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Friday, June 10, 2011

Hetero-Normativity in the Rape Law Canon

The Crim Prof list serve has been having a lively discussion about the Ohio Supreme Court's recent decision in a juvenile matter that the Ohio statutory rape law is unconstitutional as applied to children under 13.  The Court reasoned that, in situations involving kids under 13, the statute violated due process because it permitted prosecutors to determine which child was the victim and which the aggressor.  The Ohio case involved a 13-year-old and an 11-year-old, both boys.  I wonder if the Court would have seen the case in the same way if the 11-year-old had been a girl?  This got me thinking about an excellent recent post by Erin Murphy at Jotwell, discussing Bennett Capers' new article Real Rape Too and criticizing the hetero-normativity of the rape law canon that we currently teach in the typical criminal law course. 

Murphy writes that both she and her students increasingly take issue with the hetero-normativity of the rape law material that we typically teach.  She commends Capers' article for attempting to make male rape victims visible.  Murphy says that she tells her students that she focuses on male-female rape because such charges make up the overwhelming number of cases in the criminal justice system.  I tell my students that the current canon is hetero-normative, but that we are reading cases (and article excerpts) that tell a story of a feminist law reform effort in the final decades of the last century.  One of our jobs is to understand that law reform effort; another to critique it.  Has it gone too far, or not far enough?  I am interested in hearing from others who teach rape law.  Do you address the hetero-normativity of the current materials?  Do you supplement with other materials that engage male victimization or same-sex situations?  And what's your take on the recent Ohio decision?

Posted by GiovannaShay on June 10, 2011 at 06:23 AM | Permalink


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I completely agree that the survey courses require us to make choices about coverage. I think that flagging the issue, as you do, is useful, because it reminds students that the syllabus does not describe the universe of cases. Thanks, Orin.

Posted by: Giovanna Shay | Jun 10, 2011 5:23:13 PM

Thanks for the response.

I guess I'm not sure how not covering a topic in a 1L survey course "renders it invisible" or creates the impression it doesn't exist. 1L survey courses are extremely impressionistic: They just touch the surface of the problems they address, and I think students realize that. For example, I know profs who only teach homicide crimes. That's the only offense they cover. But I don't think that renders invisible theft crimes, or robbery, or burglary. Students know these crimes exist even if they are not covered in class.

In terms of teaching these materials, I generally do two things. First, I assign materials from outside of class that introduce a few hypotheticals that involve same-sex unwanted seconduct. Second, I ask students how their views of the cases -- or their views of the legal issue -- would be different if the case were a same-sex rape case instead of an opposite-sex rape case. It's not at all a focus of the discussion, but I think it's helpful to flag the issue given that the same legal test is going to apply to all of the different scenarios.

Posted by: Orin Kerr | Jun 10, 2011 5:17:05 PM

I think this is the definition that I have in mind, Orin. To the extent that the typical casebook materials focus exclusively on opposite-sex charges and relationships, they render invisible gay sex and relationships, and leave the (mis)impression that there is no intimate partner violence in same-sex relationships. The Capers article also makes the point that gender stereotypes about masculinity can obscure the fact that men can be sexual assault victims too.

Posted by: Giovanna Shay | Jun 10, 2011 4:39:58 PM

I'm not sure I understand what "hetero-normative" means in this context. Wikipedia says:

Heteronormativity is any of a set of lifestyle norms that hold that people fall into distinct and complementary genders (man and woman) with natural roles in life. It also holds that heterosexuality is the normal sexual orientation, and states that sexual and marital relations are most (or only) fitting between a man and a woman. Consequently, a "heteronormative" view is one that involves alignment of biological sex, sexuality, gender identity, and gender roles.

If that's the definition, then I'm not sure it's "hetero-normative" to focus on male-on-female rape in a 1L law school class. Or did you have a different definition in mind?

Posted by: Orin Kerr | Jun 10, 2011 1:42:04 PM

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