (26.7%),
or “positive” (happiness, joy, or excitement) (25.0%). Brown & Forth, supra note 105, at 852-53. The authors
concluded that their subjects were “motivated more often by opportunity than by
nonsadistic-sexual factors.” Id. at
854. However, opportunity is not a goal, and the emotional states in this study
are all consistent with an ordinary level of sexual desire; it is unclear that
the subjects equated sexual “frustration” with sexual desire. Depending on how
the subjects interpreted “frustration” and “neutral,” the “sexual factors”
dismissed by these authors may not have included an ordinary level of sexual
desire. By our definition, a rapist who feels such desire and seizes an
opportunity to satisfy it by force has a sexual motive. See also John Briere
& Neil M. Malamuth, Self-Reported Likelihood of Sexually Aggressive
Behavior: Attitudinal Versus Sexual Explanations, 17 J. Res. Personality 315,
319-321 (1983). This study found that male psychology students who admitted
that they would rape if they could get away with it did not differ from the
ones who did not on several measures of sexual attitudes, relationships, and
satisfaction. The authors concluded that “[tjhese data support the view of BROWNMILLER
(1975) and others, who relate rape primarily to aggressive rather than sexual
motives.” Id. at 321. Assuming
arguendo that these findings also apply to actual rapists, why can’t rapists
have sexuai desire and a sexual goal without a sexual abnormality (such as a
higher level of sexual dissatisfaction than non-rapists have)?]
[147 One frequently cited study concluded that the
findings concerning “sexual variables” and sexist ideologies of men with high
and low rape proclivities supported BROWNMILLER and undercut a sexual
interpretation of the causes (they do not here say motives) of rape. Neil M.
Malamuth, James V.P. Check & John Briere, Sexual Arousal in Response to
Aggression: Ideological, Aggressive, and Sexual Correlates, 50 J. Personality
Soc. Psychol. 330, 338 (1986). We believe it would be preferable to say that
the findings indicated that certain sexual abnormalities are not characteristic
of rapists, a finding that does not provide much support for BROWNMILLER’s
nonsexual theories about rapists’ motives.]
[148 E.g.,
Lynn Hecht Schafran, Why Empirical Data Must Inform Practice, in Violence
Against Women: Law and Litigation Ch. 1, § 1:28, p. 1-32 (David Frazee, Ann M.
Noel & Andrea Brenneke eds. 1998).]
[149 One authority found that about sixty percent of
the (incarcerated) rapists in his study were married at the time of their
offense. Ron Langevin, Sexual Strands: Understanding and Treating Sexual
Anomalies in Men 393 (1983). This tells us little about their motives. The
patrons of prostitutes and adult entertainment are often married. Symons, supra note 118, at 280.]
[150 After interviewing 5,300 American men, Kinsey et
al. decided that adultery is due to the man’s desire for a variety of partners,
“without respect to the satisfactory or unsatisfactory nature of the sexual
relations at home” or the availability of other outlets. Alfred C. Kinsey,
Wardell B. Pomeroy & Clyde E. Martin, Sexual Behavior in the Human Male 590
(1948). Even if a rapist is a highly skillful seducer, which of course is not
true of all men who have a current relationship, he may be unwilling to postpone
sex until his next consensual intercourse.]
[151 Most of the voluminous social-scientific
evidence about rapists’ lives, opinions, and characteristics is, we submit,
better characterized as suggesting reasons why they were willing to use force
to obtain their goal than as indicative of their goals. This is obviously true,
for example, of their lack of empathy and frequent intoxication, but also, we
think, of their backward opinions about women, sex roles, and rape. For
summaries of these characteristics, see generally Drieschner & Lange, supra note 101; Lussier et. al, supra note 101; Vega & Malamuth, supra note 101. To the list of
disinhibitory factors, one should add any expectation of public and official
leniency. See generally Bryden & Lengnick, supra note 52.]
[152 E.g., BROWNMILLER,
supra note 70, at 82, 137. Of
imprisoned rapists with lone victims, 15.2% reported that the victim was age
twelve or younger. Bureau of Justice Statistics, U.S. Dep’t of Justice, Sex
Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault 24 tbl.3
(1997). Apart from pedophiles, this probably reflects the greater vulnerability
of children and the public’s extreme abhorrence of sexual contacts between
adults and very young children, not the proportion of forcible rapists who are
indifferent to their victims’ sexual attractiveness. Even when a preference for
young children exists, it seems more consistent with a warped sexual motive
than with a desire to hurt or subjugate adult women.]
[153 Childlike features have been found to be
attractive to both sexes except “where they conflict with the gender-identified
ones like a large jaw for men or prominent cheekbones for women.” Deirdre
Barrett, Supernormal Stimuli: How Primal Urges Overran Their Evolutionary
Purpose 37 (2010). See generally id. at 35-38.]
[154 Bureau of Justice Statistics, Dep’t of Justice,
Criminal Victimization in the United States, 1995, at 11 tbl.4 (2000) (finding
a peak between the ages of sixteen and eighteen). See generally Lalumiere et
al., supra note 2, at 144.]
[155 See id.]
[156 Especially in the younger age group, single
women are much more likely to be raped than are married women. See generally
Lalumiere et al., supra note 2, at
144. To minimize such variables, Felson and Krohn compared the ages of female
victims in robberies that included a rape with the ages of female victims of
simple robberies. They found that “the mean age of female victims of
robbery/rape (27.9) was significantly lower than the mean age of female victims
of robbery (35.0). . .and that therefore robbers are more likely to rape their
victims if they are young. Richard B. Felson & Marvin Krohn, Motives for
Rape, 27 J. Res. Crime & Delinq. 222, 232 & tbl.2 (1990).]
[157 One study found that of seventy-three convicted,
unusually violent rapists, 46.6% said that they had selected their victim
“because they saw her as sexy (for example, she may have been dressed in
clothes they found sexually arousing”); 42.5% said that they picked the victim
“because they found her physical appearance attractive”; 82.2% because she was
“available”; and 71.2% because she was defenseless. (Obviously, the rapists
were allowed to give more than one reason.) Queen’s Bench Found., The Rapist
and His Crime, in CRIME in Society 767, 770, 774-75 (Leonard D. Savitz &
Norman Johnston eds., 1978). Some avoided “heavily built” women. Id. at 782. These were men who had used
more violence or threat of force than necessary to accomplish the rape. Id. at 767-68. Yet even these
exceptionally violent rapists, while selecting primarily on the bases of
availability and vulnerability, often claimed that they gave some weight to the
victim’s appearance.]
[158 BROWNMILLER, supra
note 70, at 35.]
[159 Thus, during World War I, “[w]hen the Germans
ruined a village near Ham, they carried away some fifty-four girls and women
between the ages of fourteen and forty.” Id.
at 45 (quoting Newell Dwight Hillis, German Atrocities: Their Nature and
Philosophy 54-56 (1918)). “[T]he Nazis made nightly swoops through the ghetto
in search of young Jewish girls . . . Id.
at 52 (emphasis added). “The Germans seized the most beautiful and most healthy
girls . . . .” Id. “In [a Soviet
city] . . . drunken German soldiers assaulted and carried off all the women and
girls between the ages of 16 and 30.” Id.
at 55. “Drunken German soldiers dragged the girls and young women of Lvov into
Kesciuszko Park, where they savagely raped them.” Id. “Under the pretext of finding out Vietcong information [South
Vietnamese interrogators] would pick out an attractive young girl in a village,...
take her to the interrogation center,” and then rape her. Id. at 89 (quoting BROWNMILLER’s interview with Peter Arnett, war
correspondent for the Associated Press). Although BROWNMILLER also notes cases
in which rape victims were elderly, she offers no rebuttal to the obvious
inference that soldier-rapists prefer youthful, sexually attractive victims
when they are equally available. Elsewhere she cites a study finding that the
victims of prison rape “looked young for their years . . . and were noticeably
better looking than their predators.” Id.
at 266. However, she again fails to discuss whether this disconfirms her
nonsexual interpretation of prison rape.]
[160 We have found no accounts of soldiers’ rapes
that reveal whether any of the rapists chose an elderly or very young victim
when a youthful but sexually mature one was immediately available to him, or
raped anyone when he felt no sexual desire.]
[161 For a discussion of this topic, see generally
Lalumiere et al., supra note 2, at
134, 173-74, 194-95. For an early study of castration in Switzerland, see Marie
E. Kopp, Surgical Treatment as Sex Crime Prevention Measure, 28 J. Crim. L.,
Criminology, & Police Sci. 692 (1938).]
[162 E.g.,
Johan Bremer, Asexualization: A Follow-Up Study of 244 Cases 67 (1959)
(reporting that, in two-thirds of castrates studied who were sexually active
before surgery, “all sexual interest, reactivity and activity have essentially
disappeared in the course of the first year after the [castration]”); Reinhard
Wille & Klaus M. Beier, Castration in Germany, 2 Annals of Sex Res. 103,
127 (1989) (“All castrates showed reduced sexual interest and activity, reduced
erotic fantasies, and reduced capability of spontaneous or stimulated
erections.”); Nikolaus Heim & Carolyn J. Hursch, Castration for Sex
Offenders: Treatment or Punishment? A Review and Critique of Recent European
Literature, 8 Archives Sexual Behav. 281, 286 (1979) (summarizing study finding
that 65% of the castrates reported that their libido and potency were gone
quickly after the surgery, 17% said that there was a “considerable fading and
finally the extinction of sexual drive,” and most of the remaining subjects
(18%) could still achieve intercourse). “Only at a castration age over 30 was
there a rapid extinction of sexual drive.” Id.
But see Nikolaus Heim, Sexual Behavior of Castrated Sex Offenders, 10 Archives
Sexual Behav. 11, 17- 18 (1981) (finding that 31 % of castrates studied were
still able to have sex, rapists were more sexually active after castration than
pedophiles and homosexuals, and effects were stronger in older age groups).
Although Heim concludes that therefore castration’s reliability is doubtful,
most researchers believe otherwise. “Experts admit that, while many castrated
men can still engage in sexual intercourse, the ultimate aim of the act of
castration is fulfilled in that offenders have less of an urge to commit such
crimes.” Stacy Russell, Castration of Repeat Sexual Offenders: An International
Comparative Analysis, 19 Hous. J. Int’l L. 425, 454 (1997) (citing John M.W.
Bradford, Organic Treatments for the Male Sexual Offender, 3 Behav. Sci. &
Law 360-65 (1985)).]
[163 E.g.,
Heim & Hursch, supra note 162, at
284-85 (summarizing a study finding that of 1,036 castrated sex offenders, only
2.6% reoffended, compared with 39.1% of 638 non castrates); id. at 288-90
(finding that the recidivism rate for a group of “severely imbecilic,
psychopathic, or even schizophrenic” sex offenders dropped from 76.86% before
castration to 7.44% after castration, while 52% of those who refused castration
recidivated); Georg K. Stiirup, Sex Offenses: The Scandinavian Experience, 25
Law & Contemp. Probs. 361, 374 (1960) (reporting that 147 castrates had a
3.5% recidivism rate for sex offenses and 9.2% for other crimes; rates for 81
non-castrates were 29.6% for sex offenses and 21% for other crimes); Wille
& Beier, supra note 162, at 125
tbl. 12 (finding that ninety-nine castrates had sex offense recidivism rate of
3% and 25% for non-sex offenses; thirty-five non-castrates’ rates were 46% for
sex offenses and 43% for non-sex offenses).]
[164 Thornhill & Palmer, supra note 2, at 165-67 (pointing to “considerable evidence to
suggest that [castration or hormonal treatments] reduce sexual crimes” and
criticizing social scientists’ “adherence to the dogma that rapists are not
sexually motivated”). On the biology of sexual desire, see generally Heckhausen
& Heckhausen, supra note 3, at
268-69. [165 See, E.g., W.L. Marshall
et al., Treatment Outcome with Sex Offenders, 11 CLINICAL Psychol. Rev. 465,
470 (1991) (noting European studies in which “the population of castrated
offenders is not specified in sufficient detail” to support conclusions about
different types of offenders). But see Heim, supra note 162, at 12 (describing thirty-nine sex offenders who
agreed to castration, of whom twelve were rapists, twenty pedophiliacs
(heterosexual, homosexual, and bisexual), six homosexuals, and one sexual
murderer); Wille & Beier, supra,
note 162 (providing data about types of offenders but no separate recidivism
rates).]
[166 See, E.g.,
Kopp, supra note 161, at 700-01
(reporting post-operative sexual recidivism rates without distinguishing among
types of sex offenders, of whom exhibitionists were the most common, followed
by rapists, persons with “perversion of sexual desire,” and offenders
committing crimes against the morals of minors; reporting no data about how
often castrates committed other types of offenses).]
[167 See, E.g.,
Heim, supra note 162, at 16 (finding
that “castrated rapists are sexually active (masturbation and coitus)
significantly more often than castrated homosexuals or castrated
pedophiliacs”). There were only twelve rapists in this study, however. Id. at 12.]
[168 The European statutes typically provided that
castration was elective. Walter J. Meyer III & Collier M. Cole, Physical
and Chemical Castration of Sex Offenders: A Review, 25 J. Offender Rehab. 1, 5
(1997). Since the purpose was to reduce the danger of recidivism sufficiently to
warrant release of the offender, his choice of this option would presumably be
affected by the length of his sentence as well as his willingness to be
desexualized. In the former respect, and probably also in the latter, there no
doubt were significant differences among different types of sex offenders. For
a description of several European countries’ practices, including replacement
of surgical castration by chemical treatments, see Alison G. Carpenter,
Comment, Belgium, Germany, England, Denmark and the United States: The
Implementation of Registration and Castration Laws as Protection Against
Husband Sex Offenders, 16 Dickinson J. Int’l L. 435 (1998).]
[169 One author states that “it has been found that
the operation, through reducing sexual drive, can make offenders feel calmer,
happier and more passive” and “able more easily to suppress violent and
aggressive urges.” Karen Harrison, Comment, The High-Risk Sex Offender Strategy
in England and Wales: Is Chemical Castration an Option? 46 Howard J. Crim.
Just. 16, 18 (2007). But another authority claims that “[n]o general effect of
pacification has been encountered at all, no sedative influence on exaggerated
affections, no harmonization of emotional life, no ‘resocializing’ influence on
asocial or antisocial behaviour beyond the sexual sphere.” Bremer, supra note 162, at 318. A study of
thirty eight rapists, eighteen of whom were castrated, found that none of the
castrates committed another sex offense, but 33% committed a nonsexual crime.
Of the non-castrated rapists, 10% committed another sex crime and only 5% a
nonsexual crime. Heim & Hursch, supra
note 162, at 296 (summarizing the findings in Stiirup, supra note 163). This is intriguing because, contrary to studies of
sex offenders in general (see supra
note 163), it suggests that castrated rapists switch to other crimes. But the
study does not reveal what proportion of the victims were female nor whether
the crimes were violent. In view of these ambiguities and the small size of the
sample, the implications are uncertain.]
[170 Compare Harrison, supra note 169, at 18, with Bremer, supra note 162, at 318.]
[171 Groth surmised that this would occur, but
offered no evidence that it does. Groth, supra
note 30, at 10.]
[172 BROWNMILLER, supra
note 70, at 183.]
[173 BROWNMILLER’s assertion that rape is usually
premeditated was based on Amir’s study of mostly stranger rapists. Id. (citing Amir, supra note 62, at 140-43, 213-14). But even stranger rapes are not
always planned. According to one study, “anger rapes” of strangers are not
premeditated. Groth, supra note 30,
at 15. Nevertheless, in that author’s view they are not primarily sexually
motivated. Id. at 13-25. “Power
rapes,” which he regards as the most common type, may be either planned or
opportunistic, and again are in his view not primarily sexually motivated. Id. at 27 28. Of the seventy-one
self-disclosed college date rapists studied by Kanin, “no one reported to have
planned the rape. They all virtually planned or hoped for a seduction but not
one respondent would agree that rape was considered a premeditated option to
seduction failure.” Kanin, supra note
124, at 98.]
[174 Craig T. Palmer, Twelve Reasons Why Rape Is Not
Sexually Motivated: A Skeptical Examination, 25 J. Sex Res. 512, 516 (1988).]
[175 BROWNMILLER, supra
note 70, at 183 (“Far from being a spontaneous explosion by an individual with
pent-up emotions and uncontrollable lusts, [Amir] discovered the act was
usually planned in advance and elaborately arranged by a single rapist or a
group of buddies.”).]
[176 Until the eternal issue of free will is
resolved, the best evidence of whether a behavior is controllable is whether
many who appear to be similarly situated control it, which is certainly true of
an intense desire to have sex with an unwilling woman.]
[177 Bureau of Justice Statistics, supra note 57, at 4 fig.4 (91.1% of
rapes and other sexual assaults involved only one perpetrator). Of 348
convicted rapists, one study found that in thirty cases (9%) the offense
involved more than one assailant; of these, 80% were pair rapes. Grotil, supra note 30, at 111.]
[178 One scholar described eight rape cases to
illustrate her list of rapists’ various “predominant” motives for rape; four of
them involved more than one offender. Baker, supra note 2, at 570-73.]
[179 Peggy Reeves Sanday, Fraternity Gang Rape: Sex,
Brotherhood, and Privilege on Campus (2d ed. 2007).]
[180 Id. at
6.]
[181 Obviously, there arc questions of typicality, of
whether changes have occurred in the cultures of fraternities, and of whether
the fraternity rapists were rape-prone well before they joined the fraternity.
Empirical studies have yielded mixed findings. See generally Sarah K. Murnen
& Maria H. Kohlman, Athletic Participation, Fraternity Membership, and
Sexual Aggression Among College Men: A Meta-Analytic Review, 57 Sex Roles 145
(2007). “Membership in both male groups was associated to a moderate extent with
attitudes related to sexual aggression, and to a smaller extent with
self-report of sexual aggression.” Id.
at 153. Although the topic is popular, few longitudinal studies have been done.
Id. at 154. But see Eugene J. Kanin,
Reference Groups and Sex Conduct Norm Violations, 8 Soc. Q. 495, 500-01 (1967)
(finding that sexually aggressive fraternity men had been aggressive before
college). Cf. Arrick Jackson et al., Routine Activity Theory and Sexual
Deviance Among Male College Students, 21 J. Fam. Violence 449, 456 (2006)
(finding males with a history of deviance before college were more likely to be
sexually aggressive in college).]
[182 Sanday, supra
note 179, at 40.]
[183 Id. at
42.]
[184 Cf. Kanin, supra
note 26, at 230 (stating that psychoanalytic proponents of the “latent
homosexuality” hypothesis portray sexually aggressive males as passive and
nonaggressive in their usual behavior).]
[185 In her opinion, homoeroticism is obvious in both
fraternity gang rape and some fraternity rituals. SANDAY, supra note 179, at 12, 41, 68-69, 78-80, 82. “[B]y sharing the same
sexual object, the brothers are having sex with each other as well.” Id. at 125. Her theory is that in
typical fraternities the “men must be careful not to act out sexual feelings
for a loved brother lest it compromises [sic] their status as privileged,
heterosexual males, nor can they show loyalty or love for a party woman lest
this weaken the fraternal bond.” Id.
at 64-65. She contrasts the predatory sexism and homophobia of some fraternities
with the respect for women and welcoming attitude toward homosexuals and
bisexuals in an exceptionally progressive fraternity. Id. at 228-29.]
[186 Id. at
30.]
[187 E.g.,
Baker, supra note 2, at 606-07.]
[188 Groth, supra
note 30, at 113-14.]
[189 This is uncontroversial. See, E.g., Scott J. South & Richard B.
Felson, The Racial Patterning of Rape, 69 Soc. Forces 71, 75 (1990).]
[190 Because our topic is motives, we do not discuss
the extensive literature on other aspects of the intersections of race, gender,
and rape such as discriminatory sentencing practices. Because white-on-black
rapes arc less common today than black-on-white rapes, and the epistemological
issues in motivational analyses are basically the same, we have omitted that
topic. See infra note 202. Suffice it to say that we have found no credible
evidence that white rapists’ goals are often racial.]
[191 In his dated but still interesting and relevant
discussion of interracial sex, Calvin C. Hernton, himself an African American
raised in the Old South, observed that in America “[t]he race problem is
inextricably connected with sex.” Calvin C. Hernton, Sex and Racism in America
4 (1965). In an impressionistic but often persuasive manner, he described how
the sexual attitudes of whites and blacks had been warped by racism. He made no
distinction in this regard between consensual sex and rape. He acknowledged
that “rape has many motives,” but concluded that the occasional black rape of a
white woman is “basically racial,” adding that “in every black man who grows up
in the South, there is a rapist, no matter how hidden.” Id. at 67. The last two propositions are obviously ambiguous.
Hernton’s “racial” analyses of young black men’s feelings toward white women
often include or assume sexual desire. See, E.g.,
id. at 2 (noting that the Negro man is “secretly tormented every second of his
wakeful life by the presence of white women in his midst, whom he cannot or had
better not touch”); id. at 60 (noting that the black male feels “castrated” because
“he must act like a eunuch when it comes to white women”); id. at 76 (noting
black acceptance of white myth that white women are “jewel[s]”). It is one
thing to say that white supremacy affected every aspect of blacks’ relationship
with white women, especially in that time, and quite another to deny that they
sought sexual gratification in their intercourse with white women, just as
white men did.]
[192 See, E.g.,
Lynn A. Curtis, Violence, Race, and Culture 78-79 (1975); Hernton, supra note 191.]
[193 These and other possible motives are mentioned
in Hernton, supra note 191, at 65
(curiosity about why white women are so special); id. at 61-62 (moving North
partly in order to encounter white women); id. at 64 (idealization of white
women). Seeking to explain data indicating that black-on-white rape is more
common than white-on-black, some social scientists have adopted similar
theories. E.g., Gary D. LaFree, Male
Power and Female Victimization: Toward a Theory of Interracial Rape, 88 Am. J.
Soc. 311, 324 (1982).]
[194 E.g.,
Curtis, supra note 192, at 69. In the
black ghetto, “great prestige and maturity are attached to intercourse,” which
has “psychological and social import for a dude far above any sense of
biological urgency.” Id. Curtis
observes that for poor black males sex is less constrained than economic
advancement as a means of proving masculinity, id. at 71, but provides no
evidence that a desire for prestige leads black men to have sex when they would
otherwise prefer to do something else.]
[195 E.g.,
id. at 78. In Curtis’s version, this revenge motive is combined with black
men’s “emerging sense of identity and confidence” imparted by the Civil Rights
Movement. Id. In Hernton’s version,
subjugated black men’s hatred of whites is engendered by lack of confidence.
Hernton, supra note 191, at 59.
Hernton often describes this hatred as one of the motives for violating the
taboo against interracial sex. E.g.,
id. at 67. But that motive is said to be mixed with envy, love, fear,
impotence, and desire, along with other emotions. Id.]
[196 Eldridge Cleaver, Soul on Ice 14(1968).]
[197 Id.]
[198 See BROWNMILLER, supra note 70, at 248^49, 251-52; see also Andrew E. Taslitz, Race
and Two Concepts of the Emotions in Date Rape, 15 Wis. Women’s L.J. 3, 40
(2000). After quoting Cleaver, Katharine Baker attributes lynching of black
rapists to white men’s realization “that rape was intended to be used as a
weapon against white men and white women.” Baker, supra note 2, at 608. Certainly any black who raped a white woman
was undermining white supremacy, and that may well be why Southern whites were
so brutally obsessed with the remote danger that blacks would rape white women,
but many effects of behavior are not among the actor’s goals: If an employee
loafs on the job, we usually do not assume that his aim was to reduce his
employer’s profits, even though, from the employer’s point of view, that effect
is the most important aspect.]
[199 E.g.,
Curtis, supra note 192, at 78 (“In
its purest form, this argument sees rape of white women as the penultimate way
for a black man to serve up revenge on his white male oppressor, [who is
terrified by the prospect of black-on-white sex].”).]
[200 South & Felson, supra note 189, at 89-90; see also Robert M. O’Brien, The Interracial
Nature of Violent Crimes: A Reexamination, 92 Am. J. Soc. 817 (1987).]
[201 South & Felson, supra note 189, at 77.]
[202 Id.
South and Felson excluded cases in which the offender was white and the victim
black; “only 20 rapes, after adjusting for missing data, fit this description.”
Id. Gary LaFree had previously
excluded white-on-black rapes for the same reason. LaFree, supra note 193, at 318. South and Felson also excluded cases in
which either the offender or the victim was neither black nor white. South
& Felson, supra note 189, at 77.]
[203 South & Felson, supra note 189, at 78.]
[204 Id. at
83. The number of race-related civil disorders that occurred in 1968-1969, see
id. at 90 n.5, was taken to be a measure of the extent to which a city’s “black
community was politicized at that time”— the “willingness among blacks in a
city to act on their grievances, even though the sources of those grievances
may have been shared by all communities ....” Id. at 78 -79.]
[205 Id. at
81. In measuring economic deprivation, the study relied on census data
concerning the black poverty rate, the black male unemployment rate, and the
ratio of white to black median family incomes. Id. at 78. [206 Id. at
87. The authors concluded that, to the extent that there was a difference, the
robbers were more likely to rape black robbery victims. Id. They conceded, however, that this might be because the black
robbers regarded it as more risky to rape a white woman. Id. at 91 n.13.]
[207 See supra
text accompanying notes 177-188.]
[208 South & Felson, supra note 189, at 83.]
[209 Id. at
83-84.] [210 Id. at 89-90.]
[211 Id. at
83.]
[212 Given that most rapes are by intimates or
acquaintances, progress in race relations may increase the rate of interracial
rape while decreasing the proportion of those rapes in which a racial animus
exists.]
[213 LaFree, supra
note 193, at 325. Although LaFree acknowledged that his finding concerning
violence was contrary to what one would predict on the basis of the revenge
theory, he interpreted some of his other findings as indirectly supportive of
that theory when compared to the alternative hypothesis that black-on-white
rape is due to “increased social interaction between black men and white
women.” LaFree, supra note 193, at
311.]
[214 See Diana Scully, Understanding Sexual Violence:
A Study of Convicted Rapists 148 (1990) (noting also that sexual curiosity was
evident in the interviews with rapists). As always, offenders’ self-analyses of
their motives should be accepted only with caution, but in this case the
self-analyses are consistent with the objective data that we have mentioned and
indeed may understate the role of sexual desire.]
[215 See, E.g.,
Koss&FIarvey,supra note 101, at
42-82.]
[216 Groth, supra
note 30, at 58. Groth noted that some sadistic rapes may be undetected because
they are treated simply as murders. Id.
But detected sadistic rapists, since they often cause death or serious physical
injuries, are presumably overrepresented in samples of incarcerated men, so the
net effect is uncertain.]
[217 Id. at
44-58. This clinical definition of sadism obviously excludes most cruel men who
might more loosely be called “sadistic.” Perhaps rapists’ sadistic tendencies
should be measured on a continuum, rather than distinguishing so sharply
between “sadists” and “non sadists.” But this would necessitate a different
research design and would tend to negate the simple labels favored by most
motivational theorists.]
[218 Bureau of Justice Statistics, supra note 57, at 12.]
[219 Victims reported “self-protective actions” of
some type in 71.7% of rape and sexual assault victimizations; in 19.3% of all
victimizations, they physically resisted or captured the offender. Id. at 5. Since an extraordinarily
violent attack may be a cause of (rather than a response to) the victim’s
physical resistance, it often is difficult after the fact to reconstruct the
direction of the causal arrow. See generally David P. Bryden, Redefining Rape,
3 Buff. Crim. L. Rev. 317, 367-68 (2000) (noting that the most sophisticated
studies indicate that violence causes resistance more than vice-versa). Many
rapes that are “violent” in the sense that the perpetrator brandishes a weapon
or verbally threatens to harm the victim will not involve injuries because she
is too terrified to resist physically, while others in which the perpetrator is
enraged but has no weapon may lead to vicious attacks that provoke physical
resistance and cause injuries.]
[220 For an example of a victim who interpreted a
rapist’s brutality toward her as an effort to instill lasting sexual
submissiveness, see infra text accompanying note 291; cf. State v. Alston, 312
S.E.2d 470, 472 (N.C. 1984) (threat to “fix your face” in retaliation for
sexual refusal).]
[221 This follows from his description of
power-control rapists as using only instrumental force and as being a majority
of their sample. Groth, supra note
30, at 25, 58. Other studies also have found that most rapists do not inflict
severe physical injuries. Analyzing rapes reported to the Toronto police, Clark
and Lewis found that 68% of the police reports did not refer to physical
violence. Clark & Lewis, supra
note 71 at 67. Of those that did, the victim had been rendered unconscious in
1%, badly beaten in 3%, choked in 8%, and punched, slapped, or kicked in 17%. Id. When interpreting such figures, one
should bear in mind that the most violent rapes are probably overrepresented in
samples like this of reported rapes.]
[222 These (and sadists) were the only types
described as using more force than necessary to achieve purely sexual
gratification. Groth, supra note 30,
at 13, 44-49.]
[223 Id. at
58.]
[224 But women usually were involved. Id. at 16.]
[225 Id.]
[226 Id.]
[227 Id.]
[228 Id.]
[229 Id. at
14. Other clinicians also have attributed the most savage (“aggressive-aim”)
rapes to angry men; they believe that the sex in such cases is instrumental to
a desire to “humiliate, dirty, and defile the victim” and like Groth they
describe the anger as “clearly a displacement of intense rage on a substitute
object.” Cohen et al., supra note 12,
at 120. More Freudian than Groth, these authors add that “[t]he source of this
rage is most frequently the mother or her representatives in the present, the
wife or girl friend”; they agree with Groth that the rape victims “are always
complete strangers.” Id. After
describing various traits of such men, including hypermasculinity, these
authors conclude that “castration anxiety” underlies their rapes, another
Freudian concept that Groth avoids. Id.
at 123.]
[230 Many men have had reportedly consensual sex with
their girlfriends or wives despite their anger. J. Gayle Beck & Alan W.
Bozman, Gender Differences in Sexual Desire: The Effects of Anger and Anxiety,
24 Archives Sexual Behav. 595 (1995).]
[231 Cohen et al. describe a class of “aggressive
aim” rapists whose characteristics are in most respects identical to those of
Groth’s anger-revenge rapists, and they agree that in these cases the attack
“is not the expression of a sexual wish but is in the service of the
aggression, serving to humiliate, dirty, and defile the victim.” Cohen et al., supra note 12, at 120. The more obvious
disinhibitor explanation is probably why some typologies of rapists’ motives do
not include anger that leads to displaced revenge. E.g., Guttmacher & Weihofen, supra note 23, at 116-17. Anger is not a motive in the sense of a
goal, but revenge of course is a (not necessarily exclusive) goal.]
[232 Groth, supra
note 30, at 14-15.]
[233 Id. at
13-14.]
[234 Id. at
14.]
[235 Groth concedes this. Id. at 58. In their study of college “sexual aggressors,” Lisak and
Roth found evidence of “anger” but did not discuss “revenge,” did not mention
whether any of the college men had inflicted the severe physical injuries that
Groth described as typical in rapes by the enraged incarcerated men in his
sample, found it difficult to separate anger motives from power motives, and
found that only one type of anger motivation successfully discriminated between
aggressors and non-aggressors. Lisak and Roth, supra note 110, at 798-800.]
[236 Kanin, supra
note 124, at 100. Eighteen percent “quickly responded to coital rejection with
high level anger responses”; about thirty-one percent later “developed ... a
resentment and low level anger response to their having been ‘led on’ or to
their belief that the rejection was not genuine.” The rest described their
reactions as bewilderment, anxiety, and confusion. Id.]
[237 Volunteers from an elective college course were
hardly an ideal sample of American rapists; they may not have been typical even
of college rapists. [238 E.g., Juliet
L. Darke, Sexual Aggression: Achieving Power through Humiliation, in Handbook
of Sexual Assault: Issues, Theories, and Treatment of the Offender 55 (W.L.
Marshall, D.R. Laws & H.E. Barbaree eds. 1990). [239 E.g., Clark & Lewis, supra
note 71, at 102-04; Russell, supra
note 66, at 110. [240 Briere & Malamuth, supra note 146, at 315; Margaret Hamilton & Jack Yee, Rape
Knowledge and Propensity to Rape, 24 J. Res. Personality 111, 111 (1990).]
[241 A. Eccles, W. L. Marshall & H.E. Barbaree,
Differentiating Rapists and Non Offenders Using the Rape Index, 32 Behav. Res.
& Therapy 539, 544 (1994). In studies measuring men’s physical arousal to
pornography, the subjects’ rape proclivity is determined by a rape conviction
or responses to questionnaires. The pornography depicts consensual sex, a rape
in which the victim eventually became sexually aroused, or a rape in which she
continually abhors the experience. Unfortunately, the rape scenarios vary in
degrees of violence; in addition, it is often impossible for a reader to
determine whether the rape scenario depicted continual rather than merely
initial abhorrence. Although legally and morally irrelevant, this is relevant
to motivational inferences. Some studies find that the men with high rape
proclivity prefer rape scenes to consensual ones; others find that they prefer
consensual scenarios or like both types equally well, being neither attracted
to nor inhibited by the use of force. E.g.,
D.J. Baxter et al., Sexual Responses to Consenting and Forced Sex in a Large
Sample of Rapists and Nonrapists, 24 Behav. Res. & Therapy 513, 516-17
(1986) (both rapists and non-rapists were more aroused by scenes of consensual
sex than by violent rape scenes); Jeffrey A. Bernat et al., Sexually Aggressive
and Nonaggressive Men: Sexual Arousal and Judgments in Response to Acquaintance
Rape and Consensual Analogues, 108 J. Abnormal Psychol. 662 (1999). One study
found that even men with a low likelihood of raping are as aroused by rape
scenes in which the victim becomes aroused as they are by consensual scenes.
Men with a higher likelihood of raping were more aroused by the latter. Neil M.
Malamuth & James V. P. Check, Sexual Arousal to Rape Depictions: Individual
Differences, 92 J. Abnormal Psychol. 55, 58 (1983); cf. Marnie E. Rice et al.,
Empathy for the Victim and Sexual Arousal Among Rapists and Nonrapists, 9 J.
Interpersonal Violence 435, 435-39, 442 (1994) (using a very small sample,
rapists found to be more aroused by rape enjoyed by victim than by consensual
sex or continuously abhorred rape). Sexual arousal from forcible scenes has
been found to correlate with a belief that women enjoy force. Malamuth et al., supra note 147, at 337. For additional
references and analyses, see generally Lalumiere et al., supra note 2, at 108-10, 112-17, 121, 123.]
[242 Martin L. Lalumiere et al., Are Rapists
Differentially Aroused by Coercive Sex in Phallometric Assessments?, 989 Annals
N.Y. Acad. Sci. 211, 217 (2003); cf. Malamuth, supra note 135, at 49 (“The limited research available at this
point does suggest that sexual aggressors hold attitudes more accepting of the
use of sexual and of nonsexual physical aggression, generally, but not
particularly of sexual aggression or other acts of violence against women
....”).]
[243 Alfred B. Heilbrun, Jr. & Maura P. Loftus,
The Role of Sadism and Peer Pressure in the Sexual Aggression of Male College
Students, 22 J. Sex Res. 320, 326-28 (1986).]
[244 Linda Lytle Holmstrom & Ann Wolbert Burgess,
Sexual Behavior of Assailants During Reported Rapes, 9 Archives of Sexual
Behav. 427, 431 tbl.l (1980). Most of the other sexual acts found to have
occurred, while they may have felt extremely humiliating to the victim, may
well have been sexually motivated—for instance, requiring her to dance nude
(1%). Id. But sadistic motives appear
in some cases, such as inserting an object into the victim’s vagina (1%),
urinating on the victim or her underwear (4%), and biting or burning her breast
(percentage uncertain because combined with touching or pulling her breast,
which are not necessarily sadistic). Id.
Among reported rapes in Toronto in 1970, 76.7% involved no sexual acts other
than vaginal penetration; in almost half of the cases in which another act occurred,
it was fellatio. Clark & Lewis, supra
note 71, at 69.]
[245 However, Holmstrom and Burgess’ statistics do
not include beating, knifing, and other nonsexual behavior during the rape that
may in some cases have been motivated by sadism, rather than anger or a desire
to quell resistance. See Holmstrom & Burgess, supra note 244, at 431 tbl.1.]
[246 For single assailants (N = 78) the rates were:
vaginal intercourse 94% (100% for multiple assailants); fellatio 17% (MA: 35%);
breasts pulled, bitten, touched, or burned 9% (MA: 18%); anal intercourse 4%
(MA: 9%); urinating on victim or on her underwear 3% (MA: 6%); semen placed on
victim’s body 0% (MA: 6%). Id.]
[247 We grant that there are some for whom force
seems essential to their pleasure. Cohen, supra
note 12, at 133; Rada, supra note 10,
at 25. The issue is typicality. It has been argued that the victim’s terror
demonstrates that the rapist’s motive is not sexual. Cheryl Brown Travis,
Theory and Data on Rape, in Evolution, Gender, and Rape, supra note 105, at 209, 211 12. But a criminal’s indifference to
the suffering of his victim and her relatives does not suffice to show that he
committed the crime in order to inflict that suffering—consider, for example, a
swindler who obtains an elderly couple’s savings or an armed addict who
terrifies a pharmacist from whom he seeks drugs. Such criminals may sometimes
have ulterior motives, but their victims’ suffering is very weak evidence of
that.]
[248 Clark & Lewis, supra note 71, at 137: “The root of misogyny . . . lies in men’s
resentment at having to bargain with women for sexual gratification.” This was
a remarkably unorthodox statement, but other feminists’ condemnations of
rapists’ sense of “sexual entitlement” may be elliptical references to the same
phenomenon, despite the implication that rapists feel sexually empowered rather
than disempowered. Common experience furnishes many examples of people of both
sexes who compensate for lack of one type of power by resorting to another
type.]
[249 See, E.g.,
BROWNMILLER, supra note 70, at 22,
88-89,180-81 \ supra notes 13-17, and
accompanying text.]
[250 For contrasting but not contradictory
definitions of masculinity, see Susan BROWNMILLER, Femininity 16 (1984); Harvey
C. Mansfield, Manliness ix-x, xii, 58, 60, 70, 76, 78 (2006).]
[251 See generally, Lalumiere et al., supra note 2, at 71 (noting that
hypermasculinity and machismo are associated with both sexual and nonsexual
misbehaviors); Sarah K. Murnen et al., If “Boys Will Be Boys, “ Then Girls Will
Be Victims? A Meta-Analytic Review of the Research That Relates Masculine
Ideology to Sexual Aggression, 46 Sex Roles 359 (2002). Some of the traits and
attitudes are general; some involve backward or negative attitudes about women,
sex roles, or rape. See generally Vega & Malamuth, supra note 101. However, the correlations with rape proclivity may
not always be causal in nature.]
[252 Dean & Malamuth, supra note 137.]
[253 Studies have found that men who were in other
respects “high risk” for sexual aggression were unlikely to aggress if they
were “sensitive to others’ feelings” (empathetic) rather than self-centered. Id. at 453-54; Abbey et al., supra note 2, at 60-61.]
[254 Malamuth, An Evolutionary Based Model, supra note 135, at 165.]
[255 W. L. Marshall, H. E. Barbaree & Yolanda
Maria Fernandez, Some Aspects of Social Competence in Sexual Offenders, 7
Sexual Abuse: A Journal of Research and Treatment 113, 125 (1995). This is not
inconsistent with Malamuth’s finding that evidence of “hostile masculinity” is
less predictive of aggression toward males than of rape. Malamuth, An
Evolutionary Based Model, supra note
135, at 171.]
[256 Vega & Malamuth, supra note 101, at 105.]
[257 Id. at
107.]
[258 Mike Tyson, formerly the heavyweight boxing
champion of the world, was convicted of raping an acquaintance. Tyson v. State,
619 N.E.2d 276 (Ind. Ct. App. 1993). How can we know whether he was trying to
prove his masculinity or was just too “masculine?” Are men who never rape or
use prostitutes trying to prove their masculinity (to themselves) by showing
self-control and sexual competence? We do not mean to imply that the
proving-masculinity hypothesis never can be valid in cases like Tyson’s. As
Twain said of Wagner’s music, the theory is “better than it sounds.” One can
imagine a genius, not content to be acclaimed as the world’s greatest
physicist, who strives mightily to prove his brilliance in another context by
winning a game of chess, or even in his usual context by demolishing the
theories of a rival physicist. Our point is simply that the omni-plausible
proving-masculinity hypothesis should not be accepted without a careful
consideration of alternative hypotheses. In most cases, macho attitudes are
probably disinhibitory rather than motivational. See Donald L. Mosher &
Ronald D. Anderson, Macho Personality, Sexual Aggression, and Reactions to
Guided Imagery of Realistic Rape, 20 J. Res. Personality 77, 91 (1986).]
[259 E.g.,
West, Roy & Nichols, supra note
143, at 82. But their sample was highly unrepresentative, no control group was
included, and their case histories describe men who clearly wanted sex, while
the evidence of an additional motive is less clear. See, E.g., id. at 26-30. In the general population, there is no
evidence, and it seems unlikely, that the males who are regarded as “sissies”
by most males are more likely to have raped than the more masculine ones. Black
youths, on average a stereotypically masculine group, are overrepresented among
arrested rapists. Henry Ruth & Kevin R. Reitz, The Challenge of Crime:
Rethinking Our Response 33 fig. 1.6 (2003). Perhaps, however, rapists tend to
be more masculine than most males in their age group but less so than many of
their acquaintances and for that reason more worried about their masculinity
than most men, or even most incarcerated men.]
[260 See E.g.,
supra notes 143-259 and accompanying
text.]
[261 Groth, supra
note 30, at 12.]
[262 See also id. at 60.]
[263 Id. at
13.]
[264 Groth says power was the primary motive in
fifty-five percent of the rapes that he studied but adds that, since most of
the men in his sample were incarcerated, “power” rapists “may very well be”
underrepresented (and “anger” rapists, who characteristically do not plan their
attacks, may be correspondingly overrepresented) in his sample. Id. at 58. The ovcrrepresentation of
enraged rapists in Groth’s sample of incarcerated men must also have been
inflated by their greater violence and the fact that in Groth’s typology they
are strangers to their victims. See supra
notes 221, 222, 233 (anger rapists are typically very violent), 235 (they are
strangers to their victims).]
[265 See Groth, supra
note 30, at 25.]
[266 Id. A
number of clinicians have either interpreted the “control” motive differently
or failed to discern it. Rada, for example, concluded that rapists often want
control over their victims and to a much lesser extent over men. But he
attributed this to the fact that the “rapist frequently lacks, or feels that he
lacks, the ability to establish a satisfying love relationship with a woman.”
Rada, supra note 10, at 25. Unlike
other men in this situation, he “responds in rage and frustration with a vain
attempt to control by force what he feels inadequate or unable to obtain on a
voluntary basis.” Id. In other words,
he wants to control women by raping them for a “love relationship” instead of
for sex? Some love relationship! Another study of inmates describes several
types of rapists, with no suggestion that any type’s underlying motive was
“power” or “control.” Cohen et al., supra
note 29, at 312-25. “Here the act of rape is clearly motivated by sexual
wishes, and the aggression is primarily in the service of this aim.” Id. at 317. In this sample, the victim
was “always a stranger,” presumably because acquaintance rapes with no weapon
or severe physical injury rarely led to incarceration. Nothing in the authors’
description of these rapists’ backgrounds, traits, and behavior during the rape
suggests a desire for “control” or “power” exccpt insofar as these are
conducive to other goals such as sexual gratification. Guttmacher and
Weihofen’s typology also does not mention power or control rapists; like Cohen,
they include sex as one of the “basic” motivations and even describe sadistic
rapists as sexually motivated, though noting that they often hate women.
Guttmacher & Weihofen, supra note
23, at 116-17.]
[267 See, E.g.,
Groth, supra note 30, at 30 (feels
inadequate, insecure, vulnerable); id. at 32 (father called him a sissy); id.
at 33 (no friends, unhappy); id. at 36 (felt he had nothing to offer a girl,
depressed, dull life); id. at 37 (no friends, unhappy); id. at 36-37 (no
friends of either sex, no confidence); id. at 41 (has never loved anyone).]
[268 Id. at
31. See also id. at 6-7 (low tolerance for stress).]
[269 Given the apparent limitations of his sample,
this is far from clear.]
[270 As Symons notes, “Sex and power are not
antithetic; human motives are complex, intertwined, and often conflicting, and
perhaps no human act results from a single, pure impulse.” Using quotations
from rapists that might be thought to display a “power” motive, he argues
persuasively that this was fused with a sexual motive. Symons, supra note 118, at 282 83. Most of those
who discuss power and related motivations either ignore this fundamental truth
or take it for granted -it is usually difficult to tell which. Consider, for
example, this ambiguous statement: “The male struggle to dominate women who do
not act submissively could lead to acceptance of use of force to dominate women
sexually.” This hypothesis was under a heading titled “The feminist
perspective.” Kathryn B. Anderson et al., Individual Differences and Attitudes
Toward Rape: A Meta-Analytic Review, 23 Personality & Soc. Psychol. Bull.
295, 300 (1997). If the desire to dominate is, in this context, in order to
obtain sex, why is this a “feminist” perspective? Or are the authors speaking
of domination for its own sake?]
[271 See, E.g.,
Groth, supra note 30, at 30 (claims
he raped because he was afraid that the victim would reject any proposition).
An arguable exception is the story about a woman who talked a would-be rapist
into walking her home instead of raping her. Id. at 31. Groth interprets this as evidence that his main desire
was to assert his masculinity; he does not mention the possibility that the man
was overcome by sympathy, guilt, or fear.]
[272 Groth, supra
note 30, at 26; cf. id. at 42 (“I wish there were more aggressive girls
around.”). A more recent study of sexual fantasies treats a fantasy about
lustful desire followed by forcible rape as a “domination” fantasy, defined as
one in which “the self exerted power over another person in the fantasy.”
Eileen L. Zurbriggen & Megan R. Yost, Power, Desire, and Pleasure in Sexual
Fantasies, 41 J. Sex Res. 288, 291, 293-94 (2004) (fantasy about woman swimming
in a bikini). This fantasy seems to have been about sexual desire, and the
domination, consisting solely of the rape itself, appears to have been
instrumental to that desire. The same study found that “[m]en’s fantasies
mentioned a partner’s sexual desire more frequently than did women’s
fantasies.” Id. at 292.]
[273 Groth, supra
note 30, at 26. Similar fantasies of force followed by mutual delight were
described as characteristic of “sexual aim” rapists by Cohen et al., supra note 12, at 127 28.]
[274 That issue has been studied more rigorously by
researchers who have employed phallometric devices, but with somewhat
inconclusive results. See supra notes
241-242 and accompanying text (arousal to various pornographic scenes).]
[275 One rapist said that he had ignored other
women’s protests and found that they enjoyed it. Groth, supra note 30, at 40; cf. id. at 38. The pervasive ambiguities of
these rapists’ comments are illustrated by the same man’s claim that he wanted
his victim to say “no” because that would be more stimulating, but he also
wanted the “no” to be insincere, so that the woman enjoyed the experience and
actively participated. “I would have felt like the dominant person, the one in
charge.” Id. at 41. Others quoted by
Groth seem to have been perfectly happy to let the woman be in charge, so long
as she was eager. Id. at 26, 42.
Another rapist had a fantasy of tying up a woman, who enjoyed it, didn’t
resist, and had an orgasm. Id. at 37.
And still another raped a woman who he said had never turned him down before,
which implies an ordinary sexual motive. Id.
at 39-40.]
[276 Groth, supra
note 30, at 29 (asked whether he was as good as her husband); id. at 30 (“[H]is
desperate need to reassure himself of his virility and sexual competency often
results in his attributing his own wishes to his victim.”); id. at 42 (wanted
sex, tried to set up a post rape meeting). Other scholars have reported similar
delusions in their samples of incarcerated rapists. Gebhard et. al., supra note 119, at 178-79, 183; Cohen et
al., supra note 12, at 133
(“Sex-Aggression Defusion” rapists see the victim’s “struggle and protestation
not as a refusal but as part of her own sexual excitation ... even when the
victim is literally fighting for her life and the offender has to brutally
injure her to force her to submit to intercourse.”). Whether these men rape
because they need reassurance or need reassurance because they rape, or both,
has not been demonstrated. This phenomenon may be rarer, or more common, among
acquaintance rapists. The most grossly deluded men arc probably overrepresented
in samples from prisons; on the other hand, the line between seduction and rape
is often much finer in a dating situation than in the anecdotes about deluded
but clearly forcible strangers that are so often mentioned in the rape
literature. Consequently, the requisite wishful thinking is less extreme and
probably much more common.]
[277 Groth, supra
note 30, at 27.]
[278 That is Groth’s description of all rapes. Id. at 2.]
[279 Id. at
84-93. Craig Palmer regards the evidence of this as inconclusive. Palmer, supra note 174, at 519.]
[280 Groth, supra
note 30, at 26-27 (lost interest when he discovered that victim didn’t enjoy
it); id. at 41 (could have picked up women instead but mistakenly thought he
would enjoy it more by “taking advantage of the situation”); id. at 42 (says he
wanted to have sex but was afraid and did not enjoy it); id. at 84 (not
“sexually gratifying”).] [281 Id. at 28.]
[282 Groth, supra
note 30, at 28; cf. Rada, supra note
10, at 241 (“Rape is a crime of control, power and dominance. The primary
motive in the rapist is the desire to control the victim . . . and, by
extension, all women. In this sense, the aggressive component appears to be
more dominant in rape than the sexual component.”). Rada contends that the man
chooses rape because “sex represents to him the foremost example of personal
control that a woman has.” Id. He
never asks why the rapist cares more about this type of control than her
control over other matters such as the food she eats, her female friends, etc.
And why assume that the rapist “by extension” wants to control “all women”? Or
does this mean “all women with whom he has or seeks a sexual relationship”? In
an obvious reference to Freudian concepts, Rada attributes this desire for
“dominance . . . and control” to “unresolved conflicts originating during the
anal period of development.” Id. at
25.]
[283 See supra
text accompanying notes 119-132.] [284
Groth, supra note 30, at 28. For a
cogent rebuttal, see Palmer, supra
note 174, at 518-19.]
[285 See, E.g.,
Gebhard et al., supra note 119, at
194-95 (in a sample of rapists 72% of whom had been strangers to their victims,
about half had first made sexual overtures).]
[286 Studies of sexual aggression by college men
provide some evidence that acquaintance rapists—the majority—usually begin by
trying to obtain consent. Kanin, supra
note 144, at 107 (seventy-one percent of sample engaged in genital petting
“prior to the aggressive act”); Kanin, supra
note 124, at 99. In the latter study of seventy-one self-disclosed college
rapes, 100% were preceded by some consensual sexual activity, about 84% by
“some sort of genital play” which was “overwhelmingly oro-genital and largely
reciprocal.” We strongly doubt that all of these findings are typical of
acquaintance rapists, but our point is that, whether or not they proposition
their victims, most rapists probably would have been delighted to obtain
consent; no commonly reported behavior suggests otherwise. Apparently, no one
has investigated how often men rape when it appears that they could readily
have obtained immediate consent from their victims; our impression, after
reading countless descriptions of rapes, is that this is almost never true
except perhaps in the case of clinically diagnosable sadists. If we are right,
how can some nonsexual goal be described as exclusive or even “primary” in more
than a relative handful of cases at most?]
[287 Groth, supra
note 30, at 26.]
[288 Thornhill & Palmer, supra note 2, at 61-62.]
[289 Groth, supra
note 30, at 26. Psychologists tell us that a strong desire for control is a
basic human motive. Daniel Gilbert, Stumbling on Happiness 21-22 (2006).
Similarly, Ellis maintains that “two drives . . . underlie most rapes—the sex
drive, and the desire to possess and control.” Lee Ellis, Theories of Rape:
Inquiries into the Causes of Sexual Aggression 57 (1989). But his examples of
the control motivation seem to be instrumental to other ends such as obtaining
food, water, shelter, and sex. See id. at 58.]
[290 Lynda Lytle Holmstrom & Ann Wolbert Burgess,
Sexual Behavior of Assailants During Reported Rapes, 9 Archives of Sexual
Behav. 427, 435 (1980).]
[291 Id.]
[292 R. Lance Shotland, A Theory of the Causes of
Courtship Rape: Part 2, 48 J. Soc. Issues 127, 137 (1992). For a more complete
analysis of the control motive than we have presented, see Felson, supra note 101, at 95-106.]
[293 See, E.g.,
supra text accompanying notes 131
[294 Supra note 110. [295 Id. at 800.]
[296 Id.]
[297 Abbey et al., supra note 2, at 54.]
[298 Broadly defined to include a spectrum of
behaviors ranging from rape to “verbal coercion.” Id. We discuss the concept of verbal coercion in connection with
the next study we examine.]
[299 Determined by anonymous self-reports. Id.]
[300 Id. at
61.]
[301 Originated in 1979 by Paul Nelson, this scale
has been used in several studies. Id.
at 59.]
[302 Id. at
61. As was some of the effect of “alcohol problems.” Id. at 60 tbl. 1.]
[303 Id.
Another major finding was that “[m]en with high levels of empathy committed
relatively low levels of sexual assaults, regardless of their level of sexual
dominance, while those with low levels of empathy committed increasing numbers
of sexual assaults as their level of sexual dominance increased....” Id.]
[304 Id. at
63.]
[305 Neil M. Malamuth & Nancy Wilmsen Thornhill,
Hostile Masculinity, Sexual Aggression, and Gender-Based Domineeringness in
Conversations, 20 Aggressive Behav. 185, 186(1994).]
[306 Cf. Anderson et al., supra note 270, at 308 (noting a decrease in socioeconomic status
found to be associated with increase in acceptance of rape myths).]
[307 Polaschek & Ward, supra note 105, at 390-92.]
[308 Id. at
387.]
[309 Id. at
394-98.]
[310 Joyce S. Pang & Oliver C. Schultheiss,
Assessing Implicit Motives in U.S. College Students: Effects of Picture Type
and Position, Gender and Ethnicity, and Cross-Cultural Comparisons, 85 J.
Personality Assessment 280, 280 (2005).]
[311 Zurbriggen, supra
note 2.]
[312 Id. at
577. Her sample consisted of seventy-nine men and seventy-nine women, all
primarily heterosexual, recruited in Ann Arbor, Michigan. Id. at 563. In the interest of concision, our discussion includes
only the aspects of her study that we thought most relevant to our topic, and
sufficient to make our main points, but her study included women as well as
men, and obtained data about an “affiliation-intimacy motive” as well as
“cognitive power-sex associations.” Id.
at 561-64.]
[313 Id. at
578.]
[314 Id. at
561.]
[315 In other words, what some call
“socio-sexuality.” See supra text
accompanying notes 119-132.]
[316 Zurbriggen, supra
note 2 at 561; Studies also have suggested that this motivation “is detrimental
to intimate, romantic relationships, at least for men.” Id.]
[317 For a more complete description, see id. at
563-64.]
[318 Id.
at 565 tbl.l (reporting that eleven percent of all the male respondents had
done this at least once). The only possibly significant ambiguity that we perceive
is the meaning of to “have sex.” Perhaps some respondents included
nonconsensual but non-penetrative acts.]
[319 Id.
A much higher proportion (31.6%) said that they had done this. Id. But in this proposition there is no
explicit indication that sex of any sort occurred, though that is perhaps
implied, nor whether the degree of cognitive impairment reached the level that would
justify a judgment that the woman was legally incapacitated and therefore
incapable of validly consenting (which is often difficult to judge), nor even
whether she ever regretted the event, which—though not a prerequisite to legal
guilt—is clear in all truthful reports of adult rape and of course strongly
affects most people’s feelings about whether the sex was harmful.]
[320 Id.
We have no general objection, for example, to a threat to terminate a
relationship that the speaker, whether male or female, finds sexually
unsatisfactory, either because the other party refuses sex, or repeatedly
requests sex, or does not perform sex in ways desired by the speaker. If in a
particular case it is morally acceptable to end the relationship for such
reasons, then it should be at least equally so to give the other party advance
notice (a “threat”) that the incompatibility is jeopardizing the relationship.
The word “threat,” though often used pejoratively, denotes a wide spectrum of
common and mostly morally acceptable utterances. If giving someone “the silent
treatment” or telling them that their conduct is “changing the way that you
feci about them” is “coercion,” then coercion by both sexes for various
purposes is both ubiquitous and often justifiable.]
[321 Id.]
[322 Id.]
[323 Id. at
567.]
[324 Id. at
570. For affiliation-intimacy motivation, women scored significantly higher
than men, and women’s level of that motivation was significantly greater than
their level of power motivation. For men, there was no significant difference
between their levels of the two motivations. Id. at 567.]
[325 Id. at
573.]
[326 Id.]
[327 See, E.g.,
supra note 320.]
[328 Scales measuring verbal pressures or inducements
to have sex are versions, sometimes modified, of a survey devised several
decades ago. M.P. Koss & C.J. Oros, Sexual Experiences Survey: A Research
Instrument Investigating Sexual Aggression and Victimization, 50 J. Consulting
& Clinical Psych. 455, 455 (1982). Our objection is not to studying
noncriminal verbal pressures and inducements but to some scholars’ assumption
that they are all both immoral and important and to listing them with rape in a
scale with a misleading pejorative label such as “coercion” or “aggression.”
The confusion caused by this practice can be found even in some of the best
rape scholarship. For example, one excellent book has a chapter titled “Rape
Across Cultures and Time.” Lalumiere et al., supra note 2, at 10. Possibly because legal definitions of rape
vary, and are sometimes indefensibly narrow, this chapter substitutes “sexual
coercion” for “rape,” but the authors then define sexual coercion as “any
physical sexual contact performed without a person’s consent using any coercive
methods (E.g., using a position of
authority or verbal pressure).” Id.
So, telling someone that if she wishes to postpone all sexual relations until
marriage you will stop dating her is a type of “sexual coercion”?]
[329 If he is a total stranger, he may realize that
there is virtually no chance that she will voluntarily consent. On a date, he
may figure that she would reject an explicit proposition but would acquiesce if
he “just did it.” Or he may at some level recognize that genuine consent is
absent (for example, because she is drunk) but believe that he can get away it.
All of these hypotheses are consistent with a sexual goal, although one can
also imagine other possible goals, whose plausibility depends on other
evidence.]
[330 Gebhard et al., supra note 119, at 195. Seventy-two percent of the victims were
strangers to the offender. Id. at
194.]
[331 Id. at
194. There may be somewhat less danger of an honest mistake about one’s
behavior than one’s motives. But perhaps some of the rapists wished to appear,
or to think of themselves as, psychologically normal.]
[332 Cf. James F. Porter, Joseph W. Critelli &
Catherine S.K. Tang, Sexual and Aggressive Motives in Sexually Aggressive
College Males, 21 Archives Sexual Behav. 457 (1992); Karen Rapaport & Barry
R. Burkhart, Personality and Attitudinal Characteristics of Sexually Coercive
College Males, 93 J. Abnormal Psych. 216 (1984). Eugene Kanin compared college
men who had attempted to have forcible sex with a control group who had not. He
found that the forcible men were much more likely to have employed various non
forcible—albeit sometimes immoral—techniques to obtain sex: attempting to get
their companions intoxicated, falsely professing love or promising marriage,
and threatening to stop dating. Kanin, supra
note 139, at 108-09. Depending on the degree of intoxication, the first might
lead to a rape; the second would be immoral but not criminal; and the third in
our view is not immoral—he is entitled to seek a more compatible partner and to
inform her of that possibility, just as she would be if she found the relationship
unsatisfactory.]
[333 See generally Steven Pinker, The Blank Slate:
The Modern Denial of Human Nature (2002).]
[334 See generally Steven Pinker, How the Mind Works
(1997); Symons, supra note 118;
Robert Wright, The Moral Animal: Evolutionary Psychology and Everyday life
(1994); Owen D. Jones, Sex, Culture, and the Biology of Rape, 87 CALIF. L. Rev.
827 (1999). For summaries of studies that relate motivation and behavior to
biological factors, see generally Heckhausen & Heckhausen, supra note 2.]
[335 Pinker, supra
note 334, at 42; Thornhill & Palmer, supra
note 2, at 15; Wright, supra note
334, at 9.] Unfuckingbelievable. [336 See generally Thornhill & Palmer, supra note 2.]
[337 See, E.g.,
Symons, supra note 118, at 207;
Thornhill & Palmer, supra note 2,
at 31-52.]
[338 Malamuth, An Evolutionary Based Model, supra note 135, at 167.]
[339 Thornhill & Palmer, supra note 2, at 37, 39^10. For a reply to the “resources” point,
see Alice H. Eagly & Wendy Wood, The Origins of Sex Differences in Human
Behavior, in Evolution, Gender, and Rape, supra
note 105, at 265.]
[340 Id.
The earliest major efforts to explain rape in evolutionary terms occurred in
the 1970s and 1980s, shortly after the canonical feminist works on rape. Id. at xv.]
[341 Id. at
61.]
[342 Id. at
191.]
[343 Id. at
xi, xiii, 114-15.]
[344 For a collection of feminist responses, see
Travis, ed., supra note 105.
Thornhill and Palmer replied to some of the criticisms. Craig T. Palmer &
Randy Thornhill, Straw Men and Fairy Tales: Evaluating Reactions to A Natural
History of Rape, 40 J. Sex Res. 249 (2003). For a rebuttal of several
fallacious types of arguments against the evolutionary hypotheses, see Jones, supra note 334, at 873-94.]
[345 See, E.g.,
Malamuth, supra note 135; c/T Koss, supra note 105, at 191.]
[346 A meta-analysis of the literature about
psychological differences between the sexes concludes that while the numerous
alleged differences are generally nonexistent or small, there is a “strikingly
large” difference in “attitudes about sex in a casual, uncommitted
relationship.” Janet Shibley Hyde, The Gender Similarities Hypothesis, 60 Am.
Psychologist 581,586 (2005).]
[347 E.g.,
Cheryl Brown Travis, Talking Evolution and Selling Difference, in Evolution,
Gender, and Rape, supra note 105, at
3, 20.]
[348 The danger to a woman from sex with a virtual
stranger includes the possibility that he will be inconsiderate, perhaps
vicious. Balanced against the possibility of momentary pleasure, even the very
slight risk of a murderous assault usually suffices to explain women’s
characteristic sexual reserve toward total and near-total strangers, but
acquaintances are a different matter.]
[349 Symons, supra
note 118, at 170-84 (visual stimuli); Thornhill & Palmer, supra note 2, at 132 33 (prostitution);
Gert Martin Hald & Neil M. Malamuth, Self-Perceived Effects of Pornography
Consumption, 37 Archives Sexual Behav. 614, 615 (2008) (men more attracted to
pornography). Admittedly, patronizing prostitutes is at least sometimes more
dangerous for women, and their dislike of pornography that demeans women does
not signify distaste for sexually explicit materials as such. But much
pornography does not demean women except to the extent that impersonal sex is
thought to be inherently demeaning to them, a proposition that begs the
question of why they feel more demeaned than men do by impersonal but
egalitarian depictions of sex. Some pornographic scenes are disgustingly crude,
to many men as well as to women, but, again, that is not always true, and one
must ask why that reaction is more common among women.]
[350 Symons, supra
note 118, at 73, 200-05, 293-305; cf Frans De Waal, Our Inner Ape: The Best and
Worst of Human Nature 89 (2005) (“Hook up college students to a fake lie
detector machine, and young women report almost twice as many sex partners as
women feeling no such pressure. In fact, they report as many partners as their
male counterparts. So men and women may be far more similar than sex surveys
have made us believe.”). But one’s number of partners is not determined solely
by one’s inclinations; the availability of willing mates is a limiting factor
that reduces heterosexual men’s numbers of partners much more than women’s (or
homosexual young men’s). That is why Symons compares lesbians with gay men, who
generally can find immediately willing amateur partners much more easily than
can heterosexual men. In this comparison, the gay men are on average far more
promiscuous than the lesbians. Symons, supra
note 118, at 198-201.]
[351 Thoroughgoing cultural determinism is at least
implicit in some feminist discussions of rape’s causes. See, E.g., Thornhill & Palmer, supra note 2, at 140-13, 146-47.]
[352 No one mentions this truism; scholars have
focused instead on data about the incidence and prevalence of rape, which are
less obvious and for most purposes more significant. See, E.g., Mary P. Koss, Christine A. Gidycz & Nadine Wisniewski,
The Scope of Rape: Incidence and Prevalence of Sexual Aggression and
Victimization in a National Sample of Higher Education Students, 55 J.
Consulting & Clinical Psychol. 162(1987). Thornhill and Palmer rebut the
idea that some primitive societies have been literally “rape-free,” but not the
much more significant proposition that there are some very large variations in
the rape rate from one culture to another. Thornhill & Palmer, supra note 2, at 140-43.]
[353 For discussions of studies that shed light on
some possible nonmotivational causes of rape, see generally, Lalumiere et AL., supra note 2; Drieschner & Lange, supra note 101; Vega & Malamuth, supra note 101.]
[354 See Thornhill & Palmer, supra note 2, at 4, 55 (arguing that evolution explains why
proximate causes such as culture exist).]
[355 The book discusses six “potential rape
adaptations of men,” Thornhill & Palmer, supra note 2 at 64-78, and also devotes a chapter to an
evolutionary explanation of rape victims’ pain and anguish. Id. at 85-104.]
[356 Id. at
66.]
[357 Id.]
[358 See, E.g.,
Symons, supra note 118, at 284.
Thornhill and Palmer acknowledge these disagreements and concede that the issue
is still open. Thornhill & Palmer, supra
note 2, at 191.]
[359 For a discussion of the difficulties of
distinguishing between “nonconsensual” and “consensual” sex in some species of
animals, see Symons, supra note 118,
at 277-78. But the distinction can sometimes be made. See Lalumiere et al., supra note 2, at 31, 33. See generally
id. at 31-58. Even when it can, the causes of human rape will not be identical
to the causes of sexual coercion in other species because, for example, other
species do not become intoxicated and do not believe “rape myths.” While the
existence of forcible copulation among some non-human species does show that sexual
coercion occurs in some species without cultural encouragement, this fact has
little value in assessing the degree to which variable features of human
culture increase the rape rate.]
[360 Thornhill & Palmer, supra note 2, at 63-64.]
[361 Id.
Even in the animal world, forcible copulation cannot be universally explained
as due to lack of access to mates. LALUMIERE ET AL., supra note 2, at 48-51. This is not to say that another
evolutionary explanation cannot be found; only that the “mate deprivation” hypothesis
requires exceptions or refinements.]
[362 Thornhill & Palmer, supra note 2, at 67.]
[363 Id. at
68-70.]
[364 Id. at
70.]
[365 Id. at
71.]
[366 Id. at
74.]
[367 Id.
Concerning victims’ ages, they note that research should eliminate possible confounding
variables such as differences in vulnerability at various ages. Id.; see also id. at 72 (why some
genetically-motivated rapists might choose victims under twelve); id. at 74
(sperm counts). Thornhill and Palmer believe that raping a pair-bonded partner
may be an unconscious sperm-competition tactic when the victim’s unwillingness
is associated with infidelity, as evidenced by the fact that such rapes are
particularly likely to occur after a breakup in which concern about infidelity
is “directly implicated.” Id. at
77-78. They do not discuss possible alternative explanations such as increased
anger and sexual frustration due to the same relationship problems. Thornhill
and Palmer also broach the possibility that men have an adaptation that promotes
quicker arousal and ejaculation during rape (to reduce the possibility of
detection by allies of the victim). Finally, they assert that the
rape-adaptation hypothesis predicts that gaining physical control over an
unwilling partner is sexually arousing because it facilitates rape. Id. at 75.]
[368 Id. at
66.]
[369 Id.]
[370 Id. at
80-81.]
[371 Many of Thornhill and Palmer’s critics alleged
that their theories were unscientific. See, E.g..
Evolution, Gender, and Rape, supra
note 105, at 182, 184-85, 222-23, 241-2, 248, 272, 383, 389. We see their
point, but if the standard of comparison is previous motivational speculation,
this accusation is grossly unfair. Thornhill and Palmer replied that portions
of the book discussing possible rape-specific adaptations were presented as
hypotheses for which the evidence was, as they had conceded, inconclusive.
Palmer & Thornhill, supra note
344, at 251. This is true of many of their discussions of specific possible
adaptations but not of the overall tenor of the book.]
[372 Lon Fuller & William R. Perdue, The Reliance
Interest in Contract Damages, 46 Yale L.J. 52, 52 (1936) (attributed to
Nietzsche).]
[373 See generally David P. Bryden & Roger C.
Park, “Other Crimes” Evidence in Sex Offense Cases, 78 Minn. L. Rev. 529, 565
(1994). For an outstanding discussion of character evidence in general, see
Roger C. Park, Character at the Crossroads, 49 Hastings L.J. 717(1998).]
[374 Fed. R. Evid. 404(b).]
[375 Bryden & Park, supra note 373, at 561-65.]
[376 Fed. R. Evid. 404(b).]
[377 See generally Bryden & Park, supra note 373, at 534-56. Admittedly,
some reasonable decisions admitting other-crime evidence cannot be justified on
this basis. A leading example of this is courts’ willingness to admit evidence
of a prior crime whose modus operandi was both highly unusual and similar to
that of the charged crime. In such cases, character reasoning is tacitly
allowed, but in well-decided cases the probative value of the evidence is
enhanced by the striking similarity of the crimes. See generally id. at 544 46.
Bryden and Park argue that the defendant’s prior rapes should be more freely
admissible in acquaintance-rape than in stranger-rape cases, though they
acknowledge that this would create a novel exception to the rule against
character reasoning. Id. at
575-83.] [378 Baker, supra note 2, at 569.]
[379 Id. at
606.]
[380 E.g.,
id. at 564-65.]
[381 Id. at
598-624.]
[382 Bryden & Park, supra note 373, at 542.]
[383 See generally Baker, supra note 2, at 565.]
[384 Id. at
566, 599, 603.]
[385 Id. at
606-07.]
[386 Id. at
607. These men rape not “because they want or need.. . [the sex or the woman]
but because . . . [the victim] belongs to a man whom they wish to insult.” Id. That is “why rapes during war time
often take place in public or are committed in front of civilian witnesses, and
it explains why rape and war have gone hand in hand since there has been war.” Id. at 607-08. The same is true, she
says, of many interracial rapes. Id.
at 608. She does not provide evidence that cither of these types of rapists do
not “want or need” sex, nor does she discuss alternative explanations of rapes
in front of witnesses such as the natural tendency of females in conquered
nations to hide in their families’ homes, the possible inconvenience of taking
the victim to a more private location, rapists’ likely assumption that crimes
against enemy civilians will not be punished even if done in front of enemy
civilians and the likelihood that the soldier-rapists want sex but enjoy the
ancillary pleasure of humiliating enemy men.]
[387 Id. at
610. She says that this explains “much” marital rape: The husband rapes in
order to assert “control over a wife who is somehow defying his command.” Id. at 611. One example is when the wife
has annoyed him; another is when she doesn’t want to have sex. Id. Although it is conceivable, we have
found no evidence that husbands rape their wives “primarily” as punishment for
the latter’s annoying spending habits, nagging, or other nonsexual behavior. It
seems more plausible that the annoyance serves as a disinhibitor of a desire
for immediate sex. After quoting some men who say that women have great power
(in context, apparently a reference to their power to determine whether sex
occurs), Baker claims that for these men “rape is different than sex” because
they “would rape to assert control, albeit sexual, over a very specific
subject—their victim.” Id. at 610-11.
But why would a man care whether he has “sexual control” over a woman if not
for sex?]
[388 Id. at
611.]
[389 Id. at
619.]
[390 Id. at
615. She recognizes that soldier-rapists may have mixed motives, but at one
point implies that she does not regard sex as one of them. See id. at 616
n.297. In the My Lai massacre in Vietnam, “The soldiers wanted sex because it
was a good, like any other, that they could take from the enemy.” Id. at 606. This is ambiguous as to
whether they also sought sexual pleasure, but she had previously said that the
commoditization of sex in our culture makes men feel entitled to treat sexual
desire as something to be satisfied, like hunger, whenever it arises. Id. at 603, 604, 606.]
[391 Id. at
598.]
[392 This is sometimes a precursor of rape. West et
al., supra note 143, at 36, 39, 48,
53, 55.]
[393 See, E.g.,
Bryden & Park, supra note 373, at
542^4 (discussing examples of single goal motives).]
[394 The modus operandi exception, though a matter of
degree and sometimes interpreted too broadly, is more objective and so easier
to apply than a motivational criterion. Some courts exclude modus evidence in
consent-defense cases, an irrational rule whose abolition would achieve some of
the results that Baker seeks. See id. at 545—46. 395 This problem is less
disturbing in, for example, a murder case in which there is no eyewitness and
no apparent motive for the defendant to have killed the decedent. Evidence that
the decedent had witnessed another murder by the defendant would be much more
valuable than most prior-crime evidence and would not require character
reasoning, though the jury might misuse it for that purpose. Without the
evidence, a conviction might be impossible to obtain. In a rape case, by
contrast, the victim almost always testifies that the defendant was the
perpetrator. To be sure, there are some cases in which the defendant seems so
attractive that jurors wonder why he “needed to rape.” See CLARK & Lewis, supra note 71, at 143. But a prior rape
usually would not answer that question; in most cases its only value would be
to show either a similar modus operandi or merely that for whatever reason he
does sometimes rape—the latter, at least, is character reasoning. When the
defendant’s attractiveness seems to be a potential obstacle to conviction,
perhaps an expert witness should be allowed to testify that attractive men do
sometimes rape. See Aviva Orenstein, No Bad Men!: A Feminist Analysis of
Character Evidence in Rape Trials, 49 Hastings L.J. 663, 707 (1998) (arguing
for the use of expert witnesses to, for instance, “refute the myth that only
desparate, poor, sex-starved, anti-social deviants commit rape”).]
[396 See generally Lalumiere et al., supra note 2, at 161-69.]
[397 See id. at 166-69; Robert A. Prentky, A 15 Year
Retrospective on Sexual Coercion: Advances and Projects, 989 Annals N.Y. Acad.
Sci. 13, 21-22 (2003).]
[398 E.g.,
Cohen et al., supra note 12, at 124.]
[399 See, E.g.,
Koss, supra note 100, at 106 (noting
that current treatment methods have only “modest impacts at significant cost”);
Shadd Maruna & Ruth E. Mann, A Fundamental Attribution Error? Rethinking
Cognitive Distortions, 11 Legal & CRIMINOLOGICAL Psychol. 155, 166 (2006)
(arguing that the popular technique of insisting that sex criminals take full
responsibility for past crimes is overrated and may even be
counterproductive).]
[400 “In order to make headway in criminology—to
prevent crimes and treat criminals effectively... we must determine the
motivation behind the criminal act.” David Abrahamsen, The Psychology of Crime
185 (1960).] [401 See, E.g., Westen, supra note 34, at 347.]
[402 Feminists usually propose cultural changes
instead. See, E.g., Transforming A
Rape Culture (Emilie Buchwald, Pamela Fletcher & Martha Roth, eds., 1993).
For incarcerated rapists, various treatments have been tried, but no consensus
exists in favor of any of them. Nat’l Res. Council, supra note 108, at 134. For an unusually optimistic review of the
literature, see W.L. Marshall & W.D. Pithers, A Reconsideration of
Treatment Outcome with Sex Offenders, 21 Crim. Just. & Behav. 10 (1994).
These authors believe that treatments of sex offenders can be effective if they
are “comprehensive, cognitive-behaviorally based, and include a
relapse-prevention component.” Id. at
10. For discussion of a nontraditional alternative to criminal sanctions, see
Hopkins & Koss, supra note 63.]
[403 Some scholars have proposed variable treatments
for rapists with different clusters of “implicit theories,” revealed during
interviews, that “underlie rapists’ offense-supportive
beliefs/feelings/motives.” Anthony R. Beech, Tony Ward & Dawn Fisher, The
Identification of Sexual and Violent Motivations in Men Who Assault Women:
Implications for Treatment, 21 J Interpersonal Violence 1635, 1649-51 (2006).
In these authors’ sample of incarcerated rapists, the most common implicit
theory, present in 79% of the forty-one cases, was a “generalized hostility
toward others,” manifested by viewing “other people as being unreliable and
[as] having treated them abusively and unjustly,” which “resulted in entrenched
feelings of resentment and anger and the adoption of retaliatory interpersonal
strategies.” Id. at 1641. Other
implicit theories were “Women as Sex Objects” (51%); “entitlement” (belief that
males are entitled to sex if they want it) (44%); “Male Sex Drive is
Uncontrollable” (15%); and “Women Are Unknowable and/or Women Are Dangerous”
(9%). Id. at 1641-43. Whatever their
value in determining appropriate treatments, see id. at 1649-51, most of these
attitudes are not precisely goals, though they are suggestive of goals and may
have been disinhibitors. One with a generalized hostility may have a
retaliatory goal, but he may simply or also want sex, as the other findings
seem to indicate. That issue need not be resolved in order to try to reduce his
hostility and resentment on the assumption that they have some sort of causal
role.]
[404 See generally Lalumiere et al., supra note 2, at 132-34, 174-75, 177.]
[405 For examples, see Thornhill & Palmer, supra note 2, at 165-67.] [406 Id.]
[407 Lalumiere et al., supra note 2, at 174-75.]
[408 Id. at
174.]
[409 Id.
Testosterone and other anabolic steroids are commonly used by body-builders and
other athletes and “are easily available from the illicit market.” Id.]
[410 See id. at 175.]
[411 For thoughtful discussions of the varying
provisions and general desirability of such laws, compare Frederick M.
Lawrence, Punishing Hate: Bias Crimes Under American Law (1999) (pro) with
James B. Jacobs & Kimberly Potter, Hate Crimes: Criminal Law & Identity
Politics (1998) (con). Some more recent developments are covered in Anna L.
Bessel, Note, Preventing Hate Crimes Without Restricting Constitutionally
Protected Speech: Evaluating the Impact of the Matthew Shepard & James
Byrd, Jr. Hate Crimes Preventon Act on First Amendment Free Speech Rights, 31
Hamline J. Pub. L. & Pol’y 735 (2010). As virtually every American state
has enacted some such law and space does not permit a more extensive
discussion, or analysis is limited to whether the laws should be applied in
rape cases. [412 E.g., Kathryn M.
Carney, Note, Rape: The Paradigmatic Hate Crime, 75 St. John’s L. Rev. 315
(2001).] [413 See id. at 340-41.]
[414 See id. at 340-43.]
[415 See id. at 344-46.]
[416 See id. at 343.]
[417 See id. at 344.]
[418 See id. at 343.]
[419 Because crimes motivated by hatred for the
victim as an individual are not covered by these laws, Lawrence prefers the
term “bias crimes.” Lawrence, supra
note 411, at 9. But of course not all crimes motivated by bias (for example,
pro- or anti-war) are covered; we believe that the popular “hate crime” label
is less misleading.]
[420 Lawrence, supra
note 411, at 3. Lawrence says “[a] bias crime [the term he prefers to “hate
crime”] is a crime committed as an act of prejudice.” Id. at 9. He distinguishes this from most crimes, which are either
instrumental to a desire for some ordinary goal such as obtaining money (E.g., an assault on a bank teller) or
due to animosity toward a specific individual (crimes motivated by a desire for
revenge against him or her as an individual). Id.. Lawrence favors the inclusion of “gender” in hate (or
“bias”)-crime laws. Id. at 14-17. But
concerning rape he says only that legislatures should consider “whether the
crime is primarily one with gender-based motivation.” Id. at 17.]
[421 To at least some degree, this problem is
inherent in motivational inquiries, including those in, for example,
interracial assaults.]
[422 There is as yet insufficient caselaw on rape as
a hate crime to prove our point. [423 Another likely factor is the rapist’s use
of abusive language toward the victim: “bitch,” “filthy whore,” and the like.
But what if he is also abusive toward vulnerable men who refuse to comply with
his various nonsexual demands? What if his criminal record suggests that he has
an antisocial personality and victimizes both sexes?]
[424 See R.A.V. v. City of St. Paul, 505 U.S. 377
(1992). We cannot here do justice to the First Amendment issues that arise in
some hate crime cases such as R.A. V. and that have been thoroughly discussed
elsewhere. See generally Lawrence, supra
note 411, at 80-109.]
[425 Blumstein et al., supra note 81.] [426
Although it is too early to say that this possibility has become a reality in
the context of sentence-enhancement of convicted rapists, appellate opinions
about “animus” in other contexts, and the absence of a cogent rationale for
variable sentences based on rapists’ motives rather than their deeds provide
substantial grounds for pessimism. See J. Rebekka S. Bonner, Note,
Reconceptualizing VAWA’s “Animus”for Rape in States’ Emerging Post VAWA Civil
Rights Legislation, 111 Yale L.J. 1417 (2002). According to one study, many
prosecutors of both sexes find the idea that rapists are motivated by an animus
against women puzzling or unnecessary, though that may be due to its legal
novelty. See generally Beverly A. McPhail & Diana M. DiNitto, Prosecutorial
Perspectives on Gender-Bias Hate Crimes, 11 Violence Against Women 1162
(2005).]
[427 Groth, supra
note 30, at 9.]
[428 Id.]
[429 See notes 238-242 and accompanying text.]
[430 See, E.g.,
Posner, supra note 115, at 381
(arguing that the diversion of scarce law enforcement resources from other
tasks is not warranted by proven effects of pornography).]
[431 For a meta-analysis of the voluminous research
on pornography’s effects, see Neil M. Malamuth, Tamara Addison & Mary Koss,
Pornography and Sexual Aggression: Are There Reliable Effects and Can We
Understand Them?, 11 Ann. Rev. Sex Res. 26 (2000). See generally Lalumiere et
al., supra note 2, at 146-50.]
[432 Thornhill&Palmer, note 2, at 12 13.]
[433 Id. at
4, 12, 153-54.]
[434 Id. at
4-5.]
[435 Id. at
185-86.]
[436 Id. at
159.]
[437 Id. at
154, 176-77.]
[438 E.g.,
David T. Lykken, The Antisocial Personalities (1995). Thornhill and Palmer say
that “[evolutionary theory would be crucial [to research on this question],
since it predicts that the developmental events of interest will occur in
response to specific cues that, in our history as a species, were most reliably
correlated with reduced consensual sex with females.” Thornhill & Palmer, supra note 2, at 154. But they do not
explain why the existing literature about the father’s role is inadequate nor
why evolutionary research is the best way to fill any gaps.]
[439 Thornhill & Palmer, supra note 2, at 174-75.]
[440 Id. at
175 -76, 179-83.]
[441 The relationship between particular forms of
victim imprudence and rape has been analyzed elsewhere. See, E.g., Bryden & Lengnick, supra note 52, at 1328-77. In evaluating
Thornhill and Palmer’s argument, we would exclude female conduct that (1) is
equally dangerous if rapists are not sexually motivated, or that (2) while it
may increase the statistical likelihood of rape, is something that a reasonably
prudent and well-informed woman would not regard as too dangerous. Dating men,
attending coeducational schools, and having premarital intercourse are among
the many examples. With these exclusions, the list of behaviors that teenage
girls might usefully be warned against becomes very short and obvious. In any
case, it seems sufficient to describe the danger without controversial
speculation about its possible evolutionary origin, as parents have done for
ages.]
[442 Bryden & Lengnick, supra note 52, at 1365-66.]
[443 Id. at
1347-51.]
[444 Thornhill & Palmer, supra note 2, at 183. Researchers have found that rape fantasies
are common among women, but that they are not associated with sexual
victimization. Zurbriggen & Yost, supra
note 272, at 289.]
[445 This has in fact been suggested. Lalumiere et
al., supra note 2, at 89. A cultural
theory about token resistance is that in a culture that prizes female sexual
restraint, women sometimes must feign reluctance in order to preserve their
reputations and self-esteem. The debate would then be about whether that
phenomenon is ultimately due to adaptations.]
[446 Thornhill& Palmer, supra note 2, at 154.]
[447 Thornhill and Palmer posit that the best
deterrents of rape would be “environmental conditions that were particularly
severe obstacles to the reproductive success of our ancestors of the same age
and the same sex.” Id. at 164. A long
incarceration, for example, “at least partially removes the offender from the
everyday male-male status pursuits that young men spend so much time
practicing.” Id. at 165. This may
come as a surprise to those who have described rivalries among prison gangs.
Thornhill and Palmer give no examples of improved evaluations of deterrence,
sentencing practices, or prison management based on evolutionary insights.]
[448 Id. at
156.]
[449 “[W]e hypothesize that these male psychological
adaptations are the main obstacles to attempts to reform rape laws.” Id. at 157.]
[450 Id. at
157-58.]
[451 Id. at
158. For a discussion of the force-resistance requirement, see Bryden, supra note 219, at 355-87.]
[452 Although it is a plausible explanation of male
sexual jealousy, that jealousy may not be a reason for any of the objectionable
legal rules in rape cases, which may have been due simply to the mostly
unconscious prejudice of lawmakers in favor of classes to which they belong—in
this case the male sex—coupled with understandable but often excessively severe
concerns about the danger of false accusations and the adequacy of the
prosecution’s proof. See generally Estrich, supra
note 81, at 42-56 (providing criticism of traditional evidentiary rules in rape
cases). It is a familiar truth that when a regulated group dominates the
enforcement process excessive leniency occurs. As in other contexts, prejudices
formed when young can be expected to endure well past the point at which they
no longer serve the individual interests of older lawmakers.]
[453 Thornhill & Palmer, supra note 2, at 159.]
[454 See generally Bryden, supra note 219, at 411-26 (discussing reformers’ unrealistic
expectations); Bryden & Lengnick, supra
note 52, at 1285, 1378, 1381, 1384 (distinguishing between effects of legal
reforms and improvements in public and official attitudes).]
[455 See generally Bryden, supra note 219, at 387-96 (“no means no”), 435-56 (nonforcible
sexual extortion).]
[456 See, E.g.,
Bryden & Lengnick, supra note 52,
at 1283-94, 1377- 84.]
[457 See generally LaFave, supra note 1, at 878-84; Bryden, supra note 219, at 319-20. Complete abolition of all of the
undesirable rules was not universal, however. Michelle J. Anderson, The Legacy
of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary
Instructions on Campus Sexual Assault, 84 B.U. L. Rev. 945, 949-50 (2004).]
[458 See, E.g.,
Bryden & Lengnick, supra note 52,
at 1263 (citing New York sex-crimes prosecutor’s remarks that acquaintance rape
convictions have become easier to obtain). For this reason, we disagree with
those who believe that the feminist-inspired reforms have “failed” because
public attitudes have not changed. E.g.,
Ilene Seidman & Susan Vickers, The Second Wave: An Agenda for the Next
Thirty Years of Rape Law Reform, 38 SUFFOLK U. L. Rev. 467, 468, 470-71,
(2005); see also Stephen Schulhofer, Rape Law Reform Circa June 2002: Has the
Pendulum Swung Too Far?, 989 Ann. N.Y. Acad. Sci. 276, 280-81 (2003)
(recounting appellate cases that reveal that modern juries are convicting
rapists in some cases that formerly would not even have been prosecuted). Our
impression is that feminists have largely achieved their chief instrumental
goal (less leniency toward accused acquaintance rapists), mostly because public
attitudes have changed, rather than because of the apparently minimal
contribution of specific legal reforms in any particular state, though national
publicity about reforms may have contributed to improved public attitudes and
deterrence of potential rapists. The degree of success cannot be measured
accurately by mere conviction rates, which reflect other factors such as the
quality of the evidence and prosecutors’ willingness to try difficult cases. A
decline in the conviction rate might be due to feminists’ success in persuading
overburdened prosecutors to proceed in rape cases even when they fear that -
because of jurors’ biases or the burden of proof—they lack sufficient evidence
to persuade jurors beyond a reasonable doubt; an increase might be due to fewer
prosecutions because of pressure exerted by a heavier caseload.]
[459 See note 455, supra.]
[460 Thornhill & Palmer, supra note 2, at 159-60. For an appraisal of arguments and evidence
on both sides of this issue, see Bryden & Lengnick, supra note 52, at 1295-315.]
[461 See supra
text accompanying notes 427—431 (pornography) and 405 406 (hormonal and
chemical treatment of convicts).]
[462 “Prison rape is generally seen today for what it
is: an acting out of power roles within an all-male authoritarian environment
in which the younger, weaker inmate, usually a first offender, is forced to
play the role that in the outside world is assigned to women.” BROWNMILLER, supra note 70, at 258. A prison rapist
does “need sex,” but only because it is the only way “within the confines of
prison” to “exercise . . . power.” Id.
She approvingly quotes an authority who said that “[h]omosexual rape in prison
could not be primarily motivated by the need for sexual release . . . since
autoerotic masturbation would be ‘much easier and more normal.’ Rather than
sex, “conquest and degradation did appear to be a primary goal.” Id. at 266. But she mentions without
comment that, according to the same authority, “[m]en who were raped in prison
looked young for their years, appeared un athletic and were noticeably better
looking than their predators.” Id. In
other words, they looked more like pretty, young females. The question, then,
is whether this was because the prison rapists wanted a facsimile of sex with a
woman or because such men are easier to dominate for a sexual purpose, or
because domination was the rapists’ main goal. Instead of recognizing this
unresolved empirical question, BROWNMILLER dogmatically rejects proposals to
allow conjugal visits in order to reduce prison rape, on the ground that the
availability of a heterosexual outlet is irrelevant to “the need of some men to
prove their mastery through physical and sexual assault, and to establish, most
strikingly within the special crucible of the male-violent, a coercive
hierarchy of the strong on top of the weak.” Id. at 267.]
[463 See Rachel Wyatt, Note, Male Rape in U.S.
Prisons: Are Conjugal Visits the Answer?, 37 Case W. Res. J. Int’l. L. 579,
598, 601, 603 (evidence that conjugal visits reduce rape), 599-600, 602
(variety of opinions about whether sexual gratification is the explanation)
(2006).]
[464 See, E.g.,
Vega & Malamuth, supra note 101.]
[465 Steven Box, Power, Crime and Mystification
146(1983).]
[466 Cf. Diana Scully & Joseph Marolla, Rape and
Vocabularies of Motive: Alternative Perspectives, in Rape and Sexual Assault: A
Research Handbook 294, 307-08 n.l (Ann Wolbert Burgess, ed., 1985) (“[i]t is
illogical to argue that rape is an extension of normal male sexual behavior
and, at the same time, to deny that sex plays any part in rape.”).]
[467 Nat’l Res. Council, supra note 108, at 66. A similar theory is that, because of
cultural indoctrination, many rapists perceive as merely “sex” what the woman
experiences as rape. Carol Bohmer, Acquaintance Rape and the Law, in
Acquaintance Rape: The Hidden Crime 317, 321 (Andrea Parrot & Laurie
Bechhofer, eds., 1991). If so, these rapists must have a sexual goal.]
[468 E.g.,
Clark & Lewis, supra note 71, at
120.]
[469 Griffin, supra
note 64, at 27.]
[470 Ethel Tobach & Rachel Reed, Understanding
Rape, in Evolution, Gender, and Rape, supra
note 105, at 105, 114. Other scholars believe that prior sexual intimacies
between the rapist and his victim “may increase a man’s belief that he has a
right to such intimacy any time he desires it” and may also lead him to
believe, falsely, that the rape is harmless. Nat’lRes. Council, supra note 108, at 61. This too assumes
a sexual goal.]
[471 Vega & Malamuth, supra note 101, at 105.]
[472 Examples are legion. E.g., Holmstrom & Burgess, supra
note 68, at 262 (“The first and most important task, therefore, is to
delegitimize rape—to make it be seen as unacceptable behavior. This means
changing the social definition of rape. It means seeing rape as an act of
aggression and violence motivated primarily by power or anger, rather than by
sexuality.”); Griffin, supra note 64,
at 27 (myth that men’s sexuality is more urgent than women’s); BROWNMILLER, supra note 70, at 183; cf. Muehlenhard, supra note 106 (discussing which
characterization of rape will best serve women’s interests).]
[473 We are also uncertain to what degree it is still
accurate. Jurors’ sympathy for men accused of acquaintance rape appears to have
declined substantially since the 1970s. See, E.g., Bryden & Lengnick, supra
note 52, at 1263. A public opinion survey indicates that a sea change in
self-reported attitudes toward women occurred between 1972 and 2004. Equal Role
for Women, American National Election Studies, http://www.electionstudies.org/nesguide/toptable/tab4c_l.htm
(last visited Nov. 5, 2010).]
[474 Supra
note 112, and accompanying text.]
[475 See supra
note 112.]
[476 See, E.g.,
Malamuth, An Evolutionary Based Model, supra
note 135, at 584, (opportunism); Wilson & Herrnstein, supra note 4 (sociopathy); Thornhill & Palmer, supra note 2, at 66 (low cost of rape in
some situations); Gwen Hunnicutt, Varieties of Patriarchy and Violence Against
Women: Resurrecting “Patriarchy” as a Theoretical Tool, 15 Violence Against
Women 553, 561 (2009) (economic insecurity).]
[477 Hammer, supra
note 17, at 183. The nebulous most-important-cause connotation existed
centuries before Freud. See Samuel Johnson’s Dictionary of the English Language
478 (1755) (Alexander Chalmers ed., 1994). Johnson defined a motive as “[t]hat
which determines the choice; that which incites the action.” This definition
implies that motives are more influential than non-motivational causes such as
lack of normal inhibitions, unless that lack is itself a type of motive, as it
might be under Johnson’s definition, as might the victim’s vulnerability or the
absence of effective legal sanctions.]
[478 Some distinguished rape scholars sometimes use
“motive” as a misleading label in their taxonomies of rapists. The best example
is Knight and Prentky’s painstaking taxonomy of rapists’ characteristics. They
identified nine types of rapists, each with one of four “primary motivations”:
“opportunistic,” “pervasively angry,” “sexual,” or “vindictive.” Raymond A.
Knight & Robert Prentky, Classifying Sexual Offenders: The Development and
Corroboration ofTaxonomic Models, in Handbook of Sexual Assault: Issues,
Theories, and Treatment of the Offender, supra
note 238, at 23. These labels were not derived from the rapists’ goals. Thus,
“opportunistic” rapists “are seeking immediate sexual gratification.” Id. at 44 (they have “poor impulse
control”). Even the “vindictive” rapists, though they “intend to degrade and
humiliate their victims,” also have “a sexual component in their assaults,” as
do sadists, who are classified as a subtype of sexually motivated rapists. Id. at 44-45. The “sexually motivated”
category was limited to those who had “some form of enduring [and presumably
abnormally strong] sexual preoccupation, however distorted by fusion with
aggression, dominance needs, coercion and felt inadequacies . ...” Id. In other words, most or all of the
rapists had a sexual goal but they differed in other respects indicated by the
taxonomy and in some cases had mixed goals.]
[479 None of this is inconsistent with an
evolutionary understanding of men’s (including rapists’) sexual desire. This is
illustrated by the writings of Neil Malamuth, who has integrated evolutionary
(sexual) factors in an etiological theory that includes rapists’ opinions and
personalities. See Malamuth, supra
note 135; Neil M. Malamuth, The Confluence Model of Sexual Aggression, in Sex,
Power, Conflict: Evolutionary and Feminist Perspectives, supra note 106, at 269.]
[480 Felson, supra
note 101, is the foremost exposition of the view that rape is better understood
as caused by the same factors that produce other crimes of violence rather than
as a product of partriarchy and sexism. We hope to discuss that idea in our
next publication.]
[481 See supra
text accompanying notes 42-44.]
[482 See supra
text accompanying notes 301-305.]
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