This Article explores some of the difficulties involved in designing genuinely effective and broadly inclusive legal strategies for eliminating women's sexual oppression. Part II.A begins the analysis by using Gary LaFree's empirical studies of rape enforcement practices to develop some observations about the kinds of legal strategies most likely to foster women's sexual autonomy.' LaFree's studies illustrate how the institutional structures and decision making procedures of the criminal justice system create the opportunity for rape processing practices to reproduce relations of race and gender subordination. Each discretionary decision point in the system creates a social space in which legal agents can deploy racialized images of male and female sexuality. Because these images are both racist and sexist, their circulation in the processing of rape cases is a vehicle through which state power becomes embedded in and subordinate to the cultural logic of white supremacy and male supremacy.
LaFree's account of the criminal justice system also suggests why feminist legal strategies that target the criminal justice apparatus have been and are likely to remain ineffective in eliminating rape. It is precisely because some degree of discretion is inevitable at every decision point in any case processing system that the legal struggle for female sexual autonomy-for freedom from rape and sexual coercion-must move beyond the struggle to reform the substantive criminal laws and the legal procedures through which these laws are enforced. Redefining the substantive elements of rape or reforming evidentiary rules, for example, cannot eliminate the discretion embedded at each decision point in the criminal justice system. Because the culturally dominant images of race and sexual identity inevitably influence the processing of rape cases through the discretionary judgments of individual agents, these images and their social production are themselves important targets for feminist legal intervention and political struggle.
While LaFree's studies allow me to articulate the "rules of sexual accessibility" that show the connection between rape processing practices and the logics of white supremacy and male supremacy, the ultimate question for women is still whether we can really expect to eliminate rape-and if so, how and under what circumstances. In Part II.B, I approach these questions with the understanding that the legal strategies feminists advocate are directly informed by the answers we give to these questions, that these answers depend on how we understand the meaning of rape, and that different women under- stand rape differently, depending in part on differences in the way women experience sexuality, class subordination, and racial privilege. To explore these differences, I offer three categories for defining what rape may mean to different women. These categories are "rape as hate crime", "rape as sex", and "rape as power". These definitions of rape suggest ways in which the practice of rape is reinforced by the distribution of economic resources and racial privilege, as well as by the culturally dominant images of femininity and masculinity. As a result, some women are more sexually vulnerable than others, and the struggle for sexual autonomy requires legal strategies that can address these differences.
Elizabeth M. Iglesias,
Rape, Race, and Representation: the Power of Discourse, Discourses of Power, and the Reconstruction of Heterosexuality,
49 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol49/iss4/1