Sep 9, 2020 Trevor Gardner
Good citizenship and eager participation in police investigations would seem to fit hand-in-glove. The good citizen helps to enforce the criminal law, particularly if the physical safety of the citizenry is thought to be at risk. But as Bennett Capers argues in his essay, Criminal Procedure and the Good Citizen, this version of the good citizen—crafted and propagated by our nation’s highest court—falls into direct tension with the activist principles animating the Civil Rights Movement. For instance, Martin Luther King, Jr., insisted that the citizen not suffer from a cultural condition Capers describes as “too much respect for majoritarian law.” (P. 704.) The Movement, led by persons we now consider some of the greatest citizens in our nation’s history, rejected the notion of reflexive deference to majoritarian law and its enforcement.
During the Civil Rights Movement, the good “civil rights” citizen was inclined to assert her rights and to fight to extend them. After accounting for instances in which the Supreme Court, in its Fourth Amendment cases, admonished citizens to forgo their civil rights in the interest of effective police investigation, Capers poses a philosophical question. In the distinctive space of police-administered criminal procedure, what is the good citizen’s civic duty?
Capers details how, over the past several decades, the Court has pushed a narrative of good citizenship that is based upon deference to police, even—and perhaps especially—when the police officer formally requests that the citizen relinquish her civil rights. Among several examples, Capers discusses U.S. v. Drayton, a Supreme Court case addressing whether the defendant’s consent to a police search represented a voluntary (rather than coerced) waiver of his Fourth Amendment rights. The search in Drayton took place on a coach bus scheduled to travel from Ft. Lauderdale, Florida, to Detroit, Michigan. As three police officers entered the bus, the bus driver immediately exited the vehicle (“yielding his custody of the bus,” according to a dissenting Justice Souter). One officer knelt on the driver’s seat; another walked to the back of the bus and faced forward. A third walked from the front of the bus to the back, speaking with each passenger about possession of drugs and weapons. When the questioning officer reached Clifton Brown, Jr., Drayton’s travel partner, he asked Brown if Brown had baggage on the bus. The officer then asked to search Brown’s baggage. Finding no contraband, the officer asked, finally, if he could pat down both Brown and Drayton. Both ostensibly consented and the officer found cocaine taped “between their shorts.” In explaining that the investigating police had not created a coercive atmosphere on the bus, Justice Kennedy, writing for the majority, offered the following: “[B]us passengers answer officers’ questions and otherwise cooperate not because of coercion but because the passengers know that their participation enhances their own safety and the safety of those around them.”
Capers takes a moment to imagine himself, an African American man, as a passenger under scrutiny on the Drayton bus. He questions whether he would have permitted police search of his belongings and his person, waiving his Fourth Amendment right against “unreasonable” search and seizure. An African American passenger might choose to obstruct the bus investigation for a dozen reasons, not the least of which would likely be the privacy and dignity the police institution has casually stolen from African Americans since the institution’s inception. Recognition of this history would seem to demand an alternative conception of good citizenship, but one that comes with the risk of heightened police scrutiny. Contemplating such risk, Capers asks, “[A]m I the suspect on the bus being asked if I would mind consenting to a search, or am I one of the ‘good citizens’ around him…who were disciplined into opening their bags by example and who deployed the Court-endorsed psychology of group pressure, ‘encouraging consent’”?
From the Court’s vantage point, there seems to be no meaningful value in playing the role of conscientious objector to a warrantless police search. The often-arbitrary quality of police searches and, relatedly, their targeting of racial minorities, has not chastened the Court in its imagining of civic duty in criminal procedure. Capers does not beat around the bush in clarifying the implications of the Court’s remarkably shallow conception of civic responsibility: “[T]here is something deeply problematic about citizenship talk that encourages citizens to surrender to constitutional protections and to serve as willing posse comitatus to a criminal justice system known for overcriminalization, overincarceration, and unequal policing.” (P. 670.) Capers observes that given the Court’s race-blind conception of good citizenship in criminal procedure it is no wonder that police view rights assertion in response to a police request for rights waiver with incredulity and suspicion. (P. 679.)
After dissecting the expressive quality of the Court’s “citizenship talk,” Capers proposes a normative project: the formulation of a model of good citizenship in criminal procedure that is informed by the African American experience. However, the project bumps up against sympathetic portrayals in recent scholarship of elite law enforcement actors—minorities, no less—who claim a “civil rights” approach to criminal procedure in their implementation of rights-ambivalent policing policies. In the book chapter, “What Would Martin Luther King, Jr., Say?” James Forman reports that in a speech on MLK’s birthday, then Attorney General for the District of Columbia, Eric Holder, announced a stop-and-search policy that he would soon implement via the city’s traffic code. This policy, part of a larger effort to “break our young people’s fascination with guns,” was a civil rights project that openly disregarded African American civil rights.
Forman treads lightly in expressing the shortcomings of Holder’s racial profiling fiasco. He characterizes Holder’s stop-and-search policy as misguided, but in a practical sense given that the policy’s benefits were inevitably coupled with tangible costs, namely elevated rates of African American arrest, conviction, and incarceration. But this sort of cost-benefit analysis lets Holder off the hook. It sets aside his brazen attempt to turn the ethos of the Civil Rights Movement on its head. In identifying and sharply criticizing the Court’s attempt to pit regard for civil rights against notions of good citizenship, Capers essay should be read as a sorely needed rebuttal.
Even in this moment of national soul searching regarding the appropriate role of police in society, the notion of a healthy and enduring skepticism of the police institution may strike many readers as plainly radical. What of community policing, and normative modeling of police-community relations? Such projects certainly have their place. However, their consideration should be steeped in consideration of the national public’s historical skepticism toward police, and insulated from the police infatuation evidenced in American culture over the past several decades. For much of American history, the national public understood skepticism of the police institution—irrespective of penal outcomes—to be a necessary bulwark against government power run amok. Here, we might consider the modern libertarian’s skepticism toward the Internal Revenue Service as a helpful analog, while also bearing in mind that this line of state scrutiny has been subject to far less criticism.
Given the nation’s rich history of skepticism toward the police institution and its ongoing love affair with freedom, one is left to wonder how and why Americans became police enthusiasts. How did a nation philosophically centered on the principle of liberty come to adore the lone government agency holding a monopoly on the legitimate use of force?
May 25, 2011 Erin Murphy
I. Bennett Capers
, Real Rape Too, 99
Calif. L. Rev. (forthcoming, 2011), available at
SSRN.
I had just finished teaching the rape unit to my first year criminal law class when my colleague Rachel Barkow brought I. Bennett Capers’ Real Rape Too to my attention. I know that opinions about whether and how to teach rape vary dramatically amongst faculty members, but for several reasons I have always been committed to teaching it and to encouraging candid classroom discussions. However, one of the interesting things about teaching a topic about which social conventions are still in flux is that increasingly I find myself unintentionally steering the class to the debates of my own youth. Having graduated in the early to mid-nineties, I came of age in the twilight of “no means no” and Take Back the Night. Date rape had gained recognition as “real rape,” but “roofies” were sufficiently unfamiliar that President Clinton had not yet signed the first federal date rape drug law. Understandings about sexuality, too, were still evolving. TV’s “Friends” was considered a pathbreaking show because it depicted a group of male and female friends living together and hanging out in a (mostly platonic) way that felt very familiar to my generation but at times baffled our parents. Gay pride was a common feature on campuses, but few of my peers had been openly out in high school and a “don’t ask, don’t tell” military policy was still considered progressive. And when Ellen DeGeneres came out on her show in 1997, it was still a big media event.
Of course, the students I teach now are already of a different era. They grew up hearing public discussions about the President receiving oral sex from an intern in the oval office, learned that celebrity can be reached by the “leak” of a sex tape, and laughed at bawdy gay sex jokes on “Will and Grace.” They can have “it’s complicated” Facebook statuses, personal experience with “sexting,” and be active in gay marriage debates. And it doesn’t stop there: in the coming years, I’ll encounter a generation that as children flipped through Ellen and Portia’s beautiful wedding photos on the cover of People magazine, heard Senator Scott Brown publicly reveal his childhood sexual abuse, watched Kurt and Blaine’s big, very real kiss on “Glee,” and, if novelist Gary Shteyngart is to be believed, unselfconsciously wear transparent pants.
So what do these changes mean for teaching rape law? In my experience, it means that I find myself increasingly dissatisfied with the hetero-normativity of the debates that I lead in class, and that increasingly my students are too. I have noticed that I tend to set up discussions of rape that inevitably fall into the same pattern: I acknowledge the existence of other kinds of rape, but tell students that we’ll focus on male-female rape given its prevalence. Then I proceed to replicate a whole range of gendered assumptions about rape: that fault lines occur because, consistent with cultural clues, men pursue aggressively and women demur; explore whether women’s failures to resist or vocalize opposition are byproducts of women’s socialization; talk about power; elaborate hypotheticals with slimy bosses and pushy boyfriends, and so on.
Yet as each year goes by, and each class impresses me with the diverse and divergent range of expectations and experiences that students bring to the discussion, I find my assumptions fail to speak to this generation’s expectations and experiences of both wanted and unwanted sex. By and large, my students start from places that I never took for granted: that women are sexual beings with their own desires, that what one wears or how one acts might suggest their sexual availability but does not decide it, and that “nice” girls (and boys) do all sorts of things. They seem more willing to view men not just as predators out to seduce in any way possible, but as possessing their own complicated emotions and sexual identities. And they see both women and men as operating within a larger theater of sexual expectations: a culture in which one night stands aren’t necessarily freighted with moral judgment, exploration is less risqué, same-sex relationships can be as “vanilla” or outré as heterosexual ones, and there exists greater fluidity in gender roles. I’m not saying that they are in a whole new world from the one that I came of age in, or even that there is a unitary sentiment of an identifiable kind, but there are significant differences between many of their experiences and mine.
Enter I. Bennett Capers’s extraordinary new article, Real Rape Too. His goal, he writes, is “to bring male rape out of the footnote and into the text.” He notes that “[R]ape law has been gendered for too long. Originally, it was gendered in a way that tilted the scales to benefit men: men as fathers, men as husbands, men as rapists. Feminists were right to point out the sexism inherent in traditional rape laws in this country. Though many . . . were wrong to view rape solely as a mechanism for male domination of women….[T]he real problem is this: in arguing for reform, many feminist scholars have inadvertently legitimized and contributed to the very gender distinctions of which they have been so critical. In response to one form of subordination, they have entrenched another.”
Capers goes on to explore the phenomenon of male-on-male rape. As might be expected, he devotes significant attention to the problem of prison rape and the ways in which it is either ignored or else presented as a joke, a threat, or a deserved extralegal punishment. But, most importantly to my mind, he also discusses male rape outside of the prison context, deftly illustrating the ways in which we as a society try to avoid calling male rape “rape,” by instead labeling it “police brutality” (Abner Louima), or “hate crimes” propelled by homophobia (the recent incidents in the Bronx), or “hazing” (fraternities, military). Indeed, Capers criticizes the law for being candid about the possibility of male rape in only two contexts: to provide a provocation defense to killers rebuffing homosexual advances, and to tacitly approve of using the threat of prison rape as a coercive tool for law enforcement agents and prosecutors seeking to extract confessions or pleas.
To be clear, Capers’s claim is not that male-on-male rape is the dominant form of sexual violence in our society (although he does cite statistics that show it to be more prevalent than suggested by its footnote status, especially if one considers the strong likelihood that male rapes are equally if not more underreported than their male-female counterparts.) Rather, his point is to call attention to the ways in which acknowledging male rape might help elucidate understandings of rape in general. To give just a few examples– he cites research that suggests that some male rape victims respond with the same kinds of “frozen helplessness” as do some female victims. He underscores the racialized rhetoric of prison rape, which calls to mind both the historical disregard of the rape of black women as well as the specter of white women raped by black men. And just as female rape victims worry about coming forward, fearing stigma and criticism for “asking for it,” so too are male victims reluctant to report out of concern of being labeled gay (whether correctly or incorrectly).
Capers closes by suggesting some immediate reforms: better policing and prosecution, better data collection, and even consideration of the risk of prison rape in sentencing. But the real insights of the article are in his exhortations to rethink rape law without reading out the experiences of male victims. For instance, Capers notes that most male-male rapists identify as heterosexual, which seems to affirm the longstanding feminist claim that rape is a crime of violence and power, not simple sexual desire. Likewise, concepts like force, resistance, and nonconsent become less about privileging the experiences of women than about understanding the nature of unwanted sexual intimacy. Consider the feminist project of defining rape to include “softer” forms of coercive power. In an environment that encourages women’s sexual aggression, not to mention economic and professional power, isn’t it only natural that we might expect our students to sense some dissonance in discussions that frame the dynamic as though it were impossible for men to feel trapped by the same kinds of pressures? And if we don’t acknowledge that possibility, isn’t it only natural for men to think that if it’s not rape when they engage in sexual activity to appease a boss or avoid the ridicule of peers or the disdain of a partner, then why should it be when women do the same?
In this respect, I was reminded of a lunch that I recently attended, at which participants intimately familiar with the issue were talking about the flak that (now Justice) Ruth Bader Ginsburg received from gender-equality advocates for occasionally representing men’s equality interests (for example, a widower’s equal right to receive social security benefits). The point was that what was not obvious to many feminists then is perhaps more obvious now: that there will be no true equality for women without fundamentally rethinking what it means to be a man. Whether in the domestic, professional, or sexual sphere, redefining the feminine is itself not enough; we must also redefine the masculine. With regard to the law of rape, then, Capers’s Real Rape Too is exceedingly welcome, if long overdue.
Cite as: Erin Murphy,
Rethinking Rape, JOTWELL
(May 25, 2011) (reviewing I. Bennett Capers
, Real Rape Too, 99
Calif. L. Rev. (forthcoming, 2011), available at SSRN),
https://crim.jotwell.com/rethinking-rape/.
