Doug Berman is wondering where is the feminist reaction to the decision in Kennedy v. Louisiana:
I am disappointed that folks at Feminist Law Professors and other prominent bloggers concerned about mysogny have not yet provided a gendered perspective on the Supreme Court's Kennedy ruling. Rape is a gendered crime, and the Supreme Court's 1977 Coker opinion incorporates lots of language and themes that reflect the antiquated gendered view of the nine old men who were on the Court at that time. (When I teach these topics, the women in my class are uniformly offended by some of the language in Coker that is quite dismissive of the harms suffered by rape victims.)
Justice Kennedy's opinion for the Court in Kennedy uses language that is much more sensitive to the harms of rape. Nevertheless, the ruling still essential embraces the fundamentals of Coker. And, better language notwithstanding, the ruling in Kennedy asserts that an evolved moral society does not view even the worst forms of rape to be as tragic as many killings, and it concludes that states are constitutionally misguided when seeking to treat the most horrible rapes as seriously as some horrible killings.
Disappointingly, Justice Ginsburg, the only woman on the Court and one with a long record of feminist concern, did not follow-up her seemingly gendered questions at oral argument with an opinion in Kennedy. Consequently, I am eager to know whether my own feminist leanings are misguided when I worry that the Kennedy ruling reflects a kind of implict or unconscious sexism.
I too am disappointed that Justice Ginsburg didn't write separately. Ginsburg, while she was a practicing attorney, authored the ACLU amicus brief in Coker. That brief made a powerful feminist argument for the the Court striking down the death penalty for rape. While the Coker court did strike down the death penalty statute, it did not import the feminist rationales advocated by Ginsburg. So, I was expecting that Ginsburg might take the opportunity to correct that historical oversight with a concurring opinion in Kennedy v. Louisiana. Unfortunately, she simply joined Justice Kennedy's opinion.
So, what is a feminist to make of the rhetoric and outcome of the court's opinion striking down the capital child rape statute? I'm not too sure. In my article about the Louisiana statute, I took a feminist perspective and argued that capital rape statutes for children and adults are based upon patriarchal rhetoric and assumptions. This was largely because equating death and rape carries a series of pernicious signals that basically mirror the Victorian notion that it is better to be dead than raped.
However, my conclusions certainly do not mean that Coker doesn't have some sexist rhetoric. And the recent decision in Kennedy v. Louisiana may carry some patriarchal baggage as well. However, nothing in my first couple of readings really sticks out. Feminism doesn't require the notion that rape is a crime punishable by death (or castration - I'm not sure who Althouse is referring to in her post). And a lot of work by feminist rape survivors has been to help victims realize that the pain they have suffered can be overcome. It's a complicated issue with no easy answers. Like Berman, I would be interested to hear any feminist views that disagree. Already, one prominent rape survivor blogger has chipped with an interesting post in support of the decision. I expect that reaction will be the more common one among feminists.