18 Harv. Women’s L.J. 265

LENGTH: 14591 words


BIO: * J.D., Harvard Law School, 1994; M.A., University of California at Berkeley, 1991; A.B., Harvard-Radcliffe, 1989. I am deeply indebted to Richard D. Parker, my adviser at Harvard Law School, for encouraging me to publish this Article and for his thoughtful guidance. I would also like to acknowledge the helpful comments of Duncan Kennedy and Charles Nesson. Special thanks to David Kahn for his insightful comments and to Rebecca Hollander-Blumoff and Jennifer Hopeman for their helpful criticism and patience during the editing process. This Article is dedicated to my parents, Helena and Gerd Binder, and to David Kahn.


… Images of the victim’s physical beauty and the male’s bestiality pervade legal descriptions of violent crimes against women. … This non-linear relationship between victim attractiveness and perceptions of culpability in the rape context contrasts with the more straight-forward results in non-sexual crimes, a contrast which can be attributed at least in part to the confluence of sexuality and violence in the crime of rape. … Sexual difference, and hence sexual attraction, charges this sympathy, which locates the female victim in the realm of the familiar (beautiful woman, wife, mother), yet different (sexually attractive female, object of desire). … Desire by the aggressor for the attractive victim is a crucial component in the beauty-beast paradigm of violent rape. … The listeners implicitly ask themselves: Was she really raped, or did she ask for it? This question reduces itself to a simpler one: Does this narrative resonate with traditional notions of sexual violation? All too frequently, the answer in the simple rape context is a resounding “no.” … Both Roundtree and Rusk remind us that what we find most compelling is a story of a beauty violated by a beast, and that simple rape frequently does not fit into this preset scenario of sexual violation. …


Images of the victim’s physical beauty and the male’s bestiality pervade legal descriptions of violent crimes against women. This preoccupation is evident at all stages of the judicial process, from arguments by attorneys at trial and sentencing to appellate opinions by judges who have never even met the victim. In judicial narratives of rape, the prevalence of images of beautiful women and bestial men reflects a larger cultural fascination with beauty, violence, and sexuality: “Laws which regulate and influence women are . . . grounded in nonlegal traditions, systems, and passions.” The imagery of beauty and bestiality reinforces dominant assumptions about sexuality, and simultaneously shapes how onlookers perceive and attribute blame in a particular rape case. What purposes do descriptions of rape victims as beautiful or attractive serve? What do such descriptions tell us about the victim, and about ourselves? One way to address these questions is to look to the construction of facts and narratives in rape cases and to the role of imagination in imbuing these narratives with moral meaning. Somewhere between literary and legal analysis, this approach will engage in “literary anthropology,” exploring the tension between what judicial opinions profess to hold and the images they unreflectively invoke to create their narratives. The literary component of this approach lies in its focus on appellate opinions as texts rather than expositions of the current law of rape. The anthropological component, in turn, describes what this language reveals about the broader cultural assumptions at work in the context of violent crimes against women. Like the interpretive critique described by Robin West, literary anthropology “is a lot like shining a light on darkness, or proving a negative — it involves looking at what lies between the images of legalism, instead of looking directly at legalism.” Such an analysis depends in large part on the scripts by which individuals self-consciously lead their lives and the mythologies that render these scripts meaningful. Scripts are cultural and sociological forms of discourse and behavior of which members of a particular culture are aware and to which they adhere; they govern human behavior by categorizing and controlling it. Mythologies explain this behavior in a way that converts values to facts, historical realities to natural ones, and motives to reasons. Any particular mythology, and its accompanying imagery, constrains as well as liberates; it determines not just the form in which one expresses emotions, but also the substance of these emotions. Both scripts and mythologies derive their power over human behavior from their ability to persuade, to arouse emotions in predictable ways, and to make the contingent appear inevitable. In the context of rape, beauty-beast imagery gives form to popular outrage at violent sexual crimes. At the same time, beauty-beast imagery thrives on racial and gender tensions within society at large, tensions which it exploits and reinforces. Inherently conservative, it rewards and reinforces the familiar, reflecting a cultural capacity to feel sympathy for the victim of aggravated rape and a cultural skepticism toward women’s experience of simple rape.

I. BEAUTY AND THE BEAST: MYTHOLOGIES IN NARRATIVES OF VIOLENT RAPE [T]he death of a beautiful woman is, unquestionably, the most poetical topic in the world. . . . Edgar Allan Poe 

 [W]hat pornography is really about, ultimately, isn’t sex but death. Susan Sontag 

 A beautiful woman evokes many responses from those around her, from envy to desire, animosity to adulation. These varied responses are particularly significant when the victim of a violent crime is described as “beautiful” or “sexy” or “attractive.” A beautiful woman violated and brutally killed by a stranger is a different story entirely from a beautiful woman, a “tease” perhaps, out on a date with a man she later claims raped her. The moral valence imputed to beauty is context-specific; in each case, however, the mere fact of the woman’s “beauty” intensifies the emotions, be they pity or rage, which her circumstances evoke in those around her.  In analyzing references to physical beauty in appellate rape opinions, I pose two questions. First, what is the range of possible significance for the victim’s “attractiveness” or “beauty” in the context of a rape trial — and how do the relevance and effect of this beauty depend upon the party observing and articulating it? Second, precisely what characteristics make the victim “attractive,” and how do they play into larger issues of racial and gender difference? The first question is largely a matter of effect. The second question, by far the more problematic, concerns meaning. It calls for an evaluation of how the victim’s attractiveness is constructed by the observer and points to a mutually dependent relationship between her attractiveness and her status as victim. The following analysis will show that frequent allusions to the victim’s attractiveness in appellate sexual assault cases represent an unwitting eroticization of rape. By constructing a notion of attractiveness that depends upon the victim’s having attracted violation, the courts belie the contemporary cliche that rape is a crime of violence and not of sex. 10 My analysis falls into three parts: (1) the different valences of beauty in the violent rape or rape-murder context; (2) the significance of courts’ and prosecutors’ references to rape defendants as “beasts,” “brutes,” “animals,” or “predators”; and (3) the creation, and the effects, of a beauty-beast mythology as applied to violent rape.