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The Gender Question in Criminal Law*

Published online by Cambridge University Press:  13 January 2009

Stephen J. Schulhofer
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Extract

Over the past decade, both the doctrine and the practice of criminal law have come under intensely critical review by feminist scholars and reformers. The territory under reexamination by or because of feminists spans the problems of women as witnesses, defendants, and prisoners in the criminal justice system; it extends to the situation of women as potential victims and offenders in diverse offense circumstances. Crimes in which the defendant or victim is typically female (e.g., prostitution, rape) are predictable subjects of feminist concern, but attention has extended as well to the dynamics of women's experience (arguably distinctive and certainly neglected) in connection with such offenses as assault, shoplifting, drug offenses, and even armed robbery.

Feminist criticism and reform efforts have focused for the most part at the level of specific rules or particular areas of practice. In this paper I want to comment on the structure of the feminist critique and to compare its underlying assumptions to those of criminal law as it has been traditionally understood and practiced. In at least some of its prominent versions, feminism entails orientations and commitments incompatible with those of the received criminal law tradition. To the extent that this is true, criminal law, constructed and expounded almost exclusively by males, can fairly be characterized (descriptively) as “sexist” or at least “gendered” (that is, male-oriented) in its core assumptions. Moving to normative ground, I suggest that if the descriptive claims of the feminist movement are true to any substantial extent, then criminal law – conceived in terms seemingly uncongenial to a large part of our population – would require thorough reexamination.

Type
Research Article
Information
Social Philosophy and Policy , Volume 7 , Issue 2 , Spring 1990 , pp. 105 - 137
Copyright
Copyright © Social Philosophy and Policy Foundation 1990

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References

1 E.g., Williams, Wendy M., “The Equality Crisis: Some Reflections on Culture, Courts and Feminism,” Women's Rights Law Reporter, vol. 7 (1982), p. 175.Google Scholar

2 Gilligan, Carol, In a Different Voice: Psychological Theory and Women's Development (Cambridge: Harvard University Press, 1982).Google Scholar

3 Catherine MacKinnon argues that the different voice described by Gilligan, is “the voice of the victim.” “Feminist Discourse, Moral Values, and the Law – A Conversation” (panel discussion), Buffalo Law Review, vol. 34 (1985), pp. 11, 27.Google Scholar

4 Consider Bender, Leslie, “A Lawyer's Primer on Feminist Theory and Ton,” Journal of Legal Education, vol. 38, pp. 3, 10–11Google Scholar:

Our legal system… resolves problems through male inquiries formulated from distanced, abstract, and acontextual vantage points, while feminism emphasizes relationships, context, and factual particulars for resolving human problems.

5 Mackinnon, Catharine A., Feminism Unmodified (Cambridge: Harvard University Press, 1987), pp. 32–45.Google Scholar

6 Stanko, Elizabeth A., Intimate Intrusions (London: Routledge & Kegan Paul, 1985) pp. 9, 11.Google Scholar

7 See Gilligan, , “In a Different Voice,” at p. 2Google Scholar:

The different voice I describe is characterized not by gender but by theme…. Its association with women… is not absolute, and the contrasts between male and female voices are presented here to highlight a distinction between two modes of thought and to focus a problem of interpretation rather than to represent a generalization about either sex.

See also “Feminist Discourse,” at pp. 47–48 (remarks of Carol Gilligan).

8 Much modern political theory does have a decidedly individualistic emphasis, whether its orientation leans to the right – e.g., Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974)Google Scholar – or to the left – e.g., Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971)Google Scholar; Ackerman, Bruce A., Social Justice in the Liberal State (New Haven: Yale University Press, 1980).Google Scholar Nonetheless, attention to the importance of community and ongoing networks of relationships is central to the work of countless important figures in the history of social and political thought, especially within the conservative tradition. Edmund Burke and Talcott Parsons are only two of the most obvious examples. Among more recent examples from the political left are Sandel, Michael J., Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982)Google Scholar and Kennedy, Duncan, “The Structure of Blackstone's Commentaries,” Buffalo Law Review, vol. 28, pp. 205 (1979).Google Scholar See also MacIntyre, Alasdair, After Virtue (Notre Dame: University of Notre Dame Press, 2d ed. 1984).Google Scholar

9 See text at note 33 below.

10 Gilligan, Carol, Langdale, S., Lyons, N., and Murphy, M., The Contribution of Women's Thought to Developmental Theory (Washington: National Institute of Education, 1982).Google Scholar I am grateful to my colleagues Albert W. Alschuler and Mary Becker for discussion of this and related studies.

11 Rothbart, Mary K., Hanley, Dean, and Albert, Marc, “Gender Differences in Moral Reasoning,” Sex Roles, vol. 15, nos. 11/12 (1986), p. 645.CrossRefGoogle Scholar

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15 George Fletcher forcefully raised this point when discussing my paper. See also his influential book Rethinking Criminal Law (Boston: Little, Brown, 1978).

16 For a useful discussion in the context of the Gilligan debate, see Blum, Lawrence A., “Gilligan and Kohlberg: Implications for Moral Theory,” Ethics, vol. 98 (April 1988), pp. 472–91.CrossRefGoogle Scholar For a feminist perspective, see Haraway, Donna, “Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective,” Feminist Studies, vol. 14, no. 3 (Fall 1988), p. 575.CrossRefGoogle Scholar

17 See Schulhofer, Stephen J., Book Review, California Law Review, vol. 68 (1980), p. 181.CrossRefGoogle Scholar Jeffrie Murphy suggested a more rigorous formulation of this approach at the conference: within contractarian premises, the Rawlsian methodology of “reflective equilibrium” implies that an enlargement of the community whose reflective intuitions count will likely change the analysis of what radically unsituated parties would accept behind the veil of ignorance.

18 Frieze, Irene Hanson, “Investigating the Causes and Consequences of Marital Rape,” Signs, vol. 8 (1983), p. 532CrossRefGoogle Scholar; Russell, Diana E. H., Rape in Marriage (New York: MacMillan, 1982).Google Scholar

19 Russell, Diana E. H., “The Incidence and Prevalence of Intrafamilial and Extrafamilial Sexual Abuse of Female Children,” Child Abuse and Neglect, vol. 7 (1983), p. 137.CrossRefGoogle ScholarPubMed The most recent review of the literature reports:

[P]revalance estimates for child sexual abuse rang[e] from 6 percent to 62 percent for females and from 3 percent to 31 percent for males. The lowest rates suggest that child sexual abuse is not an uncommon experience. The highest rates suggest a social problem of staggering dimensions. There are a variety of explanations for variations in estimated prevalance rates. Studies vary in the restrictiveness of their definitions of child sexual abuse, they vary in their sample selection strategies, and they vary substantially in methodology.

Gabarino, James, “The Incidence and Prevalence of Child Maltreatment,” in Family Violence (Crime and Justice: A Review of Research, vol. 11) ed. Lloyd, Ohlin and Michael, Tonry (Chicago: University of Chicago Press, 1989), pp. 219, 240.Google Scholar

20 A comparison of male and female perceptions in this area appears to be a fruitful issue for systematic research. I performed my own very unscientific survey among 75 first-year law students. Neither men nor women had homogeneous reactions to the Stanko quote. For example, among women 12 percent described it as largely false and another 24 percent as partly false. Yet 64 percent of the women described the Stanko view as largely or entirely true, while only 42 percent of the men did so. (The validity of the poll is clouded by the fact that it was taken some months after class discussion of feminist views on rape. Many of the respondents -especially male respondents – indicated that they now gave much more credence to the feminist perspective than they had before.)

21 Amir, Menachem, Patterns in Forcible Rape (Chicago: University of Chicago Press, 1971), p. 130.Google Scholar

22 Stanko herself makes a similar point. Stanko, , Intimate Intrusions, pp. 9–11.Google Scholar

23 In support of the propositions to be discussed in the paragraphs that follow, I have drawn primarily upon Model Penal Code, Proposed Official Draft (Philadelphia: American Law Institute, 1962); Radish, Sanford H. and Schulhofer, Stephen J., Criminal Law and Its Processes (Boston: Little, Brown, 5th ed. 1989)Google Scholar; LaFave, Wayne and Scott, Austin, Jr., Criminal Law (St Paul: West, 2nd ed. 1986).Google Scholar

24 For an excellent discussion of the “family” or community-oriented assumptions of continental Europe's non-adversarial systems of criminal procedure and a comparison with the more individualistic, rights-oriented, or “arm's length” orientation of adversarial procedure, see Damalka, Mirjan, “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure,” University of Pennsylvania Law Review, vol. 121 (1973), pp. 506, 563–84.CrossRefGoogle Scholar Further discussion of the contrast between these two organizing conceptions of procedure and their manifestation in different cultures can be found in Llewellyn, Karl, Jurisprudence (Chicago: University of Chicago Press, 1962), pp. 439–50Google Scholar; Griffiths, John, “Ideology in Criminal Procedure or a Third “Model” of the Criminal Process,” Yak Law Journal, vol. 79 (1970), p. 359.CrossRefGoogle Scholar

25 Juvenile justice and civil commitment regimes are perhaps the most obvious examples. See text at note 64 below.

26 See Schulhofer, Stephen J., “Just Punishment in an Imperfect World,” Michigan Law Review, vol. 87, pp. 1263, 1282–92 (May 1989).CrossRefGoogle Scholar

27 See, for example United States Sentencing Commission, Guidelines Manual §5K2.13 (1988), providing that diminished capacity may warrant a reduced sentence, but only if the situation involves (1) a non-violent offense, (2) the reduced mental capacity does not result from voluntary use of drugs or alcohol, and (3) the defendant's criminal history does not indicate a need for incarceration to protect the public.

28 The M'Naghten rule provides that to establish an insanity defense “it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” M'Naghten's Case, 8 Eng. Rep 718 (House of Lords, 1843). Illustrative of the recent trend back to the narrow M'Naghten approach, which requires complete impairment of cognition and excludes impairment of control as an independent basis for the defense, are United States v. Lyons, 731 F.2d 243 (5th Cir. 1984) and the statutory formulation adopted by Congress in 1984, 18 U.S.C. §20. It must be added that, as in other areas considered in this paper, actual enforcement attitudes of prosecutors and juries soften these requirements to some extent. Severely impaired capacity for self-control is probably often understood to reflect on a defendant's capacity to know (or fully “appreciate”) the wrongfulness of his conduct; truly complete impairment of cognition (if such a thing exists at all) is probably seldom required in practice.

29 See, e.g., Model Penal Code, §2.08.

30 The highly demanding character of the substantive rules seems largely inconsistent with the principle of keeping the severity of punishment proportional to moral fault. The reasons for this approach must therefore be located primarily in the criminal law's social protection function and, in particular, in the non-availability of alternative institutions to serve that function when “mental disease” is absent. See Schulhofer, “Just Punishment.”

31 There are several qualifications to the retreat requirement and other rules mentioned here. For example, about half the states have no retreat requirement at all; in others, the retreat requirement is generally inapplicable when the person resorting to self-defense is in her own home.

32 State v. Schroeder, 199 Neb. 822, 261 N.W.2d 759 (1978).

33 The mixture of rights-oriented and community-oriented principles in a body of doctrine such as criminal law raises larger questions about the explanatory power of Gilligan's paradigms in a legal setting. Similar problems have been mentioned in connection with the uncertain correlations between feminist culture and the allegedly female orientation of legal constructs over time and across different legal systems. See text at notes 24 and 25 above. An exploration of the relevance of the Gilligan hypothesis to law could profitably examine such comparisons in detail. In addition, it seems essential to consider the interpenetration of substantive doctrine, which generally (though not uniformly) is abstract and rights-oriented, with procedure, where plea bargaining and the jury system interject important elements of ad hoc, highly contextual decision-making.

34 Walker, Lenore E., “A Response to Elizabeth M. Schneider's Describing and Changing,” Women's Rights Law Reporter, vol. 9 (1983), p. 223.Google Scholar

35 Schneider, Elizabeth M., “Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering,” Women's Rights Law Reporter, vol. 9 (1983), p. 200.Google Scholar

36 Commenting on the situation of Hedda Nussbaum – a terribly abused woman whose husband Joel Steinberg was recently convicted of murdering their adopted daughter – Susan Brownmiller writes (“Madly in Love,” Ms., April 1989, pp. 56, 64):

Many of us old-warrior feminists… thought that Nussbaum should have been standing trial as well, for reckless endangerment of a child, at the least... Feminist analysis of the SteinbergNussbaum case must center on moral responsibility for the death of six-year-old Lisa. The battery of Hedda Nussbaum cannot be denied, but her complicity must also be acknowledged. The movement to aid battered women… must also cease to excuse every battered woman who engages in criminal behavior, with the argument that she is, after all, merely a victim of the patriarchy, socialized into her feminine passivity, brainwashed into robotry by an evil man. The point of feminism is to give women the courage to exercise free will, not to use the “brainwashed victim” excuse to explain away the behavior of a woman who surrenders her free will... [B]attery defines a sustained relationship over many years between two people. With rape there may be no exit. In battery the exit signs may be flashing, but a woman may still refuse to walk out the door... Hedda Nussbaum – white, middle class, with excellent editorial skills – chose to stay in her bondage with Joel.

37 Jahnke v. State, 682 P.2d 991 (Wyo. 1984) (concurring opinion).

38 ibid.

39 Walker, Lenore E., The Battered Woman Syndrome (New York: Springer, 1984), p. 203.Google Scholar

40 Ewing, Charles P., Battered Women Who Kill (Lexington: D.C Heath, 1987), p. 34.Google Scholar Ewing's sample, drawn from newspaper accounts, does not purport to be representative.

41 See, e.g., Straus, Murray A., Gelles, Richard J., and Steinmetz, Suzanne K., Behind Closed Doors (Newbury Park: Sage Publications, 1980), p. 32Google Scholar (28 percent of married couples report at least one instance of physical assault during their relationship, with 16 percent reporting one such instance within the past year). The empirical problems of estimation in this area are, of course, enormous. An excellent recent review of the literature reports similarly substantial figures; for example, a Kentucky survey found that 21 percent of the women respondents (and two-thirds of those recently separated or divorced) had been physically attacked by a male partner at least once. See Frieze, Irene Hanson and Browne, Angela, “Violence in Marriage,” in Family Violence (Crime and Justice: A Review of Research, vol. 11, pp. 163, 179.CrossRefGoogle Scholar

42 See “View of Abused Women is Changing, Some Say,” New York Times, Jan. 30, 1989, p. 7, coL 2.

43 Straus, Gelles, and Steinmetz (Behind Closed Doors) report that 31 percent of husbands and 25 percent of wives rated one spouse slapping the other as either “necessary,” “normal,” or “good” under some circumstances. Some of the more recent surveys show from 80–90 percent of respondents (male and female) indicating that it is “never okay” for a husband to slap his wife; yet a 1985 survey found 24 percent approval for a husband slapping a wife for having a sexual affair. See Frieze and Browne, “Violence in Marriage,” pp. 165–66.

44 Walker, , The Battered Woman Syndrome, p. 86.Google Scholar

45 See Kinports, Kit, “Defending Battered Women's Self-Defense Claims,” Oregon Law Review, vol. 67, no. 2 (1988), p. 393Google Scholar (arguing that the defendant's actions should be tested from the perspective of the “reasonable battered woman,” and that from this perspective the use of deadly force can be found necessary).

46 The latter strategy was followed, successfully, on remand in Kelly, one of the leading cases upholding the admissibility of testimony on battered spouse syndrome. See Schneider, “Describing and Changing,”p. 205 n. 59.

47 Walker, “Response.”

48 ibid.

49 E.g., State v. Norman, 366 S.E.2d 586 (N.C. App. 1988) (error for trial court to reject expert testimony on battered spouse syndrome in case of wife who shot sleeping spouse). Similarly, the New Republic recently reported a case in which Lenore Walker's expert testimony was admitted at trial in a contract killing case. There are also a number of important holdings to the contrary. The Norman decision itself was recently reversed on appeal to the state supreme court. State v. Norman, 324 N.C. 253,378 S.E.2d 8 (1989). See also State v. Stewan, 763 P.2d 572 (Kan. 1988) (error to give self-defense instruction where wife shot sleeping spouse); State v. Martin, 666 S.W.2d 895 (Mo. Ct. App. 1984) (not error to exclude Walker's expert testimony in a $10,000 contract killing case). For a helpful review of the many cases, see Kinports, “Defending Battered Women's Self-Defense Claims.”

50 See New York Times, “View of Abused Women.”

51 See Note, , “Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent,” Virginia Law Review, vol. 72 (1986), p. 619.Google Scholar

52 ibid., pp. 639–640 & n. 108.

53 See Kinports, , “Defending Battered Women's Self-Defense Claims,” p. 447Google Scholar:

[M]any battered women cannot substantiate their testimony about the abusive relationship. Indeed, because of their fear and shame, they may not have told anyone about the beatings or even sought medical treatment, or they may have tried to cover up the cause of their injuries.

54 Walker attempted to measure several independent variables in an effort to differentiate battered women from a partial control group consisting of formerly battered women who were no longer in battering relationships. She hypothesized that the former group would exhibit more learned helplessness than the latter and that the presence of learned helplessness would be signaled by a psychological profile of strong fear, anxiety, and depression (and relatively weaker indications of anger, disgust, and hostility). Walker claims the results of this analysis were “compatible with learned helplessness theory,” Walker, , The Battered Woman Syndrome, p. 89Google Scholar, but in fact differences between the currently battered group (which ostensibly was suffering from learned helplessness) and the control group were small and not consistently in the predicted direction (see pp. 87–89). Nor does Walker analyze the differences for statistical significance.

55 Consider State v. Kelly, 478 A.2d 364, 378 (1984):

After hearing the expert, instead of saying Gladys Kelly could not have been beaten up so badly for if she had, she certainly would have left, the jury could conclude that her failure to leave was very much part and parcel of her life as a battered wife. The jury could conclude that instead of casting doubt on the accuracy of her testimony about the severity and frequency of prior beatings, her failure to leave actually reinforced her credibility.

56 MacKinnon, Catharine A., “Toward a Feminist Jurisprudence” (Book Review), Stanford Law Review, vol. 34 (1982), pp. 703, 734.CrossRefGoogle Scholar

57 Schneider, “Describing and Changing.”

58 E.g., Littleton, Christine, “Women's Experience and the Problems of Transition: New Perspectives on Battered Women,” University of Chicago Law Forum, vol. 1989 (forthcoming)Google Scholar; Crocker, Phyllis L., “The Meaning of Equality for Battered Women Who Kill Men in Self-Defense,” Harvard Women's Law Journal, vol. 8 (1985), p. 121.Google Scholar

59 See Littleton, “Women's Experience.”

60 Before his now-famous confrontation with several youths on a subway, Goetz had been mugged, had seen the legal system fail to prosecute his assailant, and had been denied a license to carry a gun. See Alschuler, Albert W., “Mediation With a Mugger,” Harvard Law Review, vol. 99 (1986), p. 1808.CrossRefGoogle Scholar No doubt, too, Goetz had no practicable way to escape what he saw as an ever-present threat; unable to afford the regular use of a taxi, he had no choice but to use the streets and subways of New York.

61 See, e.g., Werner v. State, 711 S.W.2d 639 (Tex. Crim. App. 1986) (upholding the exclusion of evidence suggesting that defendant, the son of a concentration camp survivor, suffered from “Holocaust Syndrome”); Jahnke v. State, 682 P.2d 991 (Wyo. 1984) (upholding the exclusion of expert testimony on battered child syndrome). With respect to post-traumatic stress disorder, especially the so-called “Vietnam Vets Syndrome,” see cases discussed in Kadish, and Schulhofer, , Criminal Law and Its Processes, pp. 1012–13.Google Scholar

62 Wootton, Barbara, Crime and the Criminal Law (London: Stevens & Co., 1963).Google Scholar Lady Wootton proposed that the criminal process determine, at the guilt-determination stage, only whether the accused had done the proscribed act or physically caused the proscribed harm. If so, dispositional authorities would determine the appropriate treatment in light of the offender's mental and emotional condition, including his mens rea at the time of the offense.

63 See Hart, H.L.A., Punishment and Responsibility (Oxford: Oxford University Press, 1968), pp. 158–185Google Scholar; Kadish, Sanford H., “The Decline of Innocence,” Cambridge Law Journal, vol. 26 (1968), p. 273CrossRefGoogle Scholar; Hart, H.L.A., “Book Review of Wootton, Crime and the Criminal Law” Yale Law Journal, vol. 74 (1965), p. 1325.CrossRefGoogle Scholar

64 See Allen, Francis A., The Decline of the Rehabilitative Ideal (New Haven: Yale University Press, 1981)Google Scholar; Schulhofer, Stephen J., “The Future of the Adversary System,” Justice Quarterly, vol. 3 (1986), pp. 83, 91–92.CrossRefGoogle Scholar

65 MacKinnon, “Toward a Feminist Jurisprudence.”

66 State v. Wanrow, 81 Wash.2d 221, 559 P.2d 548 (1977).

67 Fond, John La, “The Case for Liberalizing the Use of Deadly Force in Self-Defense,” Puget Sound Law Review, vol. 6 (1983), pp. 237, 280.Google Scholar

68 Ewing, , Battered Women Who Kill, p. 79.Google Scholar

69 For a telling critique of the unworkable vagueness of the Ewing proposal, see Kinports, , “Defending Battered Women's Self-Defense Claims,” pp. 458–60.Google Scholar

70 As argued, for example, in Kinports, ibid.

71 As argued in MacKinnon, “Toward a Feminist Jurisprudence,” and accepted by the court in State v. Wanrow, 81 Wash.2d 221, 559 P.2d 548 (1977).

72 See discussion in text at note 32 above.

73 See Frieze, and Browne, , “Violence in Marriage,” p. 205.Google Scholar

74 Cf. United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984) (error to refuse duress defense where defendant claimed that corrupt Colombian and Panamanian police would afford him no protection against threats of drug dealers).

75 Judge Bazelon used these terms to describe a ghetto youth who claimed to lack the capacity for self-control because of “rotten social background.” United States v. Alexander, 471 F.2d 923 (D.C Cir. 1972).

76 See Frieze, and Browne, , “Violence in Marriage,” p. 206–7.Google Scholar

77 Model Penal Code, §3.09.

78 437 N.E. 2d 224 (Mass. 1982).

79 E.g., Commonwealth v. Lefkowitz, 481 N.E.2d 277 (1985).

80 E.g, People v. Mayberry, 542 P.2d 1337 (Cal. 1975) (negligence); Commonwealth v. Williams, 439 A.2d 765 (Pa. Super. 1982) (strict liability).

81 See Wells, Celia, “Swatting the Subjectivist Bug”, Criminal Law Review, vol. 1982, p. 209.Google Scholar

82 Professor Estrich proposes a negligence standard but does not address questions of grading and punishment. Estrich, Susan, Real Rape (Cambridge: Harvard University Press, 1987), pp. 97–98.Google Scholar

83 State v. Alston, 312 S.E.2d 470 (N.C 1984). Some feminists agree that a woman in this situation can reasonably be expected to express her disinclination openly and firmly. E.g. (Berger, Vivian, “Not So Simple Rape,” Criminal Justice Ethics, vol. 7 (Winter/Spring 1988), pp. 69, 75.CrossRefGoogle Scholar

84 Wash. Code Ann. §9A.010(6) (1981).

85 Compare Henderson, Lynn, “What Makes Rape a Crime,” Berkeley Women's Law Journal, vol. 3 (1988), pp. 193, 216.Google Scholar Her analysis parallels mine in focusing on the content of the “consent” construct but diverges in arguing at the same time for a strict liability standard.

86 Estrich, , Real Rape, 103.Google Scholar

87 4 U.S.C.M.A. 437 (1954).

88 Mathews v. Superior Court, 119 Cal.App.3d 309, 173 Ca.Rptr. 820 (1981).

89 Compare United States v. Condolon, 600 F.2d 7 (4th Cir. 1979), upholding the wire fraud conviction of a man who posed as a talent agent and falsely represented that he could place women in modeling and acting jobs in return for sexual favors.

90 Boro v. Superior Court, 163 Cal.App.3d 1224, 210 Cal.Rptr. 122 (1985).

91 Estrich discusses two cases involving elements of both fraud and fears for physical safety. In one, a man posing as a talent agent lured a high school student to his “temporary studio” with the prospect of helping place her as a model. In the other, a man who posed as a psychologist conducting a sociological experiment lured a young woman to his “office.” Estrich argues that apart from the element of intimidation presented by the isolated setting of both incidents, the misrepresentation alone should vitiate consent: “[W]e [should] prohibit fraud to secure sex to the same extent that we prohibit fraud to secure money.” Estrich, Susan, “Rape,” Yale Law Journal, vol. 95 (May 1986), pp. 1087, 1120.CrossRefGoogle Scholar Similarly, though her book does not discuss fraud problems as such, she asserts there that “[t]he 'force' or 'coercion' that negates consent ought to be defined to include extortionate threats and misrepresentations of material fact.” Estrich, , Real Rape, pp. 102–3.Google Scholar For sharp criticism of Estrich's position on these points, see Berger, , “Not So Simple Rape,” pp. 76–77.Google Scholar

92 See, e.g., N.Y. Civ. Rts. Law §80-a. This provision, formerly Gvil Practice Act §§61-b, d, was enacted in 1936 in response to concern that young women without financial prospects were using the threat of a suit for seduction as a means of legalized blackmail.

As stated in §61-a of the original legislation:

The remedies heretofore provided by law for the enforcement of actions based upon alleged alienation of affections, criminal conversation, seduction and breach of contract to marry, having been subjected to grave abuses, causing extreme annoyance, embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free of any wrongdoing, who were merely the victims of circumstances, and such remedies having been exercised by unscrupulous persons for their unjust enrichment, and such remedies having furnished vehicles for the commission or attempted commission of crime and in many cases having resulted in the perpetration of frauds, it is hereby declared as the public policy of the state that the best interests of the people of the state will be served by the abolition of such remedies.

See Aadland v. Flynn, 27 Misc. 2d 833, 837 (N.Y. Sup.Ct, 1961).

Note how the threat that these suits posed to the reputation and resources of propertied gentlemen preoccupied the legislature. The severe harm that breach of promise could cause to young women (who, given the mores of the time, may have been deprived of the prospect of contracting a “respectable” marriage) seems not to have weighed heavily in the minds of the legislators.

Both civil and criminal suits for seduction survive to this day in a few states, but the frequency of enforcement appears to vary from rare to nonexistent. See “Seduction,” in Corpus Juris Secundum, vol. 79 (1952), p. 953ff.; ibid. (1988 Supp.).