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Degrees of Rape

In response to:

The War Between Men and Women from the December 11, 1975 issue

To the Editors:

We were delighted to have our report to the Law Enforcement Assistance Administration on rape victims reviewed in your publication by Diane Johnson. However, I was distressed to find that we were represented as favoring “some sort of rape sentencing by degree, as in murder, with rape by a stranger constituting first-degree rape, and third degree taking cognizance of situations in which the victim may be judged to have shared responsibility for initiating the situation that led to the rape, for instance hitchhiking.” Like other feminist groups, we would definitely not approve of this approach. However, we do believe there should be degrees of rape based on the amount of force used, injury to the victim, and the relative age of the offender and victim when the latter is a minor.

Margaret J. Gates

Co-Director

Center for Women Policy Studies

Washington, DC

Diane Johnson replies:

Dr. Hunt’s thoughtful and helpful letter really requires no reply, but it does suggest a couple of further points. In another letter, also directed to the process by which men identify with rapists, the way they would not with, say, child molesters, Professor Zella Luria points out that “men” includes, of course, lawyers and judges. The role of sex in judicial proceedings has not been examined the way race and age have in determining who are peers, in jury selection, or whether a judge is impartial and disinterested. In San Francisco recently, a woman judge was disqualified from hearing prostitution cases because she was dismissing them, on the grounds that the customers, equally guilty under the statute, were not being pursued and arrested with equal zeal. Her impartiality was attacked, by implication at least, on the grounds of her sex; this in turn suggests an area in which the fairness of male judges might be questioned.

I hardly know what to say to Mrs. MacKellar. I’m sorry she was disappointed not to find more mention of her treatment of group rape, but in the space available, I thought that other, more controversial matters were in greater need of discussion. MacKellar’s view (like Brownmiller’s) is more or less that group rape is a kind of male rite de passage, involves a different type of offender, and should be handled differently. I believe this is generally understood. My essay did deal at some length with sex-role stereotypes, though not in terms of MacKellar’s metaphor, bait and trap, which did not seem to me a particularly helpful one. I’m sorry to have given the impression (in response to her observation that “some of the sexual humiliation inflicted on victims is the result of offenders trying to get what they can’t from their prudish wives or regular sex partners”) that I think that sex is confined to middle-class marrieds, and I suppose I might add that I also know that prudery is not confined to that group.

Disagreement among various groups about what will constitute what degree of rape illustrates the enormous practical difficulty of amending criminal penalties. One may anticipate the objection, for instance to the LEAA idea that amount of force should be a consideration, that this would tend to perpetuate the present situation in which a victim is obliged to demonstrate cuts and bruises to prove that she didn’t accede to the rape.

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