Copyright (C) 2000 Board of Regents of the University of Wisconsin System

Spring, 2000

15 Wis. Women's L.J. 3

ARTICLE:RACE AND TWO CONCEPTS OF THE EMOTIONS IN DATE RAPE
Andrew E. Taslitz *
* Professor of Law, Howard University School of Law; Visiting Professor, Duke University School of Law, 2000-2001; J.D., University of Pennsylvania, 1981; former Assistant District Attorney, Philadelphia, PA. The author thanks his wife, Patricia V. Sun, Esq., and Professor Margaret L. Paris, for their comments on earlier drafts of this article, and his research assistants, Vicky Byrd, Mekka Jeffers, Rikki McCoy, Carla Bedrosian, and Sylvia Irvin. Appreciation also goes to the Howard University School of Law for its funding of this project. The author also thanks Loyola University of New Orleans, whose invitation to speak at their conference on Women and Sexual Assault in April 1998 inspired this article.
SUMMARY:
... This means that women are held responsible for their emotions connected to sexual desire while men are not. ... Based on that judgment, she feels the emotion of sexual desire. ... The primary trigger for male repression of sexual desire is a demure, modest woman. ... The notion of gendered differences in sexual desire was with us at the birth of our nation. ... In contrast, women's sexual desire is more rational. ... Yet even those who might generally concede the wisdom of the evaluative view might reject it for sexual desire. ... Male sexual desire, including that of the rapist, is both thought and feeling. ... There is some support for the mechanistic view of Black female sexual desire in our cultural imagery. ... A whore's sexual desire has a large cognitive component. ... Furthermore, sensitivity is a concept that we can give clear conceptual content in a way of use to both judges and juries. ... Jurors should be educated by an expert about how and why most of us hold a mechanistic view of male sexual desire, but an evaluative view of female desire. ...
TEXT:
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I. Introduction
The rape law reform movement, which began during the 1990s, never achieved its goal of substantially improving the reporting and conviction rates in date rape cases. n1 Nor did the movement significantly tilt the system toward treating rape victims with greater dignity. n2 In a recently published book, I suggested changing the law of evidence in ways that might help to fix some of the reform movement's failures. n3 My book, while suggesting a new feminist approach to evidence law, did not, however, address the changes also needed in the substantive definition of date rape in criminal law. This article seeks to fill that gap by re-defining date rape to address gender and racial biases inherent in current definitions.
The article builds on the work of the philosopher Lois Pineau. Pineau argued that a man who failed to make the necessary efforts to obtain affirmative evidence of a woman's voluntary consent to sexual intercourse should be guilty of date rape, even if he sincerely believed that the woman was consenting to that act. n4 She justified her approach [*5] based on the theory of "communicative sexuality" - the idea that no sensible woman would ever consent to sex without real communication about her sexual wants. n5 Any man who fails to make serious efforts at communication must therefore assume the risk that he is wrong in believing that "she wants it." n6
Pineau's proposal has faced devastating critique from commentators on three grounds. First, her model of communicative sexuality has been deemed utopian, with radicals charging that in a male-dominated world, communication can never render sex truly "consensual," and liberals arguing that some women like sexual domination. n7 Second, she has been criticized as imposing strict liability for a malum in se crime (a crime morally wrong in itself), an approach inconsistent with sound principles of criminal punishment. n8 Third, her proposal has been described as useless because rape myths, not the legal definition of date rape, control how judges, juries, and police determine guilt. n9
I reject each of these critics' arguments and respond to the charge that Pineau's theory is utopian by explaining that her critics ignore two competing notions of the emotions in law and popular [*6] culture. Under one view, the "mechanistic conception," emotions are forces impelling persons to action, physiological states over which we have little control and which do not contain or respond to thought. n10 Our moral responsibility for having particular emotions is thus nil, our moral responsibility for actions caused by our emotions limited. n11 Under the second view, the "evaluative conception," emotions express cognitive appraisals and persons can, therefore, individually and collectively change their emotions through moral education. n12 Accordingly, we are fully morally responsible both for having our emotions and for acting on them. n13
My argument is that society wrongly views men as governed by mechanistic emotions, sex as an uncontrollable force for which men are not fully responsible, while viewing women as governed by evaluative emotions, sex as a rational choice for which women are fully responsible. Current legal definitions of rape and date rape create room for these cultural gendered conceptions of emotions to set the ground rules for rape trials. n14 However, the evaluative view is more empirically accurate and morally desirable for both sexes. Communicative sexuality embraces these observations, treating both men and women as capable of controlling both their sexual desires and their resulting behavior. n15
As to the second objection to Pineau's theory, that it unjustifiably imposes strict liability, I argue that Pineau's critics have misread her. Her theory would impose negligence liability on a man who fails to make reasonable communicative efforts. n16 Pineau did not, however, define how we gauge "reasonableness." I do so by arguing for the actions of the "sexually sensitive personality." To explain what this means and why its use is wise, I argue for a version of character morality (imposing criminal liability based on who we are, as revealed by our actions) rather than for the now-dominant action morality (imposing criminal liability based on what we do and on our accompanying mental states). n17 Under action morality, negligence liability and strict liability are both controversial. n18
However, the morality crafted here embraces negligence liability, viewing indifference to another's needs as "evil." n19 I therefore adopt a secular notion of evil as appropriate in criminal law and explain why non-communicative date rape displays aspects of both the lesser "instrumental [*7] evil" (using another person merely to further your own ends) and "pure evil" (wanting to harm another). n20 Character morality also offers the theoretical basis for understanding why we should be held responsible for how we feel, that is, for our emotional life, when inflicting character-based harms.
The third objection to Pineau's proposal, that it is useless because rape myths rather than rules of substantive criminal law decide rape trials, has some merit. My article concludes by explaining how changes in substance make it easier to justify and implement changes in procedure. Moreover, at several points in the article I examine the expressive function of the criminal law: how the messages sent by a communicative theory of sexuality help to change rape myths. n21 Changes in substance, procedure, and message combine to offer guarded optimism about the future.
Our culture's attitudes toward race combine with those toward sex to complicate each of my three major points in interesting ways, as I explain throughout the article. In particular, some sexual behavior reaches our subconscious attitudes about racial deference - our "raced emotions" - in ways that only the approach examined here can make evident. n22 For example, it explains why African-American rape victims are particularly likely to be disbelieved and what the law can do to redress that imbalance.
This article seeks to explore the implications of gendered emotions for date rape and to articulate a coherent character morality justification for changed date rape laws, a task ignored by other authors. Furthermore, this article both revises and revitalizes an important feminist contribution, the theory of communicative sexuality, in a way that makes the theory more practical and more effective by using justifications entirely missed by the theory's original proponents. Additionally, this article examines the close connection in date rape trials between substance and procedure. Finally, this article helps to complete a comprehensive reform scheme articulated in my recent book, which is the first book-length treatment of a feminist approach to evidence law.
Part II, which immediately follows this Introduction, defines the two competing concepts of the emotions and explains how and why our culture embraces these concepts in thinking about human sexuality. The Bible, American history, and social science demonstrate a longstanding American belief that male sexuality is mechanistic while female sexuality is evaluative (much space is devoted to history precisely to show the deep-seated nature of this gendered emotional dichotomy in American life). Part II explains, however, that this belief is empirically inaccurate and morally flawed, promoting rape trials [*8] based on both sexist and racist preconceptions. The latter point is explored by examining White Americans' attitudes toward African-American sexuality, revealing a link between American culture and the legal system's embrace of the mechanistic vision of male sexuality and American racism. The evaluative concept of sexual emotions holds everyone, male or female, Black or White, to a realistic, non-utopian standard of equal responsibility.
Part III continues the argument by explaining why Pineau's imposition of a new form of negligence liability is fully consistent with the moral dictates of the criminal law. Challenges to imposing criminal punishment for "mere" negligence ignore the insight that the most appropriate justification for invoking the criminal law is to condemn evil character. Part III explains why this is so and why date rapists are "evil." Because the concept of "evil" includes indifference to another's pain, a description shown to fit even the negligent date rapist, negligence liability is a perfectly appropriate standard for criminal punishment. Specifically, the non-communicative date rapist fails to demonstrate the "sexually sensitive personality" that should be seen as the most morally sound guide to all Americans' sexual feelings and behavior. Not only women, but men as well, can control and change their sexual character in positive ways and should be held accountable for failing to do so. Communicative sexuality promotes a theory of equal human worth in sexual relationships rooted in each person's responsibility for his or her individual character, a worth that exists regardless of the participant's sex or race.
Part IV concedes, however, that changes in the substantive definition of rape to match the theory of communicative sexuality will not alone produce significantly fairer rape trials. However, a new substantive definition of date rape, and new justifications for this re-definition, improve the chances for certain changes in rape trial procedures. Part IV explains why this is so for five proposed procedural reforms: (1) relaxation of the bar in many jurisdictions on admitting evidence of a rape defendant's prior acts of sexual coercion; (2) new jury selection procedures to screen out jurors embracing the mechanistic conception of male sexuality; (3) new jury instructions to educate jurors about communicative sexuality and the sexually sensitive personality; (4) new forms of expert testimony to further this same education; and (5) new techniques of cross-examination to expose a date rapist's indifference to his victim's pain.
The article concludes in Part V by expressing the hope that the combination of substantive and procedural changes recommended here can play a significant role in achieving the as-yet-unrealized dream of rape trial juries seeing past distorted and oppressive patriarchal values.
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II. Two Concepts of the Emotions in Criminal Law
A. Conflicting Views of the Emotions
Western philosophers have long debated about the nature of our emotions. The debaters fall into two camps: the mechanistic view and the evaluative view. n23 Under the mechanistic view, emotions are innate forces that impel us to action. n24 Emotions are "impulses," "drives," or "forces" more akin to physiological reactions than thoughts or perceptions. n25 While emotions may have an object, for example, a particular person with whom you are angry, the object is seen more as an external cause triggering that emotion rather than something that helps define the emotion itself. n26
The mechanistic view fits many of our popular conceptions about emotions. Emotions seem to come from something other than the core of what we think of as our "self." They course through the body with heat and urgency. n27
Because emotions are things that humans cannot control, under this view none of us are morally responsible for what we feel. n28 We can, however, sometimes be held responsible for choosing to act on our emotions. Even then, society feels compassion for actions motivated by some strong emotions, say, jealousy, because our culture understands the power of these forces that come upon them even when they wish they would not. n29 Nevertheless, society will hold people who act badly because of their emotions to some level of culpability because each person can suppress the behavior, if not the feelings. The criminal law, therefore, can promote conditioning, behavior modification, and suppression as ways to put a lid on our emotions. n30
Most psychologists and philosophers today agree, however, that the evaluative conception is more empirically accurate and normatively desirable. n31 Under this conception, reason and emotion are inseparably [*10] linked. All people feel emotions largely because they have certain thoughts. If they feel fear, it is because they have decided that a person or object is a source of danger. n32 However, thoughts do not merely cause emotions. Thoughts also help to constitute our emotions. n33
Why do most theorists adopt this view of emotions as rational activity? First, our physiological reactions must be interpreted. Is a fast-beating heart, a dry-mouth, and a sweaty brow indicative of fear, excitement, love, or a combination? Our understanding of the relevant circumstances and our own nature helps us decide. n34 Second, even when we understand that we are experiencing a particular emotion, our thoughts can vary the quality of the emotion. Many people truly feel grief over the death of a beloved pet. For most such people, however, the experience of grief over the pet's death is very different than that caused by a child's death. n35
Correspondingly, social norms offer a basis for the moral critique of our simply having emotions, as well as of our resulting wrongful actions. n36 Merely feeling emotions becomes a subject of moral critique because we are seen as capable of changing our thoughts. We can, through practice, education, and new experiences, learn to think in new ways. If we can change our thoughts, then we can change our feelings. Therefore, we are responsible for having those feelings. n37 Criminal law can also help to deter wrongful actions through its educative function, changing how we feel. n38
Having certain emotions can be criticized, either because the factual beliefs inspiring the emotions are wrong, or the beliefs are right, but we disapprove of the idea that those beliefs justify having the emotion [*11] in question. n39 Operating under a false premise, a White person may fear assault from a Black male because he believes that Black skin denotes danger. Similarly, it is also excessive for someone to react with rage at the accurate impression that another has forgotten his name. To the evaluativist, therefore, our emotions can be shaped by moral education - teaching the White person not to fear Black skin and the enraged person not to view others' forgetfulness as a grave insult. n40
Despite overwhelming empirical and normative support for the evaluative view, the criminal law remains deeply conflicted in its attitude toward the emotions. Both the mechanistic and evaluative views make their way into criminal law doctrine. n41 One example is common law voluntary manslaughter. n42 One element needed to reduce murder to manslaughter is killing in the heat of passion. n43 "Heat of passion" is described by courts as "blind," "unreasoning," or a force that "dominates volition." These words convey the heat and physical urgency of the mechanistic view. n44 Under that view, a defendant's punishment should be mitigated because his emotions impaired his volition. n45 In many jurisdictions heat of passion alone, even if unprovoked or unreasonable, reduces murder from first to second degree. n46
A further reduction to manslaughter requires more. The provocation into the heat of passion must be by the victim. n47 In many jurisdictions, only certain kinds of provocation count - for example, [*12] adultery. In other jurisdictions, while there are few precise limits on the types of provocation, the jury must conclude that the type involved would provoke any "reasonable man." n48 The law thus rejects the idea that uncontrollable passion necessarily justifies mitigation. Instead, the law expresses an evaluative judgment: society feels compassion for the offender only if he was justified in feeling such passion. Also, the law finds such justification only if the victim provoked the offender with particular conduct. n49 Thus, the law assumes that the defendant is responsible for his emotions, which is the essence of the evaluative view. The law also judges the wisdom of the defendant's acting on his emotions, for he deserves compassion only if he directed his rage at its cause: the victim. n50