Capers: "Real Rape Too"

I. Bennett Capers has posted "Real Rape Too" (99 Cal. L. Rev. (2011)) on SSRN.  Here is the abstract:

As a society, we have been largely indifferent to the prevalence of male rape victimization. In the prison context, we dismiss it as par for the course, as "just deserts," or worse yet, as a rarely stated but widely known component of deterrence. We treat prisons as invisible zones, as zones without law, as zones that need not concern us. Outside the prison context, our response is no better. We tell ourselves male rape victimization is a rarity, or perhaps something that only happens to gay men. In short, we render male victim rape invisible, or at least un-articulable. This Article renders male victim rape visible.

This Article is also a critique of unjust silence and unjust talk. It is a critique of the unjust silence surrounding male rape victimization that permeates legal scholarship about rape. And it is a critique of the unjust talk about the specter of male rape that permeates self-defense and provocation cases. The Article argues that re-conceptualizing rape as a gender-neutral crime might help advocates of rape law reform forge new alliances. It posits that addressing the reality of male victim rape can help us rethink the very real harm of rape. And it demonstrates that incorporating the reality of male victimization can have profound implications for rethinking the law of rape.

What motivates this Article is the underlying belief that rape has been gendered for too long. Originally, it was gendered in a way that tilted the scales to benefit men: men as fathers, men as husbands, and men as rapists. Feminists were right to point out the sexism inherent in traditional rape laws in this country. Though many, including Catherine MacKinnon, were wrong to view rape as solely a mechanism of male domination of women. But the real problem is this: In arguing for reform, feminist scholars have legitimized and contributed to the very gender distinctions of which they have been so critical. In response to one form of subordination, they have entrenched another. Many rape statutes have been reformed so that they are gender neutral, but how we apply those laws is still very much gendered. As a consequence, male victims have suffered. But more broadly, the law of rape has suffered. And it shows.

AC