Stanchi on The Rhetoric of Rape Through the Lens of Commonwealth of Berkowitz @BoydLawUNLV

Kathryn Stanchi, University of Nevada, Las Vegas, School of Law, is publishing The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz in the International Journal for the Semiotics of Law. Here is the abstract.

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change. This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

Download the article from SSRN at the link.

Stanchi on The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz @BoydLawUNLV

Kathryn Stanchi, University of Nevada, Law Vegas, School of Law, is publishing The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz in the International Journal for the Semiotics of Law. Here is the abstract.

United States law and culture have yet to find a constructive and fair way to talk about rape, especially in “non-paradigmatic” rape cases like acquaintance or date rape. Particularly on college campuses, acquaintance rape is an ongoing, severe problem. Leading legal minds disagree sharply on how to address it. In part, this polarizing debate stems from our collective inability to free our language of the myths and stock stories that plague the subject of rape. No court case better exemplifies the problem than the notorious decision of the Pennsylvania Supreme Court in Commonwealth v. Berkowitz, one of the most widely taught rape cases in the United States. In his empirical study of attitudes on rape, Professor Dan Kahan used the Berkowitz facts in part because they are such an iconic representation of some of the more difficult and troubling issues surrounding acquaintance rape. In that study, Kahan concluded that whether people perceive a story as describing “rape” depends primarily on cultural cognition, meaning the cultural group to which the reader of the story belongs. The text and substance of the law’s definition of rape mattered little. Kahan concluded that if we wish to change outcomes in rape cases, the cultural understandings of rape, more than the law, must change. This essay takes Kahan’s conclusion that cultural understanding is the primary driver of rape outcomes and asks the question: from where does that cultural understanding come? In no small part, this essay argues, those cultural beliefs come from the law, particularly from legal narratives. The facts of judicial opinions reflect the judges’ cultural understanding of rape and then that cultural understanding becomes what rape is (and isn’t). That image of rape then powerfully influences cultural understanding within and outside of law. It is a recursive process by which legal narratives create and reinforce cultural understanding which then itself creates and reinforces legal narratives and so on in an endless loop. In this way, law is neither irrelevant nor innocent in the outcome of rape cases. It is just exerting its influence, often imperceptibly, through rhetoric.

Download the article from SSRN at the link.

A 1930s Alabama Rape Trial and "To Kill a Mockingbird"

A newly published book makes the case (pun intended) for a link between a real life trial and Harper Lee's famous novel To Kill a Mockingbird. Joseph Madison Beck's My Father and Atticus Finch (Norton, 2016) retells the story of a 1930s  Alabama rape trial in which Mr. Beck's father defended a black man against rape charges. It also explores pre-civil rights era race relations in the South, and the image of Southern lawyers.


Additional information, including an interview with the author, here.  Via Allen Mendenhall @allenmendenhall.

Reading Rape in Literature and Law

An old but still relevant essay: Michael Wood discusses rape in literature in this review for the London Review of Books (subscription required). Books he considers:

Ian Donaldson, The Rapes of Lucretia: A Myth and Its Transformation (Oxford 1982)
Terry Eagleton, The Rape of Clarissa (Oxford, 1982)
Carol Houlihan Flynn, Samuel Richardson: A Man of Letters (Princeton University Press, 1982).

A selected bibliography on the subject below.


Feminism, Literature, and Rape Narratives: Violence and Violation (Sorcha Gunne and Zoe Bridgely Thomson, eds.; Routledge, 2010).

Kathryn Gravdal, Ravishing Maidens: Writing Rape in Medieval French Literature and Law (University of Pennsylvania Press, 1991).

Corinne Saunders, Rape and Ravishment in the Literature of Medieval England (D. S. Brewer, 2001).

Sabine Sielke, Reading Rape: The Rhetoric of Sexual Violence in American Literature and Culture, 1790-1990 (Princeton University Press, 2002).

Kathleen Wall, The Callisto Myth from Ovid to Atwood: Initiation and Rape in Literature (McGill-Queen's University Press, 1988).

Sexual Violence, and Game of Thrones

The Washington Post's Alyssa Rosenberg discusses the shocking wedding night rape of character Sansa Stark on the May 17, 2015 episode of HBO's popular show Game of Thrones, and explains why she considers it part of the show's more encompassing narrative of violence and sexual control.

More coverage of the episode and viewer reaction here from the Christian Science Monitor.

Storytelling and Rape Law Reform

Jeannie Suk, Harvard Law School, has published "'The Look in His Eyes': The Story of State v. Rusk and Rape Reform," in Criminal Law Stories (Robert Weisberg and Donna Coker eds.; 2010). Here is the abstract.

This chapter for Criminal Law Stories (Robert Weisberg & Donna Coker eds., 2010), tells the story of State v. Rusk through the lens of rape law reform. Beginning in the 1970s, under the influence of feminism, some prevailing attitudes and expectations about sex between men and women started to change. Edward Rusk, like many guys, didn’t think he just had to stop because a girl who seemed interested said she didn’t want to have sex. He was convicted of rape at the cusp of legal transformation, when sexual behavior that had been socially commonplace was rapidly in the midst of being recast as criminal. Drawing on many interviews with lawyers, judges, and other people involved in the case, I tell the story of when and how a set of social norms of sex and dating became unacceptable. This is a story of the legal role and consequences of that social change.

Download the essay from SSRN at the link.

The Duke Lacrosse Case as Narrative

Susan Hanley Kosse, University of Louisville School of Law, has published "Race, Riches, and Reporters: Do Race and Class Impact Media Rape Narratives? An Analysis of the Duke Lacrosse Case," in the 2007 Southern Illinois University Law Review. Here is the abstract.

Focusing on the Duke rape case as a case study, this Article analyzes magazine coverage using a labeling system from a previous study of media coverage of high profile rapes to determine whether race and class shape rape narratives. Part I of this Article is a brief background about narratives generally and their importance in the law. Part II summarizes the existing research on the topic of rape narratives and media coverage of these narratives. Part III analyzes the Duke case narratives and seeks to determine empirically whether race and class played a role in the exculpation or vilification of either party. The Article concludes by comparing the past studies of rape media coverage with this new data to provide insights and conclusions about media rape coverage today.

Download the entire paper from SSRN here.