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Illusions of Choice
This might seem totally out of context, but: For the past couple of weeks we've been reading about rape in CrimLaw. I understand it's somewhat unusual for an introductory CrimLaw course to spend so much time on rape, but our prof is doing a great job bringing out the hidden assumptions that underpin our rape laws. So far he's focusing mostly on assumptions about gender and race, but there are plenty of class issues involved, as well. Anyway, we keep reading cases where courts have a hard time deciding whether the sex was consensual, and I keep hearing my classmates say stuff like, "She still had a choice, she should have fought harder, she's responsible for her actions," etc. And all I keep thinking is how often what we call "choice" is but an illusion of choice. Then, while searching for some responses to Katie Roiphe (we're reading "Date Rape's Other Victim," which Roiphe wrote in 1993) I stumbled on this:
'The demand to give up illusions about the existing state of affairs is the demand to give up a state of affairs which needs illusions.' - Karl Marx
It doesn't get much more concise than that. (If anyone can identify the source of this quotation, I'd be, as they say out West, much obliged.)
Part of what Roiphe's arguing for is that we should give up some of our illusions about sex and gender, namely that women are fragile and need protection from the predation of lascivious men. She claims this led to Newsweek calling her "the Clarence Thomas of women," whatever that means. Her arguments carry obvious dangers—they could easily be appropriated by anyone who wants to maintain the status quo which seems to let men off the hook for "behaving badly." See, for example, the story of California's new governor. As a society, we too often seem to give men a free pass to grope and fondle, and I'm convinced too many men go unpunished for doing much worse. Hence the question of when choice becomes mere illusion. It sounds nice to say that women should just stop believing they're fragile and start standing up for themselves instead, but if it were really that simple, the world would be a much simpler place, wouldn't it?
Posted October 8, 2003 06:01 AM | law school
Hey ai,
The quote comes from Introduction to A Contribution to the Critique of Hegel's Philosophy of Right by Karl Marx from Deutsch-Französische Jahrbucher, February, 1844 - http://www.marxists.org/archive/marx/works/1843/critique-hpr/intro.htm
Having just started law school myself I've been following your blog for the last few months with interest and enjoy reading it. Thanks.
Paul.
Posted by: Paul at October 8, 2003 07:30 AM
My Crim Law professor, whom I worked for during my post-1L summer, also used a lot of sex crimes in his classwork (to the point where the end-of-the-year student show mocked him with a skit about a man about a man who has sex with a 14-year-old wheel of cheese that he subjectively believed to be over 18). Substantively speaking, sex crimes raise a lot of "teachable" issues about intent and about evidence, and if taught historically, can illustrate a lot of changes in the law.
Job-wise, it was a lot more interesting that summer to be reading cases about men having sex with dead people than it was for my classmates who were researching Colorado River abstention or the Railroad Reorganization Act.
Posted by: Tom T. at October 8, 2003 10:26 PM
We've also been reading the rape cases in the Kadish book and talking about strict liability. My Crim prof is a pretty incredible woman who teaches an upper division class called Sex and the Law. She told us that in the 70's, feminists fought for rape to be strict liability. Thus, no mens rea necessary.
However, unfortunately, what ended up happening is that all of the things that now under Rape Shield laws are no longer permissable by the defense (i.e. woman's sexual history, promiscuity, what she was wearing, etc) were able to be introduced into evidence and the focus of the rape trial became almost a trial of the woman. Date rape was not even prosecutable under strict liability.
Basically, under strict liability it becomes the subjective belief of the woman and the court ends up only prosecuting when they "KNEW" it is rape (i.e. there is battery, the two parties were strangers).
The crime of rape was defined so restrictively in the end that it required physical evidence for proof. Thus the strict liability offense was abandoned because it was defined in such a hazardous and limited way.
Interesting, I thought.
Posted by: Cinnamon at October 10, 2003 09:08 PM
