Dan Subotnik

Dan Subotnik is a Professor of Law at Touro Law Center in New York City. He has written extensively on race, gender and law.

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Dan Subotnik

Dan Subotnik is a Professor of Law at Touro Law Center in New York City. He has written extensively on race, gender and law.

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Your first book is known as a rape classic and looks at the laws surrounding rape and the idea of women as property. This is Against Our Will by Susan Brownmiller.

Susan Brownmiller is a major player in the feminist area. She has written extensively about the history of feminism. This one is a groundbreaking book. In the late 70s and 80s a spate of books came out about rape. The incidence of rape or reported rape increased in that period but I don’t think anyone knows why exactly that was so. Brownmiller was one of the first to say, ‘Hey, wait a minute, this is outrageous; we need to do something about this.’ Rape was not a big issue for earlier feminists such as Betty Friedan and Simone de Beauvoir.

Susan is looking at rape around the world?

Yes, and there is this whole idea that women have been seen as the property of their husbands or fathers. This book also focuses on the psychological effects of rape. This is the book that really got me thinking about rape and rape reform. There have been a lot of changes in the area of rape law in the United States and in the UK since this and other books came out.

Your next book examines the context of rape in Susan Estrich’s book Real Rape.

This book is interesting because Susan Estrich, although raped by a stranger, focuses readers’ attention on date rape. She reported that a large number of rapes actually take place within existing relationships.

But, it is a very difficult thing to prove – whether someone has been date raped. What kind of steps are being taken to make the legal process easier?

Yes, it is very difficult to prove and a lot of claims are screened out by the police because they are not confident they can make this claim successfully to a jury. I have been thinking about how we tackle that and spoke about it recently in The Battle of Ideas, a conference held in the UK.

One of the major contemporary reform proposals would require women’s clear consent in verbal or physical terms before there can be ‘legal sex’. The doctrine in question goes by the name of ‘affirmative consent’. The present rule in most American jurisdictions is that if the woman does not resist there is no rape (unless she is unconscious). The theory is that such a regime would give women a chance to express their rejection of sexual contact, and there might be less unwanted sex as a result. But, obviously, consent or non-consent by themselves are incredibly difficult to prove; resistance, on the other hand, can leave evidence.

And, beyond the difficulty of proof, you have a problem of how consent is manifested between men and women. One of the things that I have found in my research of the literature is that many women report expressing their assent to sex through not doing anything. A woman, for example, might simply let a man disrobe her. We sometimes have this romantic idea that men and women should be declaring themselves to one another; that’s not the way it often happens.

And where do you stand on the issue of affirmative consent?

I think that it is wholly unrealistic to have a law which operates against the way that people play at sex. These things are deeply embedded in us and there are psychological studies showing that women don’t want to say yes, even if they mean yes. Sometimes, it is because they don’t want to appear to be considered loose, sometimes it is for religious reasons. Some don’t want to say yes, it seems, because they can pretend it is not happening, while at the same time wanting it to happen.

I am emphatically not saying that this is the norm. I am saying only that consent by abstraction happens often enough that affirmative consent would be a burden on contemporary practice.

In theory, then, affirmative consent sounds like a good idea but in reality it can’t work. I think that the line that is drawn now is pretty reasonable and we should remember that the law has changed dramatically over the last 30 or 40 years in the right direction by (1) eliminating the corroboration reports; (2) abolishing the requirement of resistance to the utmost; (3) extending statutes of limitation. Like many social movements, the rape reform movement has gone too far. I am one of a small number of people who are pushing back.

Emilie Buchwald’s book Transforming a Rape Culture explores the idea of our society encouraging male aggression.

This is a book of edited articles about rape that emphasises the need for widespread education. Many good ideas are presented. One of the book’s problems is that rape culture is cured with curing sex culture.

In my research I have found that women themselves by and large do not want to change the sex culture all that much. They are not willing to convict in all kinds of hypothetical situations that I and others have put before them. They like the status quo. They believe that a woman has certain responsibilities in connection with sex, so that if a woman goes to a man’s apartment and the man starts abusing his privileges, it is up to her to say no.

But sometimes saying no doesn’t work.

You are right, of course. But there have been convictions for rape which have taken place when the woman has clearly said no. One way of solving the date rape problem is for women not to put themselves in a situation where a no will be ignored. One of the interesting things is that women jurors seem less sympathetic to complainants than do men jurors, at least in the US. The women jurors will look at the woman and say she did not give a clear red light. What an irony that many prosecutors want men jurors rather than women jurors.

Now you could look at that and you could say that women jurors just don’t understand the new culture that allows women to go to a man’s room at night when no one is around. Or you could say that they have been brainwashed by masculine values. I don’t like the idea of attributing ideas and behaviour to such ‘false consciousness’, by which I mean the unthinking absorption of a culture that is so polluting that women ignore their own interests and let things happen to them that they don’t want to happen.

It seems to me that this is a wonderful time to be a woman. Women have never had so much power personally, socially or economically. The idea that a woman is incapable of saying no seems silly and destructive to me. If a woman can’t say no in a sex situation how can she say no in a business situation? If she can’t say no to a man in one she can’t say no to a man in another and be the chief executive of, say, British Petroleum.

But, what about the situation where rape is used as a weapon? You have all those stories of women in places like the Congo being raped and I don’t believe it was in their power to say no.

All of that is horrible. But I do not accept the proposition that a modern woman in one of the Western countries is in the same situation as a woman in desperate, war-torn Congo. I support everything that feminist reformers do in these situations.

There is also the aspect of physical strength. Even in Western countries if a man really wants to force himself on a woman and rape her saying no will not stop him.

Yes. Often a man can overpower a woman. But in situations where the parties know one another, the woman often has some leverage. A friend of mine was in a difficult position with a man some years ago and told the man at a critical point, ‘I can’t imagine that you are the type of person who would force himself upon a woman.’ The man stopped and left. There are, of course, no guarantees.

Robin Warshaw’s book I Never Called it Rape is looking at the whole area of date rape.

This is a story of consciousness-raising by a woman who blamed herself for unwanted sex and did not file charges. Through her writing, she decided that she had been much too hard on herself. This book is especially important because, more than anybody else, she sheds light on the grey areas of rape. And there are lots of them. Often alcohol is consumed and the question becomes how to interpret the drinking? People drink to loosen up in order to be able to enjoy sex. Should the law define rape as sex with a woman who has consumed alcohol? Where do we draw the line? What if the man has deliberately supplied the woman with alcohol to loosen her up? Does that make the sex illegal? Those are very difficult circumstances and the law should be reluctant to override individual judgments, as unfocused as it may be.

Your last book is Joan McGregor’s Is it Rape? On Acquaintance Rape and Taking Women’s Consent Seriously.

This is a book that talks about affirmative consent which is very much my topic. Affirmative consent, discussed earlier, has been introduced into legislation in some parts of the US and also in Canada. If you assume, as some do, that sex is normally an imposition on a woman, much like a battery, then it seems appropriate that as a man you should never assume that a woman wants sex and thus should ask the woman explicitly.

That seems very unnatural.

Absolutely. But of course we can agree that what is natural today may not be natural tomorrow and that is what these scholars say. If you impose this then it creates a new nature. On the other hand, and this is my more important point, there is no groundswell of support for affirmative consent from the younger women. What do we do in that situation? Do you force affirmative consent down their throats?

The current system is by no means perfect. There are endless reports about how few people are prepared to take legal action after being raped and, even when they do, often after a nightmare experience in court there is no conviction.

Yes, you’re right that the experience is often a nightmare and I am glad you made that point. It has gotten a little easier as a result of rape shield statues that many jurisdictions have enacted. These preclude investigation of sex by the woman with other men. But most sex, it would seem, takes place where there are no witnesses. Without overhauling our legal system, and allowing complainants to absent themselves from court during a rape trial, there is very little that can be done to preclude complainants from relieving their nightmares. I don’t think we are ready to overhaul the legal system and deny the accused the right to face the accuser. Or to take the matter out of the hands of jurors, who, and as I have said before, can be unsympathetic to complainants.

So what is the best course of action for someone who has been raped?

I think that if you have been raped and you are clear that you have not given consent, then you go to the authorities. There are plenty of convictions and perhaps you owe that to other potential victims. But, if you get high on whatever substance and you go to someone’s apartment and you have had a sexual relationship with that person in the past, and then you claim that there was sex without consent, then, as a practical matter – as painful as it is to hear – it is likely that the prosecutor is not going to bring the case forward. This is because they will rightly suspect that the jury will not convict. Reasonable doubt is the touchstone of the legal system and in the situation I have just described there is plenty of room for reasonable doubt.

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