A Challenge for a Young Lawyer
One day in the spring of 1990, a new staffer in the offices of the Senate Judiciary Committee, just off the marble halls of the Dirksen Building and a short walk from the marble dome of the Capitol, received a surprise project from her boss, Senator Joseph Biden. He wanted her to figure out what Congress should do to reduce violent crimes against women.
Victoria Nourse, the new staffer, was thirty-one years old and six years out of law school. Except for being the only woman lawyer in her section of the Judiciary Committee, she wondered what in her background prepared her for this job. After law school at the University of California at Berkeley, Nourse had moved to New York to clerk for Edward Weinfeld, a revered trial judge known for working his clerks to exhaustion. Most nights before motions were due, Nourse worked so late she fell asleep in the courthouse. After she had worked on one of his opinions, to check for minor errors Nourse forced herself to re-read the whole opinion backward.
The clerkship led to offers from New York law firms, which tended to trust someone who could cut it with Judge Weinfeld. Nourse accepted an offer from one of the most prestigious, Paul, Weiss, Rifkind & Garrison, because she had heard Paul, Weiss was a firm that, if you worked hard and billed the hours, would promote you whether you were, as she put it, “green or purple.” Except for hard work, Nourse had to admit she didn’t really know much about where a law firm or the law itself would lead her.
Law was not part of her parents’ plan for Victoria. From the time she was young in Marblehead, Massachusetts, Nourse’s father, a small-town banker, had mapped her route through his alma maters, Andover, Princeton, and Harvard Business. Nourse went along for the first step.
But Andover ended the game of follow-the-father. She jumped coasts to go to Stanford. After graduating, she stayed in California to work for a year—crunching numbers at a think tank by day, waitressing by night—to become a state resident. What really annoyed her father came next: Victoria spurned business school. Without his blessing or money, she went to law school. And since she was now a state resident, she could attend one of the great law schools in the country, Boalt Hall of the University of California at Berkeley, for under $500 a semester.
Boalt Hall remained legendary for its influence on women and the law. Its women’s group had given crucial help in 1970 to Wendy Webster Williams when she needed a legal brief for the path-breaking Sail’er Inn. Boalt Hall remained home to Professor Herma Hill Kay, who with Ruth Bader Ginsburg and Professor Kenneth Davidson of the State University of New York had created the first textbook on women in the law and who in 1992 would become Dean Kay, presiding over the entire law school. But Nourse, arriving at Boalt in 1981, didn’t take Professor Kay’s course or any courses on women and the law. Nourse did not go to law school to study women’s issues.
Nourse liked research. At Paul, Weiss, after working for a few partners including one of the most revered, Arthur Liman, she received an unusual assignment. The firm had agreed to provide attorneys to the Senate to investigate what President Reagan knew about what became known as the “Iran Contra” affair—secret dealings in which the American government sold weapons to Iran and then diverted profits to fund the right-wing Nicaraguan rebels known as the Contras. Liman with two other partners and other attorneys went to assist individual senators. As the work started, Nourse became the young lawyer on the spot, staffing the senior lawyers and doing fast work for long hours.
As the Iran Contra investigation was winding down, Liman proposed her next job—a plum that could give her a chance at becoming partner, at a time when only one woman was a partner in the litigation division of Paul, Weiss. Liman wanted her to take charge of the research half of the insider trading case against Michael Milken. Nourse could imagine the trajectory. If she worked hard and beat the odds, she might emerge in the coveted position of partner with income approaching half a million dollars per year.
Nourse told him no. She decided that Liman was offering the chance, albeit for enormous amounts of money, to sit in a document room for what sounded like the rest of her life. She wanted to be a real lawyer like him, someone who argued cases in court. He had learned by working as a U.S. attorney, and she wanted to do the same. So, she joined the appellate staff of the Justice Department, flying to federal courts of appeals around the country, arguing cases about, for example, failed federal elevators and failed federal garage doors.
At about the time that Nourse decided she was not moving the law into new territory, in late 1989 she heard from a friend about a new job at the Senate Judiciary Committee, which was trying to forge a major crime bill. The Democrats, who controlled the Senate, and the committee needed to convince Americans that although the Republicans under President George H. W. Bush might want to look tough on crime, the Democrats were smart on crime.
Nourse interviewed with the chief counsel of the Senate Judiciary Committee, Ronald A. Klain, who made the job sound like no plum. Crucial to any crime bill would be the death penalty; crucial to the death penalty would be the law of habeas corpus. The ancient right to seek writs of habeas corpus, guaranteed in the Constitution (and perhaps originating in Magna Carta in the thirteenth century), gave advocates for death-row prisoners numerous opportunities to delay executions. The Senate Judiciary Committee needed a habeas specialist. Here was a job that fused the skills of Nourse-the-researcher with Nourse-the-litigator. She would need to study up and become a habeas expert overnight in order to prepare for countless arguments with Republican staffers intent on out-toughing her on the death penalty. She took the job.
After Nourse had been on the job a few weeks, Klain had an extra task for her: figure out what Congress should do about violent crimes against women. Senator Joseph Biden of Delaware, their boss and the chair of the Senate Judiciary Committee, for years had wanted to do something about women and crime. On that committee in 1981, for example, he had pushed for a provision opposing laws that treated rape within marriage as a lesser crime than other rapes. He was rebuffed by a senator from Alabama, Jeremiah Denton, who replied, “Damn it, when you get married,” as Biden later recalled, “you kind of expect you’re going to get a little sex.” In 1990, reading through crime statistics, Biden noticed an uptick in violent crimes against young women, which led him to studies suggesting that such violence was an accepted part of American culture. In early May of 1990, Klain read an article in the Los Angeles Times that he thought Biden should see. Written by Lisa Heinzerling, who had clerked at the Supreme Court with Klain the year before, the article described a mass murder of women:
Last December, a man walked into the engineering school at the University of Montreal armed with a hunting rifle. He entered a classroom and divided the students he found there into two groups: women and men. Shouting at the women, “You’re all a bunch of feminists,” he picked them off as if they were ducks in a shooting gallery. By the time he had finished his deadly stalk, he had killed 14 women and injured many others. A note found in his pocket after he had killed himself declared that women had ruined his life.
Heinzerling’s article then made an argument against current American law: Although some states and the federal government were enacting laws aimed at so-called hate crimes, none concerned hatred against women. A new federal law mandating the collection of information tracked only hate crimes targeting a “victim’s race, ethnicity, religion or sexual orientation.” Thus, argued Heinzerling, “if a woman is beaten, raped or killed because she is a woman, this is not considered a crime of hate.”
To ignore hate crimes aimed at women, she concluded, “is to signal that crimes committed against women because they are women do not trouble us very much. That is a message welcome to no one but the misogynist.”
Klain showed the article to Senator Biden, who responded immediately that he wanted to do something. “This wasn’t a hard sell,” recalled Klain. He went to Nourse with a challenge: what should Congress do?
It did not occur to Klain, who himself had taken a course on women and the law at Harvard, to ask Nourse what she studied in law school. Since the early years of such courses at New York University and Rutgers, students of both sexes had been probing the law of rape and violence against women. Nourse, who had skipped that kind of course at Berkeley, decided to begin some research.
GOING TO THE LIBRARY, Nourse took one of the most inspiring walks of American urban life: out of the marble-halled Senate office building, down Independence Avenue, past the towering Capitol dome, and into the Law Library Reading Room of the Library of Congress. Only its name had grandeur. It lacked the oak of law schools and the chrome of corporate law libraries. The library seemed not to trust its readers: from beneath the low acoustical-tile ceiling, video surveillance cameras peered down the narrow rows of legal books.
As she began, Nourse was looking for what she thought of as a hook. It had to be a problem in the law today. It had to catch senators, mostly old men. And it had to make those male senators think that millions of voters would thank them for figuring out what to do about violence against women.
Nourse started moving from casebook to law journal to practitioner’s manual, back and forth across the Law Library Reading Room. Starting from scratch, she was giving herself a course on women in the law. Nourse glanced at the book she would have read if she had studied with Professor Kay at Berkeley: Texts, Cases, and Materials on Sex-Based Discrimination, the 1,001-page third edition of a textbook whose first edition Kay had begun planning with Ginsburg in 1971 and that appeared for the first time in 1974. Nourse read through back issues of early women’s law journals, particularly the first, the Women’s Rights Law Reporter, started by Ginsburg’s students at Rutgers in 1971. There she could read about early gender battles as described by their litigators: Ginsburg on Reed and Frontiero, Wendy Williams on Geduldig v. Aiello.
Multiple articles traced the descent of American rape law from seventeenth-century formulations of British Common Law. Often the law harked back to a comment by Britain’s Lord Chief Justice Matthew Hale, who died in 1676. A rape accusation, said Hale, is “easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”
This seventeenth-century fear for the defenseless male struck a chord in the men who shaped American law. Through the nineteenth century, state courts embraced versions of what became known as the “Lord Hale instruction.” Courts ordered that Lord Hale’s worry become more than mere commentary; they ordered that some version of his warning be given by judges as an instruction to juries in rape trials. It became, as Judge David L. Bazelon remarked in the early 1970s, “one of the most oftquoted passages in our jurisprudence.”
Other forms of modern American law had roots in Britain. Some state laws held that a man who sexually assaulted his wife had not committed rape—a legacy of the common-law doctrine that in marriage man and woman became one or of the elaboration (again conceived by Hale) that a married woman cannot be raped by her husband because by marrying she consented to all his demands for sex. Some local authorities as late as the 1970s did little to protect women from being beaten by their husbands, a practice whose roots may have grown from common-law rules that permitted a husband to control his wife through corporal punishment and perhaps from judicial opinions about the permissible size of a stick (“a switch no larger than his thumb” was one nineteenth-century American judge’s view) that the law let husbands use for thrashing wives.
Nourse also looked to more current journals. In the Yale Law Journal of 1986, she found a major article written by Professor Susan Estrich of Harvard. For somebody working toward tenure, as Estrich had been, the article’s opening sentences looked risky:
Eleven years ago, a man held an ice pick to my throat and said: “Push over, shut up, or I’ll kill you.” I did what he said, but I couldn’t stop crying. A hundred years later, I jumped out of my car as he drove away.
That story from Estrich’s days as a college student at Wellesley resembled no opening in the history of the Yale Law Journal. Estrich continued, “I ended up in the back seat of a police car. I told the two officers I had been raped by a man who came up to the car door as I was getting out in my own parking lot.”
The officers asked Estrich his race (black) and if she knew him (no). Those answers, she decided, had positive effect:
Now they were on my side.
They asked me if he took any money. He did; but while I remember virtually every detail of that day and night, I can’t remember how much. But I remember their answer. He did take money; that made it an armed robbery. Much better than a rape. They got right on the radio with that.
The police never found the rapist and never got back in touch with Estrich. When Estrich wrote her article, a decade after the attack, she was not assailing the two cops who failed to find her unidentified rapist. She wrote to assail the legal system’s handling of all forms of rape, and particularly a far more common rape: rape by men whom their victims can easily identify. Her article probed the system that, precisely when a rapist is most clearly known, most often fails to find that he has committed “rape.”
For Nourse, Estrich’s long article—longer than Ruth Bader Ginsburg’s 116-page textbook from 1974, Text, Cases, and Materials on Constitutional Aspects of Sex-Based Discrimination—offered much of value: a link from rape law’s early embarrassments to its modern ones. Estrich devoted the longest sections of her article to showing the continuity from Lord Matthew Hale to America’s “Model Penal Code.” The American law of rape focused on two tangled issues: the victim must prove that her attacker used force and that she did not consent.
For one example of the law’s view of force, Estrich turned to a case from the 1890s. In Arkansas, according to Estrich, a man “seized his victim at gunpoint, told her he was a notorious train robber named ‘Henry Starr,’ threatened to kill her, and proceeded to have intercourse with her twice.” At his trial, the jury convicted Henry Starr of rape. The attacker’s lawyers appealed. They said Henry Starr had not used sufficient “force” to have committed rape.
The United States Supreme Court in 1897 agreed with Henry Starr’s lawyers. The woman, after being abducted at gun point and told she might die, did not resist the rape itself. “More force is necessary” during the actual sex, the Supreme Court decided, for intercourse to become rape. Using a gun and threatening murder did not mean that Starr had used impermissible force in demanding sex.
Lest she be accused of making easy attacks on century-old cases, Estrich turned quickly to a 1974 case in which a man named Martin Evans convinced a college sophomore that he was
a psychologist conducting a sociological experiment, took the woman to a dating bar to “observe” her, and then induced her to come to an apartment he used as an “office.” When she rejected his advances, he said to her: “Look where you are. You are in the apartment of a strange man. . . . I could kill you.”
Scared, the sophomore gave in. The New York Supreme Court found the man innocent of rape. The court then proceeded (in language Estrich did not quote) to give advice to men:
So bachelors, and other men on the make, fear not. It is still not illegal to feed a girl a line, to continue the attempt, not to take no for a final answer, at least not the first time.
Seducers should worry, the judge continued, if they crossed the line to force or threat—did more, apparently, than say, “I could kill you.” Dismissing Evans as an “Abominable Snowman,” the New York Supreme Court in 1976 decided that he had committed not illegal rape but legal “conquest by con job.”
In her survey of permitted force, Estrich related other dark stories. In North Carolina in 1981, a man named Edward Alston had, as Estrich put it, “been involved in a ‘consensual’ relationship with a woman he often would hit if she ‘refused to give him money or refused to do what he wanted.’” After six months of enduring him, she fled and “moved in with her mother.” A month later, Alston pursued her to her school and
blocked her path, demanded to know where she was living and, when she refused to tell him, grabbed her arm and stated that she was coming with him. The victim told the defendant she would walk with him if he released her arm. They then walked around the school and talked about their relationship. At one point, the defendant told the victim he was going to “fix” her face; when told that their relationship was over, the defendant stated that he had a “right” to have sex with her again.
They went to a friend’s house. He then
asked her if she was “ready,” and the victim told him she did not want to have sexual relations. The defendant pulled her up from the chair, undressed her, pushed her legs apart, and penetrated her. She cried.
A trial court convicted him of rape and an appeals court agreed.
The North Carolina Supreme Court, however, disagreed. It conceded that, in Estrich’s words, “her testimony provided substantial evidence that the act of sexual intercourse was against her will.” So far so good. But the court was not satisfied about the level of force. As Estrich put it,
The victim did not “resist”—physically, at least. And her failure to resist, in the court’s evaluation, was not a result of what the defendant did before penetration. Therefore, there was no “force.”
Or at least there was no evidence for the type of force that, the court believed, turns consensual sex into rape. For Edward Alston to cross the line from consensual sex to rape, hitting her—or threatening to change the look of her face—had to be part of actually forcing sex.
As Estrich made clear, the women’s decisions not to fight back was one she could grasp.
Hers is the reaction of “sissies” in playground fights. Hers is the reaction of people who have already been beaten, or who never had the power to fight in the first instance. Hers is, from my reading, the most common reaction of women to rape. It certainly was mine.
Estrich’s response was an extraordinary identification of a law review author with a victim of what the law had ultimately decided not to call “rape.”
As Estrich also made clear, the problem of proving force can mesh with a problem that she did not have when she was raped: the problem of proving non-consent. The law’s worry that she had consented explained why the two policemen quickly asked Estrich if her attacker was black and if she knew him. Estrich’s answers signaled to the officers, she later realized, non-consent; that’s what got the policemen “on her side.”
Dramatic proof of non-consent could make a woman’s case easier. Henry Starr’s victim could have resisted until he used his gun, Martin Evans’ victim could have resisted until he “hurt her physically,” and Edward Alston’s victim could have resisted until he fixed her face. That is, a woman could usually get evidence of non-consent by getting hurt as well as raped. But what if she, as Estrich put it, is “afraid enough, or intimidated enough, or, frankly, smart enough, not to take the risk of resisting physically”?
For the law’s classic understanding of what a rape victim must do to prove she did not consent, Estrich turned to a case in Wisconsin in the early 1900s. A sixteen-year-old girl was walking across the fields to her grandmother’s house when she was, she said, accosted by a neighbor. He grabbed her, knocked her legs out from under her, and forced her to have sex. The girl testified,
I was trying all the time to get away just as hard as I could. I was trying to get up; I pulled at the grass; I screamed as hard as I could, and he told me to shut up, and I didn’t, and then he held his hand on my mouth until I was almost strangled.
The jury believed her: he was guilty of rape.
The Wisconsin Supreme Court disagreed; it declared her attacker innocent of rape. He was innocent because, the supreme court ruled, the sixteen-year-old girl had done too little to warn her attacker that she did not consent. “Not only must there be entire absence of mental consent,” ruled the supreme court, but there also
must be the most vehement exercise of every physical means or faculty within the woman’s power to resist the penetration of her person, and this must be shown to persist until the offense is consummated.
The supreme court, insisting on seeing marks of resistance, seemed to demand injury. But it went beyond injury, adding insult. “Medical writers insist,” the court explained, that a woman who wishes to resist “is equipped to interpose most effective obstacles”—hands, for example, and pelvic muscles. Unless the man is much bigger and stronger than the woman, the court continued, “these obstacles are practically insuperable.” The Wisconsin court evidently believed that a sixteen-year-old girl with strong pelvic muscles was immune from rape. The court ruled that she had consented to sex, making it legal.
THE CONSENT STANDARD FOR RAPE SHIFTED, at least in theory and mostly due to pressure from women beginning in the 1960s and 1970s, from demanding utmost resistance to earnest or sometimes reasonable resistance. But, as Estrich demonstrated, the law’s fundamental distrust of women remained. In Hawaii in 1981, in a case of rape in an open field that echoed the Wisconsin case of 1906, a man convicted of raping his wife’s fourteen-year-old cousin after offering to drive her home was declared legally innocent by an appeals court. It ruled that the girl had not shown what her state’s law demanded: “earnest resistance.” The court was not satisfied by what it called “the victim’s pleas to appellant to stop and an attempt to push appellant off of her.”
Hawaii was not alone in demanding such resistance. In 1979 in Maryland, a court acquitted a man who lured a high-school student to a deserted place by claiming he was an agent who could help her get work as a model. After insisting she did not want to have sex, she gave in because, she said, she was afraid: she was in an isolated house, where no one would hear if she screamed or help if she resisted. Again a jury found the attacker guilty, but a court of appeals freed him. The court explained the victim did not demonstrate sufficient physical resistance—which must reach “the extent of her ability at the time.”
Yet by 1980, as Estrich found, most states had made some attempt to reform their rape laws. The most influential reforms began in the Model Penal Code. Begun in the 1950s by the American Law Institute—a members-only assembly of judges, lawyers, and scholars—the Code sought to provide a model for all state legal systems to consider and possibly adopt. Throughout the 1970s, comments kept being added, often to explain the rationales behind the Code—rationales that emerged in published form in 1980. Estrich’s discussion of the Code became an important reference for Victoria Nourse.
The Code’s drafters and commentators, all male for its section on “Sexual Offenses,” aimed to provide a systematic approach to issues of force and consent or, as they put it, aimed to “avoid making the imposition-consent inquiry entirely on a subjective basis.” To do so, the Code created three rules.
Rule 1 stated that the woman’s testimony must be corroborated—a remarkable demand since rape rarely has witnesses. Here, the Code stepped beyond the British Common Law, which had not explicitly required that a woman’s word be buttressed with other evidence.
Defense of the corroboration requirement placed the Model Penal Code’s commentators under evident strain. After reminding readers that rape charges involve often-conflicting stories, they tried to make the corroboration requirement sound like a familiar part of all law—“only a particular implementation of the general policy that uncertainty should be resolved in favor of the accused.” The corroboration requirement, that is, was only another of the law’s time-honored attempts to “skew resolution of such disputes in favor of the defendant.” Running hidden beneath such commentary was pressure on the drafters to protect rapists who may be, in the words of Morris Ploscowe, a New York magistrate and adjunct associate law professor at NYU who helped shape the Code’s view of sex, “simply following” patterns of “behavior with which they are familiar.” Ploscowe, the Code’s expert on criminal sentencing, argued for the corroboration requirement lest a man find himself “at the mercy of revengeful, spiteful, blackmailing, or psychopathic complainants” or be convicted on the “uncorroborated testimony of a strumpet.”
As Estrich made clear, the Model Penal Code demanded corroboration only for rape and sexual assault. By introducing for the first time an explicit corroboration requirement into rape law, the Code introduced a law that gave favor to men and costs to women.
Rule 2 demanded that any victim of rape file her complaint within three months. This new rule had rapid effect. Although no state law had required prompt complaint, soon a number of states were following it—or, in the case of Hawaii, outdoing it by demanding a complaint within one month of any sexual assault.
The Code’s commentators offered multiple reasons for demanding a speedy complaint, but most seemed to originate in fear. “The requirement of prompt complaint springs in part,” they explained, from
fear that unwanted pregnancy or bitterness at a relationship gone sour might convert a willing participant in sexual relations into a vindictive complainant.
Greater than their fear of the mercurial woman was their fear of the scheming woman. “Perhaps more importantly,” they continued, the prompt complaint rule “limits the opportunity for blackmailing another by threatening to bring a criminal charge for sexual aggression.”
Rule 3 added nothing new. It looked straight back to the seventeenth century. Juries must be warned
to evaluate the testimony of a victim or complaining witness with special care in view of the emotional involvement of the witness and the difficulty of determining the truth with respect to alleged sexual activities carried out in private.
This call for “special care” resurrected—now linked to women’s “emotional involvement”—Hale’s suspicion that women could easily charge rape but men could not easily defend themselves. Estrich quoted the Model Penal Code commentators’ conviction that often
the woman’s attitude may be deeply ambivalent. She may not want intercourse, may fear it, or may desire it but feel compelled to say “no.” Her confusion at the time of the act may later resolve into non-consent. . . . The deceptively simple notion of consent may obscure a tangled mesh of psychological complexity, ambiguous communication, and unconscious restructuring of the event by the participants.
Estrich noted that they felt “no need to cite any authority whatsoever in support of their understanding of how women behave and think in sexual encounters.” This failure to cite such sources may have origins in either respect for or embarrassment about its most obvious source: “Dean Wigmore.”
In 1904, Professor John Henry Wigmore, soon after becoming dean of Northwestern University School of Law, published the first volumes of what would become the dominant American law book on the crucial subject of evidence. Throughout the twentieth century, the dean and his topic became fused in his book’s title and in the minds of American law students. During more than eighty years of required reading, he became Wigmore on Evidence.
Wigmore shared Lord Hale’s fear that women would charge innocent men with rape. As a partial protection, Wigmore instructed that courts should admit evidence about the prior experiences with sex—the “unchastity”—of women who brought rape charges. He seemed unworried about women who might hesitate to bring an honest charge if the price meant opening themselves to cross-examination about every previous experience of consensual sex.
Fortunately for women, one of the first efforts of feminists beginning in the 1970s had been to counter Wigmore’s urging that courts probe rape victims’ sexual past. By the 1980s, when Estrich was writing, most states had taken action to modernize their rape laws. Still, the rise of Freudian psychiatry at the turn of the century had apparently given Wigmore a few ideas. Of women who complained of rape, said Wigmore on Evidence, their
psychic complexes are multifarious, distorted partly by inherent defects, partly by diseased derangements or abnormal instincts, partly by bad social environment, partly by temporary physiological or emotional conditions.
Since such a woman might wrongly accuse a man, Wigmore had a solution: no rape case should go to trial until after the victim had been examined by a psychiatrist, who should then testify at trial about her mental health and sexual history. (Wigmore did not suggest that the possible rapist’s psyche and sexuality be similarly examined.)
Wigmore’s schema endured in law books throughout the century, even through a partial revision of Wigmore on Evidence in 1970 by Professor James H. Chadbourn of Harvard. They had also spawned elaboration in law journals, particularly during the 1950s and early 1960s. Perhaps the classic elaboration, cited by the Model Penal Code and courts of law, came in a 1952 article in the Yale Law Journal, “An Exploration of the Operation and Objectives of the Consent Standard.” Its author, writing anonymously, as was the custom for law students writing in a university law review, explained that
woman’s need for sexual satisfaction may lead to the unconscious desire for forceful penetration, the coercion serving neatly to avoid the guilt feelings which might arise after willing participation.
A woman who wanted sex, the article continued, might act as if she did not want it. Worse, her actions might create evidence: crying, or scratching, or attempting to run away from a forceful man. So long as the man’s sexual attack was not clearly contrary to the woman’s wishes, the student author contended, “fairness to the male suggests a conclusion of not guilty.”
In 1966, the Stanford Law Review weighed in on the law’s classic demand in cases of sexual assault: utmost resistance. The anonymous writer thought he knew enough about women to explain why their resistance needed proof :
Although a woman may desire sexual intercourse, it is customary for her to say, “no, no, no” (although meaning “yes, yes, yes”) and to expect the male to be the aggressor.
This Stanford law student wanted protection from a complaint that might arise if a woman gave in to sex out of “unconscious compliance.” He wanted the resistance standard set high but still “low enough to make death or serious bodily injury an unlikely outcome.”
In 1967, the Columbia Law Review insisted on the need for a witness because, said the student author, women’s “stories of rape are frequently lies or fantasies.”
Estrich responded by asking, in effect, Whose fantasy? Men had written for decades, she noted,
about women’s rape fantasies. But perhaps the better explanation for the law, as reflected in the Code and commentaries, lies in the fantasies of men.
Men had a fear, the “nightmare of being caught in the classic, non-traditional rape”:
A man engages in sex. Perhaps he’s a bit aggressive about it. The woman says no but doesn’t fight very much. Finally, she gives in. It’s happened like this before, with other women, if not with her. But this time is different: She charges rape.
However unsupported by evidence, this male fear became encoded in law. As Estrich put it, “To examine rape within the criminal law tradition is to expose fully the sexism of the law.”
By the time Victoria Nourse turned to Estrich’s article on rape, Estrich had become one of the most prominent law professors in America. After becoming the first woman president of the Harvard Law Review in the mid-1970s and clerking at the Supreme Court, she returned to teach at Harvard while also becoming active in politics. She assisted with Ted Kennedy’s presidential attempt in 1980, and then helped run Walter Mondale’s presidential campaign in 1984. Soon after, her influential article on rape helped Estrich win tenure at Harvard Law.
But to Nourse’s disappointment, Estrich proposed little that could help the United States Senate. As Estrich approached the hundredth page of her article, she made clear what she hoped for: “in a better world,” men and women would tell each other that they wanted sex. In that better world, Estrich evidently wondered, if a woman merely submitted silently to pressure for sex, from her silence could the law “presume nonconsent”? Estrich had shared this idea—silence betokens non-consent—before publication. She heard criticism: we had not achieved the world of vocal compliance that Estrich sought.
So in her published article Estrich offered what amounted to a fallback position. At the very least, she insisted,
the criminal law ought to say clearly that women who actually say no must be respected as meaning it; that nonconsent means saying no; that men who proceed nonetheless, claiming that they thought no meant yes, have acted unreasonably and unlawfully.
And, she elaborated, in the difficult cases when women seemed to yield to threats or extortion, the law of sex could simply mirror the law of money:
For the present, it would be a significant improvement if the law of rape in any state prohibited exactly the same threats as that state’s law of extortion and exactly the same deceptions as that state’s law of false pretenses or fraud.
That is, the New York man brought up on rape charges in the 1970s would not be freed on the grounds that he had achieved “conquest by con job.” Instead, his fraud—his con job—would be as prohibited by New York law as if he had gone after the college student’s money.
The law could follow a simple rule, Estrich concluded: “I am arguing that ‘consent’ should be defined so that ‘no means no.’”
What was Nourse to do? The most significant article on rape written by a female law professor in the 1980s argued that “no means no.” Could she return to the offices of the Senate Judiciary Committee, ask for a meeting, and announce to Biden that we need a national law saying “no means no”?
Furthermore, imbedded in Estrich’s recommendations and evident to any Senate staffer was a second problem. Estrich was making recommendations for state laws, because traditionally states, ever since they began adopting Britain’s national law, had governed rape law. Pushing change through all fifty states could take decades. And each state remained free, at the end of that long process, to go its own way in how it prosecuted various types of sexual assault.
NOURSE REMAINED STUCK where she had begun, in the law library, looking for a hook. An article by a student in the Duke Law Journal of 1988 revealed that the cautionary instruction to juries based on Lord Hale’s writing still echoed in the country’s courts:
Arkansas in 1973: “Such a charge is easily made and hard to contradict or disprove.”
California in 1974: “A charge such as that . . . is easily made and, once made, difficult to defend against, even if the person accused is innocent.”
Idaho in 1978: “A charge such as that . . . is easily made, but difficult to disprove even though the defendant is innocent.”
Beyond those echoes, the Duke Law Journal delivered a twist. In 1975, the California Supreme Court had unearthed the long-neglected context for Lord Hale’s famous instruction. Although judges in the United States echoed Hale year after year, questioning the veracity of women of all ages and intellects, Hale seems to have devised his instruction when considering a special circumstance: a rape charge brought by a girl who was younger than twelve years, legally an infant.
Hale’s question had been whether a girl so young, legally not competent to testify in most cases, should be allowed to testify at all—and he believed she should. Only then did Hale write what became his famous warning:
It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.
In other words, Hale was warning that although a jury must be cautious, it could choose to trust even a young girl. Since then, during hundreds of years of rape cases, states across America had transformed Hale’s nuanced trust of one little girl into stark distrust of women.
The sleuthing into Hale conducted by the California court led a few other states to eliminate the cautionary instruction—but only a few. As of 1988, Nourse read in the Duke Law Journal, “over half of the states allow the cautionary instruction to be issued at the conclusion of a rape trial.” The Duke Law Journal proposed a solution similar to Estrich’s: since state courts seemed unwilling to move, activists should go after state legislatures, a slow process at best.
Nourse’s tour through law journals took her to volumes too obscure to be reprinted in electronic services (which the Judiciary Committee did not have available in any event). In a 1990 volume of the Florida Law Review, she found a series of talks prepared for the official release of the findings of the “Florida Supreme Court Gender Bias Study Commission,” and these looked promising. Nourse had never heard about any such commission and knew nothing about its originators: the National Judicial Education Program and the National Association of Women Judges. Nor had she known that, as the law review said, Florida was the ninth state
in which a state supreme court task force on gender bias had documented irrefutably that gender-based biases are distorting the justice system and that the victims of this distortion are overwhelmingly women.
What Nourse also saw in this just-published journal was an article that, finally, might offer what she needed to catch the attention of senators: a hook.
The article, by Robin West, a prominent law professor at the University of Maryland, focused on the marital rape exemption—the law’s ancient rule that a man is exempt from being charged with raping his wife. That exemption, defended on the Senate Judiciary Committee in 1981 by Senator Denton on behalf of getting “a little sex” in marriage, was so strong that it composed part of the definition of rape, as typified by the modern Model Penal Code: “A male who has sexual intercourse with a female not his wife is guilty of rape if . . .” The legal concept that a man cannot rape his wife was imbedded so firmly in law that it spawned an infamous joke: “If you can’t rape your wife, who can you rape?” As the joke darkly implied, if the woman was the man’s wife, no amount of force or threats or injury or pain could turn his sexual attack on her into rape.
West’s article invoked federal law—the United States Constitution and its Fourteenth Amendment guarantee of equal protection under the law. “The so-called marital rape exemption,” she argued, “constitutes a denial of a married woman’s constitutional right to equal protection under the law.”
West went further to argue that state statutes made a distinction between married victims and unmarried victims that was not rational:
the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute that criminalizes sexual assault, and punishes it severely, unless the victim and assailant are married.
For all the resistance of the supreme court to scrutinize discrimination, resistance so frustrating to Ruth Bader Ginsburg in the early 1970s, the court had remained willing to invalidate distinctions in state law that were clearly not rational. The Supreme Court had not yet, however, held unconstitutional this particular irrational distinction.
State courts were moving slowly, if at all. In 1984, a New York judge invalidated that state’s marital rape exemption. Turning to the analysis by Judge Sol Wachtler of the court of appeals of New York, Nourse found yet another trail leading back to the seventeenth century.
Judge Wachtler’s opinion began with the case at hand. In 1981 a man, who had been told to stay away from his wife in a legal order of protection, lured her to the motel where he was living by saying that he wanted to see their baby son. At the motel he attacked her, threatened to kill her, and forced her to perform fellatio on him and to engage in sexual intercourse with him. She charged him with rape. A trial judge dismissed her charge because her husband was protected by the “marital exemption.”
In order to reverse, Judge Wachtler’s opinion had to travel back from the case at hand to address the history of the marital rape exemption. And back down the track, he found the words of Lord Matthew Hale from the 1600s:
[The] husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.
Did in this kind include, in the words of the Model Penal Code, the use of “force” or “extreme pain” or the “threat of imminent death”? In much of American law, the answer was apparently yes. Many American states and courts had turned Hale’s opinion into law.
By ruling unconstitutional his state’s marital exemption for rape, Judge Wachtler moved New York into a progressive minority. As of 1990, Nourse discovered as she sat reading in the Library of Congress, the majority of states continued, by a wide variety of legal means that West detailed, to permit husbands to, in effect, rape wives. A number of states, recognizing new American lifestyles, had extended the marital rape exemption to become what might be called live-in rape protection: if a man merely cohabited with a woman, he could gain protection from charges of rape.
Following similar logic and the language of the Model Penal Code, a few states had also created a form of date-rape protection that downgraded a rape charge if a woman was a man’s “voluntary social companion.” The most persistent of these states, with the only such law in force in the 1990s, was Delaware. Nourse realized that Delaware’s denial of equal protection from date rape—unequal to the protection afforded by law to a woman attacked in another state—could indeed hook the attention of senators, including one who had a young daughter and was Nourse’s boss: Senator Joseph Biden of Delaware.
Along with providing a new hook, West’s article urged Nourse toward a new tactic: Forget going after the federal courts and the nine justices of the Supreme Court. Forget the Court’s inadequate scrutiny of inequality and irrationality. Instead, said West, in search of true equality, go after the United States Congress. For Victoria Nourse, Robin West seemed to be speaking directly to her task. West offered a plan:
Whether or not the U.S. Supreme Court or state supreme courts ever rule on the unconstitutionality of marital rape exemption, Congress has the power, the authority, and arguably the duty, to do so, under section five of the Fourteenth Amendment.
The Fourteenth Amendment itself was the law that had done little for women ever since the case in 1873 of Myra Bradwell, which denied her the right to practice law on grounds that included, as Justice Joseph P. Bradley made clear, restrictions on women that were ordained by “the law of the Creator.”
Yet the Fourteenth Amendment guaranteed, in its section 1, that a state could not “deny to any person within its jurisdiction the equal protection of the laws.” The resistance of the Supreme Court to extend this promise of equality to women had created many of the problems encountered by litigators, up to and beyond Ruth Bader Ginsburg’s first victories in the 1970s.
The promise of the Fourteenth Amendment—its guarantee in section 1 of equality, of “equal protection of the laws”—remained unfulfilled. West’s article, however, urged Nourse to think of section 1 as the goal but section 5 as the means. Section 5, the amendment’s so-called enforcement clause, granted power to Congress to draft and pass legislation needed to deliver the Fourteenth Amendment’s promise of equality. Drawing on this clause soon after its enactment, Congress had passed the powerful Civil Rights Act of 1871, which succeeded in halting the worst depredations of the Ku Klux Klan, and passed the ambitious Civil Rights Act of 1875, which attempted to combat discrimination against blacks in multiple locations including hotels, trains, and theaters. Both acts gave the federal government the power to prosecute private individuals who infringed the civil rights of others, and in cases involving conspiracy the 1871 Act gave power to any person deprived of a legal right to bring suit against private individuals (the conspirators) in federal court.
Nourse, still aiming for legislation to reduce violent crimes against women, turned again to West, who had sketched a proposal aimed at Congress: A Married Women’s Privacy Act. It would “guarantee protection to all women against violent sexual assault” and would “prohibit irrational discrimination against married women” by rape laws.
THE RIGHT TO PRIVACY HAD ORIGINS linked oddly to sex. In the long string of largely failed efforts to gain constitutional rights for women, one area had provided significant victories: the battles for access to birth control and then to abortion that became known collectively as battles for “reproductive freedom” or the “right to choose.” Those battles, which began to take legal shape in the late 1950s, took a track quite different from most later efforts for women’s rights. Reproductive freedom did not make a Fourteenth Amendment argument about equality. Rather, it began with a Fourteenth Amendment argument about liberty. Section 1 of the Fourteenth Amendment ended with two clauses:
. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Rather than argue for equality, the attorneys who crafted the constitutional arguments for birth control argued for liberty—for, in a sense, what would become known as sexual liberation. They sought the liberty to have sex or, as the first jurisdictional statement to the Supreme Court put it in 1959, in an early case called Poe v. Ullman, “the right to engage in normal marital relations” and the related “freedom or privilege to procreate or not procreate.”
The pursuit of this liberty led its author, Yale law professor Fowler Harper (who would eventually play a leading role in a more-famous successor case, Griswold v. Connecticut), to conjure the specter of the “long arm of the law” reaching into the bedroom to regulate “the most sacred relations between a man and his wife.” This image of the invaded bedroom led directly to notions of invaded “rights of privacy.” Professor Harper made no pretense that these new rights were “directly protected by the Fourteenth Amendment.” Nonetheless, he raised several times the specter of the invaded marital bedroom and the countervailing right of privacy.
Also working with Harper in 1957, writing a brief that expanded the discussion of privacy, was a young lawyer at the ACLU named Mel Wulf—who, as ACLU legal director in 1971, would work with Ruth Bader Ginsburg. Wulf argued more strongly than Harper that “the Fourteenth Amendment protects persons from invasion of their privacy by the states.” And Wulf’s brief made clear that what he was arguing for was a right to sex, or at least sexual liberation. What he called the “invasion of privacy” included the law’s presenting men and women a difficult choice that could lead to their “abstaining entirely from sexual intercourse.” Years later, speaking to David Garrow for his monumental chronicle of the “right-to-choose” effort, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, Wulf was characteristically candid. He remembered how his brief-writing on behalf of the right to privacy was made compelling by his personal sex life at the time: “I was then a single man, living in the Village, and sexually active if not promiscuous,” he said. “I had a personal commitment to birth control.” Wulf may have been more frank than other men about going to court for the freedom to have sex. In the process he had, as he later put it, “invented the right to privacy.”
Lawyers were not ready to argue that the Constitution guaranteed sex, however, and the obvious replacement—a Fourteenth Amendment guarantee of liberty—ran into technical, legal problems. The Fourteenth Amendment guaranteed not liberty itself. Rather, it guaranteed that liberty should not be taken away “without due process of law.” Lawyers were unwilling to argue that the Supreme Court return to the aggressive review that had in recent years been disparaged as “substantive due process” and that the Court was unlikely to revive.
But the Court’s unwillingness to engage in substantive due process did not keep some of its members from responding positively, perhaps viscerally, to “the right to engage in normal marital relations.” What began to take hold in the Supreme Court was support for the new idea of a right to privacy.
Tracing the path of an idea as it emerges may be impossible, but David Garrow’s Liberty and Sexuality brilliantly tracks the development of legally protected privacy. In the Supreme Court in 1961, Charles Fried, fresh out of Columbia Law School (and later to become solicitor general), was clerking for Justice John Marshall Harlan. Although Fried hated Harper’s “execrable” jurisdictional statement in the Poe case, he wrote ringingly in support of a married couple’s freedom to “follow their inclinations and consciences without interference,” with that freedom protected by a constitutional “right to privacy.”
Soon afterward, in private conference after oral argument, Justice Harlan spoke of a “right to be let alone”—but was frustrated when a majority of Supreme Court justices preferred to dismiss this early case on a technicality. Harlan then directed Fried to write a dissent, which ran to sixty typed pages. To Fried’s relief, Harlan did not rebuff his verbosity. With little change, Harlan made Fried’s dissent his own, extolling at length the right to be let alone and the Constitution’s protection of the privacy of the home. Printed alongside Harlan’s vast dissent was a shorter one by William O. Douglas, stating that a guarantee of privacy “emanates from the totality of the constitutional scheme under which we live.”
Although that early case went down to defeat, a right to privacy was rising. Both Harper and Wulf strengthened their privacy arguments in their next birth control case in the Supreme Court, the landmark Griswold v. Connecticut. And this time birth control won. The decision was assigned to William O. Douglas.
Within ten days, Douglas wrote his opinion. It rejected substantive due process. Then it created something new in Supreme Court law. Of marriage, he proclaimed that “we deal with a right of association as old as the Bill of Rights . . . a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred.” And he concluded with a flourish:
The prospects of police with warrants searching the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives is repulsive to the idea of privacy and association that make up a goodly part of the penumbra of the Constitution and the Bill of Rights.
Around the Supreme Court, clerks giggled. Justices turned jocular. Justice Tom Clark wrote to William O. Douglas that “I like all of it—it emancipates femininity and protects masculinity.” Clark, Douglas, and Justice Byron White joked together: Birth control cases involved rights as fundamental as voting cases. With voting it was “one man one vote.” With birth control, they all agreed, it was “one man one child.”
Nourse knew that for years feminists had critiqued the male-driven rise of the right to privacy. Catharine MacKinnon’s critique connected the law’s protection of privacy to the law’s failure to protect wives who are battered and wives who are raped. An indicator of this failure came in police policies that led officers, if called to homes to investigate assault charges, to choose not to arrest men for attacks that, if perpetrated outdoors in the street, would have led to arrests for assault. Another came in legal arguments defending the marital rape exemption as a defense against intrusion by government into the private lives of married couples. Thus private wife batterers found impunity not offered to the public batterer. “In this light,” argued MacKinnon, a “right to privacy looks like an injury got up as a gift.”
Aware of the widespread feminist condemnation of the substitution of privacy for equality, Nourse did not know what to make of Robin West’s embrace of privacy. Nourse could not tell that West was playing a game—was being (as West would later say) perhaps “too cute.”
West had thought, Why not try to reappropriate this tarnished notion of privacy? Why not try to use it to help women by proposing a law called the “Married Women’s Privacy Act”? West was writing an imaginative talk to be given at a low-profile law school. As she brought her article to this ironic close, West never envisioned her article would be picked up, within a few weeks of publication, by a Senate staffer with instructions to create new legislation for women.
Nourse knew that the heart of a legislative effort should not rely on privacy. Thanks to West, she could state that women who were assaulted sexually received unequal protection, varying from state to state. Thanks to West, though indirectly, Nourse also had a concept for the right law. She could tell that West had based her “Privacy Act,” enabling a legal suit for violation of a Fourteenth Amendment right, on legislation proposed earlier by Catharine MacKinnon, who in turn had based hers on the part of the Civil Rights Act of 1871 that permitted a person deprived of a legal right to bring suit.
MacKinnon, working with feminist theorist Andrea Dworkin and a coalition in Minneapolis, where both were teaching in 1983, had contended that pornography should be understood as a form of subordination of women that often included or incited violence against women. She described their proposed ordinance as “a law that recognizes pornography as a violation of the civil rights of women” and that “gives victims a civil action,” a chance to sue, “when they are coerced into pornography, when pornography is forced on them, when they are assaulted because of specific pornography.” The most controversial right to sue was against people who trafficked in pornography. Defending that provision, contained in a version of the ordinance passed by the city of Indianapolis, MacKinnon insisted it was tailored narrowly so that, as she put it, “we’re talking rape, torture, pain, humiliation: we’re talking violence against women turned into sex.”
When the Indianapolis ordinance proceeded to a test in federal court in 1985, a three-judge panel of the United States Court of Appeals for the Seventh Circuit focused on the law’s potential impact not on violence but on speech. They ruled unanimously that pornography was a form of speech, protected by the First Amendment of the Constitution. MacKinnon’s ordinance lost, but the idea of a legal suit against violence remained.
MacKinnon’s theories were familiar to Nourse, who had heard about them on frequent trips to Yale to visit a law student, Rick Cudahy, class of ’87, whom she would later marry. During Cudahy’s law school years, MacKinnon’s work had high prominence. Her attack on sexual harassment, prominent ever since she wrote Sexual Harassment of Working Women while enrolled at Yale Law, had won affirmation at the Supreme Court in 1986 in the case of Mechelle Vinson. Her attack on pornography had generated legislative efforts in a number of cities and also congressional legislation, including the Pornography Victims Protection Act, introduced in 1984 but never passed. During those years, MacKinnon traveled widely to give lectures, compiled in 1987 as Feminism Unmodified. Also, through Rick Cudahy, Nourse had an unusual connection to MacKinnon’s work. When the Indianapolis version of her antipornography ordinance was struck down by the Seventh Circuit Court of Appeals in 1985, one of the three judges voting against it was Judge Richard Cudahy, Rick’s father.
Putting family aside, and without disputing the judgment of her eventual father-in-law, Nourse saw the potential for creating a strong law. It could directly target “violence against women” (MacKinnon’s words) as a “violation of the civil rights of women” by giving “victims a civil action”—a chance to sue. Drawing on a long history of civil rights legislation, Nourse had found her course of action.