4 | Rape and Domestic Assault

In 1969 the Scottish writer George MacDonald Fraser published a novel titled Flashman. It was the initial installment of what proved to be a wildly popular series. The narrator and protagonist of the books is Harry Flashman, a Victorian soldier and adventurer. Early in the first novel Flashman tries to rape his father’s mistress. Furious at being fought off, he hits her twice in the face and knocks her to the floor. “I looked round for something to go after her with,” he tells the reader, “a cane or a whip, for I was in a frenzy and would have cut her to bits if I could.” A little later he is stationed in India, where he buys himself a 16-year-old mistress and then, peeved because he is being transferred to Afghanistan, gives her “the soundest thrashing of her pampered life.”

This is all presented as picaresque, and by and large that is how the book and its sequels were received. Flashman was an “anti-hero,” not a villain. Reviewers called the series “marvelously funny”—“one of the bright gems of the English comic novel.” Nor was the appeal limited to Britain. By the time Fraser died in 2008, Flashman had fans all over the world, including in the United States. John Updike, the late twentieth-century American man of letters par excellence, was an enthusiast.

If any female critic ever wrote fondly about the books, though, I have yet to locate her. And notwithstanding its continued popularity, it’s doubtful that Flashman would be greeted as warmly if the novel were written today. Harry Flashman was racist in a way that was supposed to be funny but seems even less amusing today than it did in the 1970s. The deeper problem, though, is his habit of beating up women, which no longer reads as simply “caddish.”¹

Modern readers are apt to have two different reactions to scenes of Flashman slapping women around. On the one hand, it seems like violence, pure and simple, and it is not any more entertaining because its victims are female. On the other hand, the fact that the violence is directed at women does seem to matter. It’s not just violence, it’s sexual violence; and it is wrapped up in the intended appeal of the books. The various editions of Flashman all have similar cover art: they all depict the central character standing in dress uniform, hand on his sword, with a loosely clothed, dark-skinned woman seated submissively at his feet. Flashman was something of a sadist, even outside of a sexual context: he liked to see “a good flogging,” and took pleasure in placing bets “on whether the man would cry out before the tenth stroke, or whether he would faint.”² But violence toward men was never as central to his character or to his story as his sexual conquests.

There is some tension between the two reactions a reader today is apt to have to Flashman’s assaults on women. One reaction is: this is just violence. The other is: this is a special kind of violence. It’s fully consistent to say both that it’s important to recognize the violence in sexual violence, and that it’s important to recognize the ways in which sexual violence can differ from other kinds of violence. Still, there’s a tension between emphasizing the violence in sexual violence and the sexual in sexual violence. The same tension has run through the debates over the past half century about the law’s response to rape and sexual assault, and to the closely related problem of domestic violence. Rape law reform since 1970 has been driven, first, by an insistence that rape is a crime of violence, and second, by a widespread belief that the crime of rape, or sexual assault, should not be defined by or require the use of physical force. There have been parallel debates about how to think about and respond to domestic violence. The feminist movement of the 1970s and 1980s, which lay behind the wave of rape law reforms during that decade, also sparked a new focus on domestic violence, and new demands that violence within intimate relationships be treated as criminal—that the perpetrators be arrested, prosecuted, and locked up. In subsequent decades, though, there were increasing calls to recognize the ways in which domestic violence differs from other forms of violence, and calls for different responses. There has also been a growing sense that violence is too narrow a lens for understanding victimization within intimate relationships: that domestic violence has to be understood as just one part of the broader problem of domestic abuse, and that the problem at the heart of domestic abuse is not violence, per se, but power, domination, and coercive control.

All of this is to say that ideas about violence have played an important role in shaping legal responses to rape, sexual assault, and domestic violence. And not just ideas about the significance of violence, about how much it matters whether or not particular conduct is violent. Debates about rape and domestic violence have often taken the form of disagreements about how violence should be defined—what should count as violence—and, even more so, about the nature of violence, and sexual violence in particular. To what extent are sexual assault and domestic violence the products of culture—of patriarchy, of misogyny, or of social patterns of power and domination? To what extent are they manifestations, instead, of individual character? And to what extent should they be understood as the product of circumstances? Different answers to these questions have shaped legal responses to rape and domestic violence at different times.

Here as elsewhere, ideas about violence intersect, often in explosive ways, with ideas about race and class. But gender is the demographic fault line that has most powerfully shaped these areas of the law, and most powerfully shaped arguments about how they should change. The perpetrators are most often—but certainly not always—male, and the victims are generally—but far from universally—female. Questions endure about whether and how rape, sexual assault, and domestic violence should be understood as sexual offenses, but there is no question that they are gendered.

Rape and domestic violence are overlapping but separate problems. Most sexual assaults are committed by perpetrators who know their victims, but some, obviously, are carried out by strangers. Much domestic violence consists of sexual assaults, but most does not. The problems also follow different patterns and present different challenges. By most measures, sexual assault is less common than domestic violence—not just because more men commit domestic violence than commit sexual assault, but also because domestic violence tends to become part of the ongoing, day-to-day life of a household or an intimate relationship in a way that sexual assault usually does not. Nonetheless, there are important similarities in how ideas about violence have played out in both of these areas, especially with regard to how they have intersected with ideas about race, class, and above all gender.

Rape as Violence

It may seem odd that feminists in the 1970s and 1980s felt the need to insist that rape is violence. After all, rape had long been defined as a crime involving, as an essential element, the actual or threatened use of physical force. William Blackstone’s eighteenth-century formulation, which became canonical, described rape as “carnal knowledge of a woman forcibly and against her will.” And rape had long been understood as a particularly serious felony. It remained a capital offense in a handful of American states until 1977, when the US Supreme Court ruled that executing a defendant for rape was “cruel and unusual” in violation of the Eighth Amendment. The Court reasoned that rape was not comparable to murder “in terms of moral depravity and … injury to the person and the public,” although it was “without a doubt deserving of serious punishment.”³

The problem was that although rape was, in theory, an especially serious offense, in practice it was notoriously difficult for women who were raped to seek redress through the criminal justice system. Rape prosecutions encountered a series of special challenges, and those challenges were linked to another way in which the reality of rape law differed from the theory. In theory, rape required violence, but in practice, the legal system seemed to treat the essential harm of rape as something other than the violence inflicted on the victim. Rape law, as actually administered, seemed to protect, first and foremost, the interest of men—fathers and husbands—in the sexual purity of women. The law did not recognize forced intercourse between a husband and wife as rape; “marital rape” was, formally, a contradiction in terms. Prosecutors rarely brought rape charges when the victims departed from the ideal of a white, upper- or middle-class, “virtuous” woman—either a faithful wife or a virgin. And when, contrary to usual practice, prosecutors did bring charges in cases involving working-class women, women of color, or sexually active women, juries typically refused to convict. Rules of evidence allowed defense attorneys in rape trials to introduce evidence of the alleged victim’s reputation for promiscuity, and the attacks of this kind frequently became the principal focus of the proceeding. Victims felt that they rather than the defendants were on trial, and the trauma of the proceedings discouraged women from pressing charges. All of this was consistent with the idea that rape was akin to wrongful seduction, and rapists were often described as sexual offenders, grouped together with exhibitionists, peeping toms, and homosexuals.⁴

The legal treatment of rape changed significantly in the 1970s and 1980s, at least on paper. The marital exception was substantially eliminated, evidence about the victim’s sexual history was greatly restricted, corroboration requirements were dropped, and the common requirement that prosecutors prove the victim had exhibited “utmost resistance” was weakened or abandoned. The driving force behind all of these changes was feminism. More precisely, the reforms were brought about by anti-rape organizing that was itself part of the broader, late twentieth-century movement for women’s liberation—a movement now commonly referred to as “second-wave feminism,” to distinguish it from early twentieth-century feminism, which had focused on getting women the right to vote.⁵

Legal reform was not the sole aim of the anti-rape movement in the 1970s and 1980s, or even, initially, the movement’s principal focus. Feminists in the early 1970s saw rape as a cultural problem: a key component of women’s oppression. Writing in 1971, Susan Griffin called rape “the All-American crime.” Fear of rape, Griffin said, was a “daily part of every woman’s consciousness” but was cloaked by a “conspiracy of silence.” Rape was “not an isolated act”; it was “a form of mass terrorism” and “the quintessential act of our civilization.” The “basic elements of rape” were “involved in all heterosexual relationships,” and therefore could not be eliminated with “simple reforms.” Attacking rape required attacking “patriarchy itself.” That same year Susan Brownmiller put the rapist at one end of a spectrum, adjacent to the “gooser … the ogler, the lip-smacker, the animal-noise maker, and the verbal abuser.” Rape, she suggested, was “a metaphor for all male-female relations.” Four years later Brownmiller elaborated on these ideas in her influential book Against Our Will. Rape, she argued, needed to be understood as the ultimate instrument of patriarchy. Rape wasn’t just a crime, it was the linchpin of a whole culture of misogyny and male domination—what feminists came to call “rape culture.” In 1970 Kate Millett had sounded a similar theme, if only in passing, in her book Sexual Politics, one of the foundational texts of second-wave feminism. “Patriarchal force,” Millett wrote, “… relies on a form of violence particularly sexual in character and realized most completely in the act of rape.… In rape, the emotions of aggression, hatred, contempt, and the desire to break or violate personality, take a form consummately appropriate to sexual politics.”⁶

“A form of violence particularly sexual in character”—like many feminists in the early 1970s, Millett insisted that rape was both violent and sexual. Griffin, too, called rape “the perfect combination of sex and violence”; it showed how tightly “in our culture male eroticism is wedded to power.” For many feminists in the early 1970s, a historian of the movement has noted, rape “represented the perverse combination of pleasure and violence (and pleasure in violence) that was elemental to patriarchy.” But the violence was the part that seemed to need emphasis. “We are not accustomed to associate patriarchy with force,” Millett noted. But rape, she insisted, was precisely male domination through violence. By the end of the 1970s the core claim of the anti-rape movement, or at least the mainstream of that movement, was that “rape is violence, not sex.”⁷

Stressing the violence of rape accomplished several things. It deromanticized rape, categorizing it with murder and assault instead of with carnality and seduction.⁸ It pushed back against the notion—still common in the mid-twentieth century—that rape, although illegal, was a natural and understandable expression of the male sex drive.⁹ It served as a reminder that rape was a crime, and a particularly serious one; it therefore gave rhetorical support to efforts to make the criminal process tougher on rapists and more welcoming to their victims.

Calling rape “violence” also did some work in widening what counted as rape. If violence was what counted, and not the damage to chastity, to honor, or to the interests of the victim’s husband or father, then it was harder to ignore rapes within marriage, rapes of working-class and minority women, rapes of sexually active women, and rapes of men. And if rape was the ultimate manifestation of a culture of sexism and misogyny—of “rape culture”—then insisting on the violence of rape was a way of underscoring the seriousness of more prosaic forms of patriarchy, like sidewalk ogling, workplace harassment, and pornography. Feminist attacks on pornography in the 1970s and 1980s relied especially heavily on the link between pornography and rape—on the idea that, as Robin Morgan famously put it, “pornography is the theory, and rape the practice”—and on the understanding of rape as violence first and foremost. The feminist critics of pornography emphasized the ways in which pornography glorified, fetishized, and encouraged violence; going further, they insisted that pornography was itself “violence,” because it debased and violated women.¹⁰

The drive for restrictions on pornography failed. It ran aground because of strong resistance from civil libertarians, including many feminists, and because of technological changes that made the very idea of regulating access to sexual content seem increasingly quixotic. By many measures, though, the anti-rape movement of the 1970s and 1980s was a success. Rape laws were reformed to loosen restrictions on prosecution, reduce requirements that victims try to fight off their attackers, and curb attacks on the character of testifying victims. Rape crisis centers, which provide hotlines, counseling, and other support for victims of sexual assault, were established in communities across the United States; by the end of the 1970s there were more than a thousand of these organizations. At the federal level, the Violence Against Women Act (VAWA) of 1994, which significantly increased federal financial support for rape crisis centers, also recognized gender-motivated violence as a civil rights violation and, in the very title of the legislation, reinforced the understanding of rape as first and foremost a crime of violence.¹¹

Accompanying these legal and institutional changes was a shift in the cultural understanding of rape. (At least that is true of heterosexual rape outside of prisons. Prison rape—and in particular the rape of male prisoners—is another story, which will have to wait for Chapter 6.) It is rare today to hear rape described as natural, understandable male behavior. Rape is beyond the pale. A sense of shame still attaches to rape victims, and partly as a result the crime often goes unreported. But the cloak of silence around rape has become thinner and thinner over the past half century, as more and more victims have stepped forward. There was a particularly sharp rise in the number of rapes reported in 2017 and 2018 in the wake of the “#MeToo” movement, which encouraged women to go public with their experiences of sexual assault and sexual harassment.¹²

The greatest achievement of the anti-rape movement of the 1970s and 1980s may be that rape appears to have become less common. It is hard to tell for sure, because rape statistics are notoriously hard to interpret. The first problem is that many rapes go unreported, and the extent of the underreporting has varied over time. The second complication is that the meaning of the term “rape” has varied over time as well. The legal definition of rape has been altered by the wide-scale repeal of the marital rape exception, the trend away from requiring “utmost resistance” from victims, and, in many places, the reinterpretation or elimination of the requirement that rape be accomplished by “force.” Equally important, the lay understanding of rape, at least among many people, has expanded to include coerced sex between acquaintances, even when it does not result in visible injuries and may not seem “violent” in some conventional senses of that word. All of these factors make it difficult to compare rape statistics from different years.

Since 1973, however, the National Crime Victimization Survey conducted by the US Department of Justice has estimated the incidence of rape based on responses collected from a random sample of the population, rather than relying on reports to the police. The survey was overhauled in the early 1990s, and direct questions about rape and sexual assault were added for the first time, so data collected in the 1970s and 1980s cannot easily be compared with data collected in later years. Moreover, the old form of the survey plainly resulted in rape being drastically underreported, and the new survey, although a clear improvement, may still undercount the crime. Still, it is encouraging that the trend in rapes reported by victims, both before and after the survey redesign, is sharply downward.¹³

Nonetheless, the success of the anti-rape movement has been limited, and some of its failures may be attributable, ironically, to part of what helped the movement succeed: defining rape as violence. Even as legal restrictions on rape prosecutions have diminished and the support provided to rape victims has improved, the changes have been most dramatic in the treatment of cases involving rapes that are “violent” in the narrowest sense: forced sex with a stranger, accomplished by the threat of deadly force, or an assault leaving serious physical injuries. The idea has lingered that this is “real rape” or “legitimate rape”; for all the attention paid to “date rape,” women who are coerced to have sex with partners or acquaintances still find it difficult to get what they have experienced labeled and treated as a crime. That has changed, somewhat, in the wake of the #MeToo movement, but in general police and prosecutors remain suspicious of rape allegations in “non-stereotypical” cases, and in most parts of the United States these cases are still rarely prosecuted.¹⁴

Until recently the FBI continued to define rape, for purposes of the crime statistics it collected, the same way Blackstone had defined the crime: as “the carnal knowledge of a female, forcibly and against her will.” In 2012 the Bureau changed its definition to include any forced sexual penetration, as well as “nonforcible” rape. That same year, though, a senatorial candidate argued that abortion should be flatly banned, even for rape victims, because “legitimate rape” could not result in pregnancy. (“If it’s a legitimate rape,” he explained, “the female body has ways to try to shut that whole thing down.”) President Obama responded that “rape is rape,” but even today, in the day-to-day operation of the criminal justice system, it frequently remains true that “rape is violence”—and if not violent, it is not a crime at all.¹⁵

Feminists themselves have recognized that equating rape with violence has costs, and they have long been divided, as a group and sometimes as individuals, about whether those costs are worth paying. Writing in the mid-1980s, Susan Estrich described “a debate of some vigor as to whether rape should be thought about as sex or violence,” with the first position—“rape as sex”—advocated by “feminist theoreticians who argue for a more expansive understanding of coerced sex,” and the second position—“rape as violence”—attributed to “ ‘liberal’ (as opposed to radical) feminists.” Millett’s perspective in the early 1970s, that rape should be understood as both violent and sexual, that it was “a form of violence particularly sexual in character,” had given way to a polarized contest between two mutually inconsistent ways of understanding the offense.¹⁶

Estrich herself found it difficult to pick a side in the contest between “rape as sex” and “rape as violence.” She bemoaned the idea that rape was “real” only when it involved the kind of force that schoolboys use on the playground; she wanted rape law to recognize “that power can be exercised without violence.” So while she recognized that “the ‘rape as violence’ approach may strengthen the case for punishing violently coerced sex,” Estrich worried that “it may do so at the cost of obscuring the case for punishing forced sex in the absence of physical violence.” On the other hand, Estrich thought, “[focusing] on the violent aspects of rape makes clear that you are not trying to prohibit all sex and that violent men … must not only be treated as sexually aberrant, but also be incapacitated as dangerous to the community.” And calling rape violence would help to underscore that sex shouldn’t be violence: it would push back against the long-standing view that violence in sex was “normal.” On balance, therefore, Estrich suggested that “rape as violence” was “the better approach both theoretically and strategically.” Thirty pages later, though, Estrich argued that “rape was about sex and sexual violation.” What made a “violent rape different—and more serious—than an aggravated assault” was “the injury to personal integrity involved in forced sex,” and the same injury was present when sex was coerced without a weapon or a beating.¹⁷

That view—that rape was sex obtained though the exercise of power or domination, with or without violence—became the consensus view of anti-rape activists. Catharine MacKinnon, the feminist scholar generally credited with having invented the legal category of “sexual harassment,” argues that rape should be defined as any “physical invasion of a sexual nature under circumstances of threat or use of force, fraud, coercion, abduction, or the abuse of power, trust, or a position of dependency or vulnerability.”¹⁸ There have been qualms within the movement about widening the category of rape this far. Even the term “date rape” has been criticized by some feminists, partly on the ground that it infantilizes women by treating them as “passive victims” who lack the ability to say no. For similar reasons, some feminists worried about the creation of sexual harassment law: they were concerned that it trivialized and diverted attention from the true horror of violent sexual assault. Those apprehensions continue to be raised, but among feminists and anti-rape activists the argument has been lost. Sexual harassment training has become a pervasive fixture of American workplaces, even if it does less to change behavior than to insulate employers from liability. The remedies for sexual harassment are civil and administrative, not criminal. But particularly in the wake of the #MeToo movement, reformers increasingly group rape together with other forms of criminal sexual predation or “abuse,” the common element of which is sex that is coerced or otherwise involuntary. The American Law Institute, for example, has been working for years on a revision of the sexual assault provisions of the Model Penal Code. The new rules, still in draft form, criminalize all sex that the perpetrator should know is nonconsensual. Violence—“physical force”—is relevant only as one way to prove lack of consent, as an “aggravating element,” separating more serious from less serious versions of the offense. Estrich, too, had suggested that coerced sex without violence should be treated as rape, but a less serious form of rape.¹⁹

Meanwhile there is renewed interest in the decades-old work of Andrea Dworkin, one of the “radical” feminists most prominently associated with what Estrich called the “rape as sex” view. During her lifetime, Dworkin’s influence seemed to fizzle along with the anti-pornography campaign she helped to lead, without success, in the 1970s and 1980s. But in the #MeToo era, a new generation of feminists has found itself drawn to Dworkin’s understanding of rape as “our primary model for heterosexual relating.” Like most rape law reformers today, Dworkin insisted that “any forced sexual act must be considered rape.” In fact, she went further and suggested that a kind of “presumptive rape” takes place whenever social circumstances make a woman’s consent to sex less than fully voluntary. She didn’t actually say that “all sex is rape,” but it is easy to see why that idea became widely attributed to her. She repeatedly denied that any sharp line—and certainly not the presence of “violence” as it is generally understood—separated rape from “normal” sex in a society structured by male domination.²⁰

So the resurgent interest in Dworkin is yet another sign of mounting dissatisfaction with “rape as violence.” It is consistent with the growing tendency to categorize rape together with other forms of “sexual abuse,” defined in terms of power of domination (although Dworkin would not have thought that even that category had sharp boundaries under conditions of patriarchy). It resonates, as well, with a development we encountered in Chapter 2: the trend over the last couple of decades to treat “sex offenses” as a category apart in criminal law, especially serious and especially deserving punishment, much as violence has been treated as a category apart. Some states in fact define violence—for purposes of sentencing enhancements, eligibility for parole and probation, and access to therapeutic courts—to include some sex offenses not actually involving force. Other states simply extend to sex offenses, or at least some of them, the same treatment given to crimes of violence.²¹

The reduced salience of violence in defining rape, the growing support for “rape as abusive sex” instead of “rape as violence,” has encountered significant resistance, including from some feminists. Much of the opposition stems from concerns about widening the net of criminal law. It grows out of many feminists’ long-standing uneasiness about the anti-rape movement’s embrace of criminal sanctions, the movement’s transformation into a form of what has been pejoratively called “carceral feminism.”²²

In the 1980s some feminists found common cause with law-and-order conservatives. They joined together to press for more vigorous policing and prosecution of sexual assault, as well as for stronger legal restrictions on pornography. Other feminists resisted this alliance, and the result was a fracturing of the anti-rape movement that persists to this day. Many activists and scholars worry that combatting sexual assault by ramping up arrests and prosecutions has exacerbated the explosive growth in US prison populations. They want to attack rape without fueling mass incarceration.²³

Race and the Nature of Sexual Violence

Concerns about “carceral feminism” intersect powerfully with concerns about race. Members of racial minorities, especially African Americans, are dramatically overrepresented in US prisons, and mass incarceration has been famously called the “new Jim Crow.” And, of course, there are special reasons to worry about the racialized use of rape laws. Most rape, like most violent crime, is intra-racial, but fears of Black men sexually assaulting white women have always played an outsized role in the public imagination. Of the close to 4,000 Black men lynched in the United States from the end of Reconstruction through the mid-twentieth century, roughly a quarter had been accused of sexual assaults against white women. Today African Americans are overrepresented among rape defendants, as they are overrepresented among violent crime defendants in general.²⁴

Black women active in the civil rights movement led protests in the late 1950s and in the 1960s against the failure to prosecute white men who raped Black women, and Black feminists in the 1970s wrote about and organized around the issue of sexual assault of Black women. It was an issue with a long and horrific history: enslaved Black women were routinely raped by their white “owners,” and sexual assaults on African American women were an important part of the regime of racial terror that continued in the South following the end of the Civil War. The legal system’s failure to protect Black women from sexual assault was not limited to the South, and it did not stop when Jim Crow ended. But the dominant voices in the anti-rape movement of the 1970s, as in second-wave feminism more broadly, were the voices of white women. This made race a complicated territory for the anti-rape movement to navigate, and it was not always navigated skillfully.²⁵

Susan Brownmiller’s handling of race in Against Our Will was a particularly divisive case in point. Brownmiller devoted a chapter of her book to the racial politics of rape. She acknowledged the long history of “the white man [using] the rape of ‘his’ women as an excuse to act against black men,” but she also insisted that African American men themselves, acting in the name of their manhood, bore some of the responsibility for the persistent image of “the black man as rapist.” She pointed in particular to Soul on Ice, the celebrated collection of prison essays by the Black Panther leader Eldridge Cleaver. Cleaver wrote that raping white women had been, for him, “an insurrectionary act,” a way to get revenge on the white man by flouting his laws and despoiling his women. Cleaver said he later realized he had “gone astray,” and that he “could not approve the act of rape.” Brownmiller understandably found this a weak apology, especially because after Cleaver’s release from prison he told an interviewer that rape had been “simply one of the weird forms my rebellion had taken.” And Brownmiller was appalled by the failure of writers on the left to hold Cleaver accountable, at what she called their “rush to accept the Cleaver rationale for rape.”

Unfortunately Brownmiller linked these points to a much wider argument about the racial politics of rape. There was too much excusing, she suggested, of actual rapes carried out by African American men, because misplaced guilt had made interracial rape a “huge political embarrassment for liberals,” and it had become “unfashionable in extreme white radical circles to question any misguided aspiration articulated by blacks.” Furthermore she argued that the long association of rape accusations with lynchings and executions of African American men in the South needed to be reinterpreted and qualified. This was even true, Brownmiller suggested, of the brutal murder and mutilation of Emmett Till in 1955, a pivotal event in the prehistory of the civil rights movement. Till was fourteen years old when he was killed for allegedly whistling at a white woman; he had been visiting family in Mississippi. Yes, Brownmiller wrote, Till’s murder was ghastly and unforgivable, but “we must also accept” that the whistle, in context, “was a deliberate insult just short of physical assault.”

Brownmiller’s broadsides about racial politics, her insistence that African American men themselves were partly responsible for the stereotype of the Black rapist, and above all her effort to reframe the story of Emmett Till as partly about the victimization of white women—all of this drew strong criticism from African American readers, including many African American women, and it contributed to a growing schism between white feminists and feminists of color. “The crossroads of racism and sexism had to be a violent meeting place,” Brownmiller wrote, and there was “no use pretending it doesn’t exist.” Her critics didn’t deny the reality of that “violent meeting place,” but they disagreed about what occurred there and what kind of pretending needed to end. Angela Davis spoke for many Black feminists when she charged that Brownmiller and white feminists like her were recycling racist tropes, apologizing for racial terror, and marginalizing the victimization of Black women. “The black woman is getting raped while the white woman is doing the screaming,” complained the sociologist Nathan Hare.²⁶

The racial politics of rape are less divisive today. There is still disagreement about whether systemic racism within the criminal justice system—in general, and specifically with regard to sex crimes—is reason enough not to expand the scope of rape laws. But the nature of the “crossroads of racism and sexism” is less controversial than it used to be. There is broad understanding, at least among reformers, that most sexual assaults are intra-racial, and it is far rarer to hear worries about racial sensitivity obstructing anti-rape work.

Another dispute about the nature of sexual violence continues to shape rape law and anti-rape policy, though. It has to do with the origins of sexual violence: whether sexual assaults are caused by the warped psychology of individual offenders, or instead by patterns of male domination and misogyny running throughout our society—“rape culture.” On the second view, rapists aren’t monsters, or, for that matter, truly deviant; they are just men who—because of the circumstances in which they happen to find themselves—act out, and make physically manifest, a script that lies latent in most men, or at least a very large number of them. This is a version, of course, of the character-versus-circumstances debate about violence more generally, the debate that has also left marks on modern sentencing statutes, on therapeutic courts and other penal diversion programs, and on efforts to address police brutality. We will see in later chapters that this debate has inflected juvenile justice, prison policies, and constitutional law as well.

In the area of sexual violence, as in substantive criminal law more generally, the trend over the past several decades has been toward thinking about violence as dispositional rather than situational. The women who started the anti-rape movement in the 1970s took the opposite position. Rape is “normal,” argued Susan Griffin; it is “encouraged as part of our culture.” Rape wasn’t committed by “psychopaths,” Andrea Dworkin wrote, but by “normal men”; other than a criminal conviction, there was “nothing … to distinguish the rapist from nonrapist.” Many feminists today take a similar view, arguing that rape lies latent in our culture. We can’t make progress against rape, they suggest, if we continue to see rapists as monsters; on the contrary, rapists are “all too human.”²⁷

Nonetheless, the understanding of rape that informs contemporary rape laws is strongly characterological. The legal system treats rape as a crime that tends to be committed by a particular kind of person: a sexual predator. Evidence that a defendant committed other offenses in the past generally is excluded from trials as unduly prejudicial; in cases of sexual assault, however, evidence of this kind is explicitly allowed by federal evidence law, and some states admit the evidence as well. It is thought to be more probative in these cases. As we have seen, recidivist statutes often group sex crimes together with violent offenses as the categories of prior convictions that will trigger sentence enhancements, or single out “sexually violent predators” for particularly harsh sentences. Moreover, statutes enacted by every state and the federal government require sex offenders to register with local law enforcement officials, and provide for notice to community members whenever someone convicted of a sex offense moves into their neighborhood. No pattern of offending is required to trigger these requirements; one conviction is enough. These registration and notification laws typically apply in theory to all sex offenders, not just violent sex offenders. But the degree of required notification depends on the perceived likelihood that an individual will reoffend, and in most states that assessment relies first and foremost on whether the defendant was convicted of an offense involving physical violence, and if so, how much. Since 2006, federal law has encouraged this approach by withholding some grant funds from states that do not follow it.²⁸

The harsh sentences and the registration and notification requirements imposed on “sexually violent predators”—and even the statutory language itself of “sexually violent predators”—stand in contrast to the arguments about the nature of rape advanced by feminists and anti-rape activists in the 1970s. The severity and the focus of rape laws draws on a strongly characterological understanding of sexual assault, and in turn reinforces that view. This is one reason some feminists remain critical of the way in which the anti-rape movement allied itself with groups advocating tough-on-crime policies, and uncomfortable with the dominant role that criminal prosecutions have come to play in the anti-rape agenda. There are other reasons, as well. One is the persistence of racial biases in rape prosecutions: not only the disproportionate rate at which men of color are prosecuted and the disproportionately heavy sentences they receive, but also the tendency of the system, even today, to respond more forcefully when rape victims are white. There is evidence, as well, that draconian penalties for sexual assault, together with registration and notification requirements, can make prosecutors more reluctant to charge “non-stereotypical” rape cases—cases not involving a physically violent attack by a stranger—and juries less willing to return guilty verdicts in such cases.²⁹ And there has always been a strand of feminist thinking that is skeptical of coercive state power in general; part of the point of feminism, from this perspective, is precisely to imagine more cooperative modes of social organization, including different ways of responding to violence.

Understanding rape as violence was key to the achievements of the anti-rape movement. But the latter history of the anti-rape movement is partly a history of increasing worries about the role that ideas about violence have come to play in rape law: ideas about the significance of violence in identifying and understanding rape; related ideas about how to define violence, or “force,” in the definition of rape; and ideas about the nature of sexual violence, whether to see it as dispositional or cultural. The history of domestic violence law has followed a similar pattern: an early insistence of the violent nature of domestic abuse, followed by later worries about making violence too significant or defining it too narrowly. And in the areas of domestic violence, too, there has been a swing toward understanding violence as strongly rooted in the character of offenders.

The Violence in Domestic Violence

Domestic violence, as a conceptual category and an object of legal reform, emerged in the 1970s. Like the anti-rape movement, which in many ways served as its model, the domestic violence movement grew out of second-wave feminism.³⁰ Feminists in the 1970s saw rape as a manifestation of the same culture of patriarchy that let men hit their wives with impunity. Legally, assaults within the home were criminal; unlike rape laws, assault laws had no spousal exception. The old common-law rule allowing husbands to physically discipline their wives was abolished by the early twentieth century. But practice differed from theory. Police were reluctant to intervene in domestic disputes, beyond separating the parties to allow tempers to cool, and prosecutors rarely filed criminal charges for spousal assaults that weren’t fatal.³¹

As with rape, the early responses by second-wave feminists to domestic violence did not primarily take the form of efforts at law reform. In the late 1960s and early 1970s, feminists who focused on domestic violence created shelters for abused women and mounted public education campaigns, often through consciousness-raising groups housed in the shelters. The efforts in this period were aimed at bodies and minds: providing sanctuary to women fleeing abusive home lives, and changing the way assaults on women inside the home were understood, including by the victims themselves. In the words of one activist, the movement sought “to name the hidden and private violence in women’s lives, declare it in public, and provide safe havens and support.” The very use of the term “domestic violence” served to identify physical assaults on women inside the home as violence, and to connect them conceptually with assaults outside the home. (Until the 1970s the phrase “domestic violence” had referred to violence that was “domestic” as opposed to international: riots or insurrection within the boundaries of the United States.)³²

Stressing the violence in domestic violence suggested inescapably that it should be treated more like assaults by strangers: treated, in other words, like a crime. And like the anti-rape movement, the domestic violence movement in the 1980s found itself in uneasy alliance with law enforcement agencies and “tough on crime” conservatives, calling for more arrests, more prosecutions, and more punishment of men who assaulted their wives and girlfriends. The calls were successful. Many jurisdictions around the country mandated arrest in domestic violence cases, barred prosecutors from dropping the cases, authorized longer sentences, and loosened rules of evidence to make convictions easier to obtain, even when victims declined to testify.³³ States and localities also made it easier for women to obtain civil protection orders, requiring abusers to stay away from their victims. If the abuser and the victim lived together, the protection order required the abuser to move out. Even when the victim did not seek a protection order, courts began to issue them in criminal cases, as conditions of a defendant’s pretrial release. Violations of protection orders—both civil protective orders, sought by victims, and criminal protective orders, sought by prosecutors—were themselves prosecuted as crimes, typically as misdemeanors.³⁴ At the federal level, the Violence Against Women Act of 1994 provided funding for battered women’s shelters and established a National Domestic Violence Hotline, but it also established new federal crimes and higher penalties for intimate assaults, and grants to support state and local prosecution of domestic violence cases.³⁵

Domestic violence appears to have declined since the 1980s, despite an upturn during the 2020 coronavirus pandemic when many victims found themselves isolated at home with their abusers. But it is unclear how much of the credit for the long decline, if any, should be given to the increase in arrests and prosecution, as opposed to the aging of the American population—older women are assaulted less often—and to improvements in legal services provided to victims.³⁶ The more aggressive use of arrests and prosecutions in domestic violence cases has been controversial from the start, including and maybe particularly among feminists. The turn toward criminal law has been criticized for taking agency away from victims of domestic violence, including in ways that may endanger them. Mandatory arrest policies have often resulted in both parties to domestic disputes being arrested. An influential study in the early 1980s, which suggested that mandatory arrest policies decreased reoffending by perpetrators of domestic violence, proved difficult to replicate; later studies suggested that arrests might actually increase recidivism. “No drop” policies, requiring prosecutors to move forward with domestic violence cases even over victims’ objections, can coerce victims into providing evidence against their abusers even when it may provoke further violence, and may discourage some victims from reporting their abuse in the first place. Mandatory arrest policies can have these effects, too. Protection orders, and their criminal enforcement, have been called a form of “state-imposed de facto divorce.” And both the victims and the offenders entangled in the criminal justice system by virtue of all of these policies tend disproportionately to be poor and members of racial minorities. The criminalization of domestic violence has therefore been criticized, including by some feminists, for worsening the racial inequity of the criminal justice system more broadly.³⁷

Not all critics of “carceral feminism” object to emphasizing the violence in domestic violence; some, as we will see, value the focus on violence as a way to limit the criminalization of domestic abuse. Conversely, many supporters of more aggressive use of arrests and prosecutions for victimization within intimate relationships have had their own second thoughts about the term “domestic violence” and the focus of attention on physical attacks. Researchers and activists increasingly suggest that focusing on violence is reductive. The central problem in abusive relationships, they argue, is domination and exploitation; physical assaults are just one way that control is exercised, and not necessarily the most harmful way. There is an increasing focus on psychological forms of abuse, which sometimes, but not always, are linked to the threat of physical violence.³⁸

This has led to suggestions that the concept of violence should be broadened to include “emotional violence,” and accordingly that laws and programs targeting domestic violence should be broadened to address psychological as well as physical abuse. In the United Kingdom and in Ireland, “controlling or coercive” conduct by a spouse or intimate is now a separate crime. There have been calls, largely unsuccessful so far, for similar legislation in the United States.³⁹

Just as some feminists and domestic violence activists in the 1980s entered into an uneasy alliance with law enforcement groups and “tough on crime” conservatives, opposition to expansive criminalization of domestic abuse now draws together an awkward coalition of decarceration advocates and cultural conservatives. In 2018 the US Department of Justice changed the definition of “domestic violence” on its website, eliminating language that included “emotional,” “economic,” or “psychological abuse” aimed at controlling an intimate partner. The new definition limited the category of domestic violence to “felony or misdemeanor crimes of violence” committed within a household, family, or intimate relationship. The Trump Justice Department’s new, narrow definition of “domestic violence” did not reflect uneasiness with mass incarceration or with racial inequities in arrests and prosecutions. It reflected uneasiness with feminism, or perhaps with government bureaucracy, or with government bureaucracy in the service of feminism.⁴⁰

Understanding Domestic Violence

The domestic violence movement did not simply name and publicize the violence women experienced from intimate partners; it provided a set of ideas about how to understand that violence and respond to it. The ideas came in two packages: the cycle of violence, and the power and control wheel. Both sets of ideas have been widely and lastingly influential.

The cycle of violence (Figure 5) was proposed by psychologist Lenore Walker at the end of the 1970s. Her idea was that the marriages and intimate relationships within which domestic violence occurs have a particular, repeated dynamic. An explosion of violence is followed by a period of contrition and displays of affection, during which the abuser apologizes and reconciles with the victim; the contrition phase is followed by a tension-building stage, in which the abuser becomes angry and the victim tries to avoid provoking him; the escalating tension eventually triggers another explosion of violence; and the cycle repeats itself. Walker thought that women stay in relationships of this kind because the cycle of violence creates a form of learned helplessness. She called the problem “battered woman syndrome.”⁴¹

FIG. 5 A representation of Lenore Walker’s “cycle of violence” theory.

Beginning in the 1980s, expert testimony about battered woman syndrome, often from Walker herself, began to be offered in criminal trials in support of self-defense claims raised by women who had killed their abusive husbands. The point of the testimony was to explain why the women didn’t leave their partners while they had a chance. Some defendants also relied on Walker’s theory to explain why their attacks on their abusers should be deemed justified or excusable, even if the next explosion of violence directed at the defendant might not seem to have been “imminent,” in the sense that the legal doctrine of self-defense traditionally required. Courts were initially hostile to admitting expert testimony about battered woman syndrome, but that soon changed, in some states by judicial decree, in others by virtue of statutory enactment. Some courts also began to instruct juries that they should assess the reasonableness of the defendant’s actions from the vantage point of a “reasonable battered woman,” not a “reasonable person” in the abstract. Later, evidence about Walker’s cycle of violence was admitted in support of duress claims advanced by women who testified that they had been battered. Prosecutors themselves began to introduce expert evidence about battered woman syndrome in cases against men accused of domestic violence.⁴²

Despite the wide influence it continues to exert, the theory of battered woman syndrome has been heavily criticized, including by some feminists. Some of the criticism has to do with perceived weaknesses in the evidence supporting the theory. Some has to do with Walker’s language: describing victims of domestic violence as passive and “helpless,” and using the term “syndrome” to describe what some argue is a set of circumstances, not a psychological condition. Some of the criticism has to do with the claimed universality of the theory: even if it accurately describes some abusive relationships, it may not offer insight into all of them. This is true even if domestic violence is understood, as it traditionally has been understood, as mainly a problem about women victimized by men. But battered woman syndrome, and the law of domestic violence more generally, has also been faulted for ignoring the dynamics of battering in same-sex relationships, and the experiences of men abused by women.⁴³

Moreover, whatever its merits, battered woman syndrome is a theory about abusive relationships and why battered women stay in them. It is not a theory about where violence comes from: what drives men to be batterers, and how they can be reformed. Walker’s focus was the women in abusive relationships, not the men who abused them.

In this respect the cycle of violence is perfectly complemented by the power and control wheel (Figure 6), the central component of the Domestic Abuse Intervention Project developed in the early 1980s in Duluth, Minnesota. The “Duluth Model” is a treatment program for batterers, the most widely emulated program of its kind. When courts order men who have battered their spouses or girlfriends to participate in a violence prevention program, more often than not it follows the approach of the Duluth Model. The heart of the curriculum is the power and control wheel, a diagram summarizing the theory of domestic violence on which the Duluth Model is based.⁴⁴

FIG. 6 The Duluth Model’s “power and control wheel.” (Reprinted with permission of Domestic Abuse Intervention Programs.)

Despite its circular form, the power and control wheel does not describe a cycle. It is meant to be read from the outside in. The most basic feature of domestic abuse is physical and sexual violence, represented by the outer band of the power and control wheel. The hub of the wheel is power and control: what batterers use physical and sexual violence to obtain. And between the outer band and the hub of the wheel is a series of spokes representing tactics that abusers combine with physical and sexual violence to maintain power and control: coercion and threats, intimidation, economic abuse, emotional abuse, isolation, strategic use of the couple’s children, male privilege, and “minimizing, denying and blaming.”⁴⁵

The Duluth Model thus understands domestic violence as an instrument of male domination, and it is consistent with the idea that domestic violence is fundamentally about power. The United States doesn’t have a freestanding crime of coercive control in intimate relationships, but the prevailing approach to treating the perpetrators of domestic violence in the United States is predicated on the understanding that domination is at the heart of the offense.

Like Walker’s cycle of violence, the Duluth Model has its critics. As with battered woman syndrome, some of the criticism of the Duluth Model pertains to its empirical support. Experimental proof of the program’s effectiveness is thin. Beyond its evidentiary basis, the model’s emphasis on male domination has struck some critics as heavy-handed and bullying. The curriculum has been accused of stereotyping and vilifying offenders: treating “all domestic violence misdemeanants … as potential O. J. Simpsons—purposeful, controlling, strategic, and ultimately murderous in their use of violence.” Part of the point of the Duluth Model is to contextualize domestic violence by situating it in the general culture, but in practice, its critics say, it has demonized offenders instead, reverting to a dispositional rather than situational understanding of intimate abuse. (Many states have evidentiary rules that make it easier to introduce evidence of a defendant’s prior wrongdoing in domestic violence cases than in other criminal cases—something that a range of jurisdictions, including the federal courts, also do for sexual assault and child molestation. Those rules, too, have been criticized for taking an excessively dispositional view of domestic violence.)⁴⁶

Like Walker’s cycle of violence, the Duluth Model has also been called essentializing and reductive. Critics complain that it treats all domestic violence as heterosexual, with male perpetrators and female victims, and that it treats all male-on-female domestic violence as having the same logic. (That charge has been made, as well, against rules allowing liberal use of propensity evidence against defendants charged with domestic violence.) One issue that has always hovered in the background of domestic violence law is to what extent domestic violence should be understood as violence, plain and simple. That issue winds up having several different strands. One is how central violence is to domestic violence: whether emotional and psychological abuse is as damaging and deserves as much attention as physical assaults. A second question is to what extent the violence in domestic violence has its own distinctive profile—whether, like rape, domestic violence is “particularly sexual in character.” A third question is whether, if domestic violence is distinctive, what makes it distinctive is patriarchy—and if so, how we should think about violence within same-sex relationships, or violence inflicted by women on their husbands or partners. A fourth question is how important it is to make distinctions within the category of domestic violence—between heterosexual and same-sex relationships, between male violence and female violence, or between other subcategories that differ in fundamental ways. A fifth and final question is the inverse of the first one: not how central violence is to domestic violence, but how central domestic violence is to violence more generally.⁴⁷

Violence, Domestic and Otherwise

It may be a mistake to see domestic violence as just one particular kind of violence. Instead, perhaps, we should see the problem of domestic violence as the problem of violence, full stop, but viewed from a particular angle, with home and intimate partnerships in the foreground. A very large percentage of violence is “domestic”: nearly half of all women killed annually in the United States are killed by husbands, boyfriends, and former husbands and boyfriends; and most sexual assaults are committed by perpetrators who know their victims. Furthermore, domestic violence is often closely linked with forms of violence we do not ordinarily think of as domestic. More than half of all mass shootings, for example, begin with the killing of a partner, former partner, or family member. It is possible that police violence, too, is linked with domestic violence: rates of spousal and partner abuse are unusually high among police officers.⁴⁸

Even aside from these chains of causation, the lessons learned about domestic violence, like those learned about sexual assault, may be applicable to violence more generally. If substantive criminal law has erred by placing too much weight on the category of violence, and criminal procedure has erred in the opposite direction, the legal treatment of domestic violence, like the policing and prosecution of rape, illustrates both dangers. The violence inside households and intimate relationships was long overlooked; it wasn’t treated as real violence. The first task of domestic violence activists, like the first task of rape law reformers, therefore was—and remains—to make a particular form of violence more visible, to insist that it be treated as violence. But just as with rape, an excessive emphasis on the violence in domestic violence proved limiting. Focusing only on physical assaults can mean ignoring related forms of abuse within households and relationships.

The emphasis that the Duluth Model places on power and control is one way to avoid this second kind of myopia. That focus resonates with the increasingly influential feminist understanding of rape culture as a dimension of patriarchal authority and dominance. And this is a perspective that some feminists have long suggested should be applied to violence more broadly. The feminist scholar Gloria Watkins, publishing under the name bell hooks, has been particularly emphatic on this score. She has argued that all violence is linked to domination, and that anti-rape activism and domestic violence activism should be viewed as just one part of a larger movement against all violence. And once you start looking, it is not difficult to see the theme of power and control in other forms of violence. In 2020, for example, when President Trump urged state and local law enforcement agencies to use more force—including deadly force—in response to the unrest triggered by recent police killings, he said it was necessary to “dominate” protesters, because “if you don’t dominate, you’re wasting your time.” (In the following days several commentators noted that “dominate” seemed to have become the president’s favorite word.) It may be too sweeping to treat all violence as being about power and control, but that lens might still help us understand a good deal about violence outside the context of households and intimate partnerships.⁴⁹

Domestic violence also offers lessons for the debate between characterological and situational understandings of violence. The most widely used tool for estimating the risk that a victim of domestic violence will be killed by her partner, the Danger Assessment, takes into account some of the partner’s general characteristics—for example, whether he abuses drugs or alcohol—but focuses most attention on the history of his interactions with the victim, and on a range of situational factors, such as whether he owns a gun, whether he is out of work, and whether the victim has a child that is not the child of her partner. The Danger Assessment thus serves as a warning against understanding violence as being wholly a matter of individual disposition or wholly a matter of circumstances. And downplaying situational factors can make it harder, not just to evaluate the risk that domestic violence will turn lethal, but to recognize domestic violence in the first place. Like rapists, perpetrators of domestic violence can escape detection when they seem too normal and do not match preconceptions of what a violator will look like.⁵⁰

While it can therefore be a mistake to distinguish too sharply between domestic violence and other forms of violence, we can err, as well, by failing to draw distinctions within the category of domestic violence. There are particular forms of physical assaults on wives and girlfriends that appear to be especially predictive of later lethal attacks—including, possibly, mass shootings. This appears to be true, notably, of strangulation. And researchers increasingly emphasize that not all domestic violence follows the same patterns: some domestic violence fits the coercion and control narrative at the heart of the Duluth Model, whereas other domestic violence (particularly, in many cases, violence by women) is more episodic and circumstantial, reflecting a loss of control rather than bullying and domination. Domestic violence intervention programs may be more effective if they are more tailored.⁵¹

Legal scholars, like naturalists, historians, and linguists, like to talk about “lumping” and “splitting,” two complementary tools for organizing the world. Lumping involves grouping together things that might otherwise seem unrelated; splitting involves drawing distinctions within a category that might otherwise appear uniform. Both tools are indispensable. The trick is to use them wisely and deliberately.

Debates about rape and domestic violence over the past few decades have been, to a significant extent, debates about lumping and splitting. The insistence that rape is a crime of violence, and the creation of the category of domestic violence, were exercises in lumping: necessary, overdue recognition of the terror and physical brutality that links sexual and domestic assaults with other acts of violence. But the “particularly sexual” nature of rape matters, too, and so does the intimate context of domestic violence. Rape and domestic violence are in some ways just like other physical attacks, and in some ways different. We need to hold both truths in our heads at the same time.

Lumping rape and domestic assaults into the category of violence splits them off from coerced sex and forms of intimate abuse that are not violent, or that are violent only if we expand the definition of that term to include psychological, emotional, and economic persecution. That expansion can be helpful. It allows us to see the degree to which forms of rape and domestic abuse that are not conventionally “violent” can nonetheless share some of the evil of violent sexual assaults and domestic violence as it has more conventionally been understood. It can also allow us to appreciate the ways in which violent and nonviolent forms of victimization can feed off each other—for example, how physical assaults, emotional manipulation, and economic pressure can work together in an abusive relationship.

For other purposes, though, it still can be important to distinguish domestic abuse that takes the form of violence, in the traditional sense of physical assault, actual or threatened. The line isn’t always sharp. Sometimes what is called “psychological violence” involves explicit or implied threats of physical force—pointedly cleaning a gun, for example, to establish an atmosphere of intimidation. Still, it may be worth preserving a distinction between domestic violence, actual or threatened, and other forms of relationship abuse. One reason to preserve that distinction is precisely that it sharpens the connection between rape and domestic violence, on the one hand, and other forms of violence, on the other.