The Disciplinary Function of Rape

American Bar Foundation
Review: The Disciplinary Function of Rape's Representation: Lessons from the Kennedy
Smith and Tyson Trials
Author(s): Jody Freeman
Review by: Jody Freeman
Source: Law & Social Inquiry, Vol. 18, No. 3 (Summer, 1993), pp. 517-546
Published by: Wiley on behalf of the American Bar Foundation
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The Disciplinary Function of
Rape's Representation:
Lessons from the Kennedy
Smith and Tyson Trials
Jody Freeman
LYNN A. HIGGINS & BRENDA R. SILVER, eds., Rape and Representation. New
York: Columbia University Press, 1991. Pp. 326. $35.00.
For lawyers, "representation" has traditionally described their obliga-

tion to their clients, but its meaning for cultural critics and academicians is
somewhat different. Representation refers to the discursive and visual
mechanisms through which an impression of reality is conveyed and con-
structed, usually in art, literature, theatre, and dance.' That something is
"represented" may mean simply that it is depicted, described, or signified.
Someone interested in the effect of representation might attempt to ex-
plain how images, myths, metaphors, and other visual and linguistic de-
vices are used to produce interpretations of reality that are then passed on
as the raw material for further representations. By analyzing not only liter-
ature but film,2 theater,3 photography,4 architecture,5 popular culture,6
Jody Freeman is a Frank Knox Fellow and S.J.D. candidate at Harvard Law School.
Her work is generously funded in addition by a Laidlaw Fellowship and a Social Science and
Humanities Research Council of Canada Fellowship.
The author is grateful to Martha Minow, Jill E. Hargis, Kirstin S. Dodge, Duncan
Kennedy, Howard Erlanger, and N. V. Freeman.
1. These are just some of the means of representation. In contemporary society, televi-
sion, computers and international wire services communicate images rapidly and globally.
See Michele Wallace, Invisibility Blues 6 (London: Verso, 1990) ("Wallace, Invisibility Blues").
2. Teresa de Lauretis, Alice Doesn't: Feminism, Semiotics, Cinema (Bloomington: Indiana
University Press, 1984); Bad Object-Choices, ed., How do I Look? (Seattle: Bay Press, 1991)
(specifically critiquing the representation of homosexuality in film and video).
3. Jill Dolan, The Feminist Spectator as Critic (Ann Arbor, Mich.: UMI Research Press,
1988).
1993 American Bar Foundation.

0897-6546/93/1803-0517$01.00 517
518 LAW AND SOCIAL INQUIRY
and even professional discourses such as law,7 cultural critics and, increas-
ingly, legal scholars, critique representations of gender, race, and class and
argue about the impact of representation on social perceptions. These cri-
tiques often challenge the notion that representations of reality are "natu-
ral" or "accurate." Instead they support the proposition that they are
"effects" that are "produced."
Critiques of representation are concerned with issues of power and
perspective.8 Thus, a critical examination, to take just three examples, of
rape in literature, gay culture in film, or black sexuality in art, might lead
to an analysis of how society perpetuates and "naturalizes" subordinating
images of women, homosexuals, or people of color in ways that reflect the
views and serve the interests of those in dominant positions relative to
them. This kind of criticism often destabilizes accepted understandings by
exposing their social constructedness and contingency. Ultimately, such
critiques question the authority of prevailing understandings of reality. In
doing so, they lay bare relations of power and suggest that other arrange-
ments are possible.
Rape and Representation, a collection of essays on the treatment of rape
in literature, is an example of such a project. Lynn A. Higgins and Brenda
R. Silver have collected an impressive array of essays, which critique works
ranging from Kleist's The Marquise of 0 to 13th-century French pastourel-
les to contemporary cult film. Each essay is a close and critical reading of a
text, designed to explain its portrayal (or failure to portray) sexual violence
against women. The essays are written from a feminist perspective, mean-
ing that they share the impulse to reveal how literature contributes to the
subordination of women in and through its representation of rape. Taken
together, they convincingly demonstrate how women's experiences of sex-
ual violence are suppressed or elided in literary accounts of rape, and how
representation constructs and reinforces images of "natural" male aggres-
sion and "natural" female passivity. In their analyses, the authors subvert
4. Annette Kuhn, The Power of the Image (London: Routledge & Kegan Paul, 1985)
(covering both film and still photographs).
5. Eve Blau & Edward Kaufman, eds., Architecture and Its Image (Montreal: Centre
Canadien d'Architecture, 1989); Beatriz Colomina, ed., Sexuality and Space (New York:
Princeton Architectural Press, 1992).
6. Wallace, Invisibility Blues; for an analysis of images of race in a wide variety of works
see bell hooks, Yearning: Race, Gender and Cultural Politics (Boston: South End Press, 1990),
and id., Black Looks: Race and Representation (Boston: South End Press, 1992).
7. See Mary Joe Frug, "Re-reading Contracts: A Feminist Analysis of a Contracts
Casebook," 34 Am. U.L. Rev. 1065 (1985), for an early and classic work in this genre that
critiques the representation of women in a standard law school textbook. For my own analy-
sis of the representation of battered women and gay men in legal contexts, see Jody Free-
man, "Constitutive Rhetoric: Law as a Literary Activity," 14 Harv. Women's L.J. 305 (1991).
8. Wallace, Invisibility Blues 6: "I consider it a cultural crisis of the first order that so few
people of color, especially women, are in positions of power and authority in the production
of newspapers, books, magazines, television, films, radio, music, movies, academic journals
and conferences, and university faculty and curricula."
The Disciplinary Function of Rape's Representation 519
the traditional or popular interpretations of their chosen texts and read

them to expose hidden layers of meaning. Higgins and Silver have pro-
vided in their collection a rigorous expose of how unequal relations of
power are reinforced in and through literature. The essays, as a whole,
support their editors' claim that "the politics and aesthetics of rape are
one" (at 1). In other words, the representation of rape is understood to be
the reality of rape, even though it is a product of power and perspective.
Although some of the essays are more accessible than others, and
none standing alone has the force of their collective message, the book is
useful reading for lawyers and cultural critics alike, as a starting point for
analyzing other "texts" about rape, ranging from popular films to criminal
trials. The strength of Rape and Representation is in the variety of the essays
and the consistency with which the authors insist that literature is neither
innocuous nor neutral in the construction and reinforcement of societal
attitudes toward desire, sexuality, force, and consent. Implicit in virtually
every essay is the suggestion that far more than an isolated act of violence,
rape functions as a context, a set of rules and understandings, a backdrop
against which power is exercised. Aside from providing fascinating alterna-
tive readings of some familiar (and other more obscure) works, this book is
a very good example of the kind of critical analysis that turns on persuad-
ing the audience of the validity of a particular interpretation.
Lawyers may resist the readings offered here, simply because they
stray from familiar interpretations, and because they appear to be written
for the consumption of other literary critics. But persisting in this challeng-
ing territory has its rewards, for after several essays lawyers will notice that
these academics are engaged in the very same exercise in representation
and persuasion performed daily in courtrooms. There is no empirical way
to "test" the ultimate truth of this kind of cultural criticism, depending as
it does on a combination of assumption, conjecture, and careful elabora-
tion. As with legal argument, one can only ask whether the critic's case has
been rigorously made, and whether it seems plausible. It may seem that
legal arguments are based more on "facts" than is literary criticism, but
they too are interpretations, rereadings, or just plain fictions. Ultimately,
law is culture, and the cultural criticism usually reserved for the arts has
much to offer those interested in the meaning and impact of legal
representations.
As Higgins and Silver note in their introduction, representation,
whatever its form-legal, literary, political-"contributes to the social
positioning of women and men and shapes the cognitive systems that
make rape thinkable" (at 3). Representations, including legal ones, have
both direct and diffuse effects on our cultural consciousness: they are part
of a complex socialization process that influences how we think about gen-
der roles and identities. And although the meaning and impact of images
are difficult to measure, it is plausible that people internalize and act upon
prevailing stereotypes about themselves.9
In the wake of the William Kennedy Smith and Mike Tyson rape
trials, and in the shadow of the Senate hearings to confirm Clarence
Thomas to the Supreme Court, scholars have began to analyze how these
legal and official proceedings used or relied on gender, race, and class ste-
reotypes.10 Much of this academic commentary is devoted to explaining
the strategic impact of invoking stereotypes or familiar cultural narratives
and exposing the subtle ways in which unconscious and insidious assump-
tions about "normal" sexuality or "natural" racial differences embed
themselves in official proceedings. This is no small task, given the difficulty
of proving that any single interpretation of the meaning and impact of
representations is accurate. As lawyers, we usually manifest skepticism to-
ward effects we can neither isolate nor measure. But rather than dismiss
representational analysis as irrelevant to legal discourse because it is con-
cerned with narrative, imagery, and symbolism, we should embrace it as an
important form of legal critique.
If one is willing to entertain the proposition that public trials and
hearings have an impact beyond the immediate verdict and the parties
involved, then it is worth exploring in detail conflicting interpretations of
their content. Far from being arcane intellectualism, subjecting representa-
tions to an analytic microscope is an attempt to understand the connec-
tion between legal argument and popular beliefs and to complicate the
relationship between fact and interpretation. Legal representations of rape
are similar to literary representations in that they draw on and produce
images that are already prevalent; they are part of what might be called the
existing representational economy. Authors from Shakespeare to D. H.
Lawrence to Gertrude Stein have reinforced racial and sexual stereotypes
in their works by depicting both working class people and black women,
for example, as aggressively and incorrigibly sexual." Lawyers may do this
too, when they pander to stereotypes in making their case. Beyond this
parallel, literary and legal representations can act, indirectly, as resource
bases for each other. The interstices of legal reasoning are filled with as-
9. See Wallace, Invisibility Blues 3 (cited in note 1): "Combinations of racism and sexism
are much harder to diagnose in the visual modes than in the discursive modes, just as they
are much more palatable in the form of art or photography than in the form of analysis...
[P]eople, especially black people, know so little, in a conscious way, about how images affect
them."
10. Kristin Bumiller, "Rape as a Legal Symbol: An Essay on Sexual Violence and Ra-
cism," 42 U. Miami L. Rev. 75; id., "Fallen Angels: The Representation of Violence against
Women in Legal Culture," 18 Int'l J. Scc. L. 125 (1990); Toni Morrison, ed., Race-ing Justice
and En-gendering Power (New York: Pantheon Books, 1992) ("Morrison, Race-ing Justice").
11. Nell Irvin Painter, "Hill, Thomas, and the Use of Racial Stereotype," in Morrison,
Race-ing Justice 206-10, referring to Shakespeare's Romeo and Juliet and The Tempest, Law-
rence's Lady Chatterley's Lover, Stein's As Fine as Melanctha, as well as many other texts and
films.
sumptions about sexuality and gender roles drawn from popular culture.
Even without intentionally doing so, lawyers may build arguments that
reflect ideas found in literature, film, and art. When these images are trans-
lated into legal discourse, however, they gain authority. What looks like
perspective and interpretation in the world of art appears in a legal forum
to be truth-the product of objectivity and principle. Those with the
power to categorize bear an enormous responsibility for the construction
and perpetuation of invidious stereotypes, and lawyers are no exception.
The book is divided into four clusters of essays, each organized the-
matically around one more central idea. Part I, "Prior Violence," features
essays that expose how some of the oldest works of Western culture set in
motion problematic ideas about natural male and female sexuality that
persist to this day; Part II, "The Rhetoric of Elision," focuses on the gaps
and empty spaces in some of the most famous works of fiction revolving
around rape, and fills them with the violence they seem to omit; Part III,
"Writing the Victim," explores how authors, through their strategies and
techniques, often contribute to the victimization of women even as they
seek to expose it, making it impossible for them to claim a critical distance
from their work; Part IV, "Framing Institutions," focuses on how the insti-
tutional discourses of law and politics, and of course literature, frame rep-
resentations of rape, often rationalizing violence against women and giving
voice to the powerful over the oppressed; Part V, "Unthinking the Meta-
phor," critiques the social and literary institutions and conventions, in-
cluding the Western lyric tradition and the interpretive strategies of
postmodernism, that make the mystification of rape possible.
In this essay I argue that representations of rape in legal discourse,
like those in literature, create and recreate problematic stereotypes of race,
gender, and class. A close analysis of the representation of rape in both the
William Kennedy Smith and Mike Tyson trials will illustrate what I believe
are central claims of Higgins and Silver's book, claims that overlap the
sections of the book and stay with the reader throughout: that representa-
tions of rape often naturalize female passivity and legitimize male sexual
aggression, that they treat only certain classes or "types" of people as
rapable, and that they have a disciplinary effect on women and black men,
among others. Legal representations, like literary ones, typically depend on
stereotyped notions of white women's, black women's, and black men's
sexuality.'2 In an immediate sense, they limit the range of identities that
12. I exclude white men's sexuality from this list not because it is somehow less a prod-
uct of representation than the sexuality of women and black men but because it is the
background norm against which other sexualities are created. What I mean is that white
male sexuality functions as does race for white people: whites can easily be unconscious of
themselves having a race because it is others who are raced compared to them. Similarly,
white male heterosexuals can be unconscious of their sexuality because it is accepted un-
problematically as the norm.
women and black men can safely occupy when they portray themselves to
juries in rape trials. In an indirect way, they are a source of disciplinary
messages for the general public. I build my argument on the insights of-
fered in three of the book's essays, which I describe in section I. A close
examination of the two trials in section II underscores the importance of
extending any gender focused critique to include race and class. Only
when the interaction of gender, race and class are accounted for can a
more complete vision of representation's disciplinary effect emerge, which
I explain in section III. Finally, in section IV, I discuss the possibility of
resistance to dominant representations, and I conclude with the political
implications of my critique.
1. THREE ESSAYS
In "The Education of Chloe: Erotic Protocols and Prior Violence,"

John J. Winkler challenges the traditional interpretation of Longus's Pas-
torals of Daphnis and Chloe as an innocent pastoral romance. Longus's text,
one of several ancient Greek novels that have survived intact,13 is a story
of two infants raised on the island of Lesbos. Their foster parents have
educated them beyond their own status as shepherds, so that Daphnis, the
young boy, and Chloe, the young girl, might be economically successful.
The Greek god Eros interferes with the parents' intentions, appearing in a
dream and directing them to send the two adolescents out into the field to
tend the goats and sheep. There, the handsome, youthful pair experience
their first sexual encounter together. Winkler argues that "the greatest
myth still made of this text is that it is too pretty, a picture perfect account
of dreamy adolescence budding and ripening" (at 21). He cites numerous
readers who have traditionally appreciated the charm, humor, and aes-
thetic appeal of the romance.14 His interpretation, by contrast, is that the
Pastorals are a story of "rape repeatedly escaped" (at 17). What appears to
be an innocent adolescent education in desire is instead a lesson in rape.
His reading explores the process by which Daphnis learns that force and
aggression are "natural" and Chloe learns that her experience of violence
is "real" sex.
13. In his essay, Winkler points out that the title of the work varies in the ancient
manuscripts but is dated to some time in the late second or early third century B.C. Winkler
relied on a text by Michael Reeve (Daphnis and Chloe (Leipzig: Teubner, 1986)).
14. See R. L. Hunter, A Study of Daphnis and Chloe (Cambridge: Cambridge University
Press, 1983); A. Heiserman, The Novel before the Novel (Chicago: University of Chicago
Press, 1977); and G. Anderson, Eros sophistes: Ancient Novelists at Play (Chico, Cal.: Scholars
Press, 1982); even those who notice the violence in the text see it either as a rejected alterna-
tive to the couple's destined bliss (see T. Pandiri, "Daphnis and Chloe: The Art of Pastoral
Play," 14 Ramus 116 (1985)) or as a painful, though necessary rite of passage for Chloe. See
H. H. O. Chalk, "Eros and the Lesbian Pastorals of Longos," 80 J. Hellenic Stud. (1960).
On the surface, Daphnis' teacher Lykainion is a messenger from the

Gods, sent to relieve the young lovers from their frustrated erotic
fumblings. Lykainion appears sweet and sympathetic, showing Daphnis
that the secret to sex is penetration. Lykainion warns that it is both in the
learning and the doing of her teachings that Daphnis will become a man.
But Winkler's interpretation is that Lykainion is a messenger of horror
and violence, who teaches Daphnis that sex is necessarily violent and pain-
ful for the woman (at 26). She counsels him that although Chloe will strug-
gle, scream, and bleed, her pain is natural, and he should bring her to a
secluded place so that no one will hear or see her. Winkler argues that the
inequality between the two youths is ensured once Daphnis accepts the
inevitability of harming Chloe.
The story closes with Daphnis and Chloe's wedding, after which
Daphnis presumably performs on Chloe the lessons of eros (or, according
to Winkler, violence), impressed on him by Lykainion. The narrator de-
scribes the scene like this: "Daphnis and Chloe lay down together naked,
embracing each other and kissing, awake during the night more than owls;
and Daphnis did some of what Lykainion had taught him; and then Chloe
for the first time learned that the things which had taken place in the
woods were only the playful games of children" (at 29, quoting from the
Pastorals at 4.40). Winkler interprets this scene less innocently. Daphnis
sees his behavior as natural desire, when it is really force, and Chloe, on
the basis of her new wedding-night experience of violence, reinterprets her
earlier nonviolent sexual play with Daphnis (prior to his "education" by
Lykainion) as childish and not real. Thus, Winkler argues, Chloe is taught
to accept her own rape and to view it as sex. He argues that the traditional
and less problematic reading of innocent sexual discovery depends on a
variety of literary devices, including Longus' allusion to other love novels
and pastoral poems, which are meant to provide a blissful context within
which to interpret the story (at 28-29). Finally, Winkler explains Longus'
use of displaced authority to make his perspective appear neutral. The nar-
rator of the pastoral appears to "discover" a painting of this "narrative of
desire" (at 19-20), which he then merely describes to the reader, a stance
that permits him (and presumably Longus) to avoid responsibility for con-
structing the story's representation of sex as naturally violent (at 20).
Brenda R. Silver similarly poses an alternative to traditional interpre-
tations in her essay, "Periphrasis, Power, and Rape in A Passage to India."
In E. M. Forster's classic novel of social and sexual relations between the
British and the colonized Indians during the early 20th century,15 the cen-
tral event is Adela Quested's "experience" in the Marabar caves, the de-
tails of which are never described to the reader. The incident does,
however, become the basis of an Indian character's trial for attempted
15. E. M. Forster, A Passage to India (1924; repr. London: Hodder & Stoughton, 1991).
rape. This gap or elision in Forster's novel leaves an interpretive space

which critics have willingly filled with speculation about what "actually"
happened in the caves. One common interpretation, based on the notion
that Adela is sexually repressed, is that her experience in the caves was an
illusion stemming from her desire to be raped.16
Silver credits Forster for using his fiction to explore gender and racial
stereotypes; if anything, her critique is aimed at the interpretations of his
work that treat rape as the consummation of women's repressed illicit
desires. In fact, Silver reads the novel's treatment of rape in a way that is
arguably consistent with Forster's intention: "in terms of a deployment of
sexuality within a system of power that posits a complex network of same-
ness and difference." She explores what it means to be "rapable," that is,
"to occupy a social position of both racial and gender inferiority" (at 117).
Forster's work exemplifies how the socialization of gender and race de-
pends on a system of objectification and appropriation in which both wo-
men and nonwhite men find themselves socially constructed as lesser than
white men. Throughout the novel, the Indian character, Aziz, is rhetori-
cally reduced to his body and skin color which mark him as sexually de-
praved. Indian men are "natives" and "types," who are thought, by
nature, to be attracted to white women. Denied full subjectivity by the
white male power system, which is given voice in other characters' remarks
about the sexual depravity of Indians, Aziz becomes simultaneously rapist
and rapable, in the sense that he is socially positioned as a potential agres-
sor against Adela, and a victim of white male power (at 122, 126). Adela's
subjectivity is also appropriated by men; her accusation provides an excuse
for the cloistering of all women for their own protection.
Silver argues that Adela's decision to "speak rape," that is, to insist
that her experience of sexual violence be recognized, encounters resistance
by both white and nonwhite men. Fielding, the principal white male char-
acter, calls her a prig; Aziz-ironically, since he was similarly reduced to
his body-reduces her to her lack of beauty. Although she eventually with-
draws her charge against Aziz, Adela's accusation represents, for Silver, an
assertion of her subjectivity, and a sign of resistance to the constraining
discourse of sexuality that binds men together in the objectification of wo-
men. Men in the novel, according to Silver, resent "the rare moments
when women, rather than allowing themselves to be objects of protection
or exchange among those who have power, resist this structure by acting
or speaking for themselves." This is evidenced by a male character's state-
ment that "women make it more difficult here," alluding to the tempta-
tion white women represent for Indian men. Silver's central argument here
16. V. A. Shahane, E. M. Forster, "A Passage to India": A Study (Delhi: Oxford Univer-
sity Press, 1977); L. Stone, The Cave and the Mountain: A Study of E. M. Forster (Stanford,
Cal.: Stanford University Press, 1966), as cited by Winkler.
is that rape depends on and reinforces a rhetoric of difference (between

both men and women and between white and nonwhite men), which can
be maintained only through the imposition of reductive stereotypes. Silver
suggests that by "speaking rape," Adela fills the gaps and subverts the
elisions in the text by giving voice to the social relations that constrain the
subjectivities of women and Indians.
In "'A Little More than Persuading: Tess and the Subject of Sexual
Violence," an essay on Thomas Hardy's Tess of the d'Urbervilles, Ellen
Rooney questions the distinction between seduction and rape, which, she
argues, depends on perspective and interpretation.17 Her essay demon-
strates how the distinction in fact collapses throughout the novel. Hardy
constructs Tess as passive, capable only of giving and witholding consent
in response to male sexual aggression, but not of asserting her own desire.
Rooney argues that because Hardy cannot create Tess as a desiring, speak-
ing subject, he is unable to represent sexual violence from her point of
view. Hardy's text is unclear about whether Tess was raped or seduced by
Alec in the Chase, leaving room for several interpretations, which critics
have eargerly provided.
What Rooney draws out of Hardy's novel is the possibility that Tess
experienced rape while Alec experienced seduction and that their split in
experience helps explain the confusion between consent and force. She
argues that the rape/seduction dichotomy works to reinforce female pas-
sivity, leaving women only the choice of consent or refusal to a man's natu-
ral sexual advances. In this view, a woman's (even slight) equivocation is a
signal of seduction, while only unequivocal resistance marks the same be-
havior as rape. But the distinction between a raped and a seduced woman
is unstable, and Tess' constructed passivity is short-lived. "In representa-
tions of this woman, we may again find the rhetoric of rape displaced into
the rhetoric of seduction. The raped woman becomes the seductive wo-
man; as such, she appears as an aggressor provocateur, paradoxically ac-
tive" (at 93).
Many critics feel that Hardy aspires for Tess to be a "pure" woman
but that she in fact appears in the novel to be both pure and seductive at
the same time.18 Rooney argues that this ambivalence about female subjec-
tivity is tied to the evasive distinction between rape (which can happen
only to the pure) and seduction (which is provoked by the impure). It
17. Here she draws largely on Catharine MacKinnon's theory of the "split reality" of
rape, by which she means that men experience the encounter as consensual and women
experience it as forced. This leads to a situation in which a woman is "raped, but not by a
rapist." See Catharine A. Mackinnon, "Feminism, Marxism, Method and the State: To-
wards a Feminist Jurisprudence," 8 Signs 636, 654 (1983).
18. For examples of critics commenting on Tess's purity, Rooney cites Mary Jacobus,
"Tess: A Pure Woman" in S. Lipshitz, ed., Tearing the Veil: Essays on Femininity (London:
Routledge & Kegan Paul, 1978), and Laura Claridge, "Tess: A Less than Pure Woman
Ambivalently Presented," 28 Tex. Stud. Language & Literature 324 (1980).
follows that if a woman is, by her very existence, an invitation to men, the
possibility of rape disappears with the possibility of innocence. The notion
that a woman could actively exhibit desire independent of the choice to
consent to or resist men seems impossible for the female subjectivity that
Hardy has constructed. This is what Rooney means when she says that
Tess exists here only as "sexual difference .... Her subjectivity is struc-
tured as her flesh is structured: female, over and against the male." Her
reading demonstrates not only how the distinction between rape and se-
duction blur when male sexual aggression is treated as natural, but it ex-
poses how women's subjectivity is hopelessly confined to seductive
passivity within a "problematic of consent," imagined from a male per-
spective. As a result, "the meaning of Tess' sexuality is consistently deter-
mined elsewhere" (at 107).
Identifying general themes among these essays, like summarizing
them, raises the danger of oversimplification. Even given my brief reading,
however, a number of important lessons emerge. Each of the three essays
makes the point that texts "produce" and reinforce stereotypes through a
variety of linguistic devices. In particular, texts concerned with rape tend
to treat male sexual aggression as natural, reduce women's sexuality to pas-
sivity while simultaneously treating them as seductive, and demonstrate
how rapability flows from social subordination. Beyond this, Higgins and
Silver's collection can be read as a sustained argument that representations
of rape are an exercise in its mystification. The collection is important
because it criticizes any attempt to naturalize existing understandings of
male and female sexuality-understandings that permit us to justify or ig-
nore rape or to mistake it for sex. At the same time, the essays resist offer-
ing a different vision of male and female sexuality that would be equally
fixed. They seem to stake out a difficult position, rejecting stereotypes,
which suggests that there is a "reality" underneath stereotyping that is
being inaccurately represented, but not doing so in order to substitute a
counter-stereotype.
II. TWO TRIALS
Like the examples above, both the Smith and Tyson trials can be read
as constructions of rape, informed by representations of gender, race, and
class.19 Both are subject to the same analysis and criticism often reserved
19. My analysis of the Tyson trial is based on the trial transcripts, primarily on the
direct examination and cross-examination of Washington and Tyson. Indiana v. Tyson,
Cause No. 49G04-9109-CF-116245, Marion County Sup. Ct. Transcript of Proceedings at
Trial, 31 Jan. 1992, 8 Feb. 1992. I thank Alan Dershowitz for generously making these
available to me. My analysis of the Smith trial are based on viewing the entire trial as broad-
cast on the Cable News Network and viewing the videotape of the proceedings made by
Court T.V. as part of its Trial Training Program.
for literary texts. Of course, one might argue that these cases should be
viewed in the narrow context of their very specific facts. It is true that the
trials differed significantly in terms of locations, prosecutors, juries, wit-
nesses, defendants, defenses, and facts, which arguably go a long way to-
ward explaining the outcomes. A comparative analysis of the trials on the
basis of these factors is certainly a worthwhile exercise and would un-
doubtedly yield useful information for lawyers about where and how to try
a similar case. Even those willing to acknowledge the broader import of the
two cases might stop short of a detailed analysis of representation, perhaps
oversimplifying their impact. They might conclude, for example, that be-
cause Smith was acquitted while Tyson was convicted, the legal system is
racist and classist. Others, naturally, would disagree. But any superficial
analysis of the trials that does not address their portrayal of gender, race,
and class stereotypes is incomplete because it misses important nuances
that tell us something about the meaning of rape.
In both trials, rape was represented as something that only certain
"types" of men do to certain "types" of women. To different extents, they
seemed to assume and reinforce the notion that men are naturally sexually
aggressive and that the onus is on women to resist them. Like the Greek
Pastorals, they provide a window into the socialization of male and female
sexuality; like A Passage to India, they portray rapability as a product of
social position; like Tess of the D'Urbervilles, they construct women as simul-
taneously passive and sexually aggressive and condition sympathy on their
innocence. Understanding the full impact of the representation of rape in
the two trials involves a multidimensional reading, one devoted to the
complicated interaction of race, class, and gender. I will argue that stereo-
types limited the choices of both the defendants and complainants, in
terms of how they portrayed themselves to, and how they were received
by, the juries. This race-class-gender dynamic serves to discipline black
men and both black and white women; it teaches them who they must be
in order to allege rape or defend themselves against accusations of rape.
The Tyson Case
A close look at the Tyson case reveals the process by which the com-
plainant and defendant were created for consumption by the jury and the
public. The prosecution depicted Washington as an unwitting, star-struck
young girl who was callously exploited by Tyson. At trial, she testified that
she had accepted Tyson's invitation for a date late at night so that she
could sightsee and meet celebrities. She naively believed him when he said
he had to stop into his hotel room to get something, and then accompa-
nied him there only to be brutally raped. Tyson insisted that he had
bluntly propositioned her during a promotional appearance at a beauty
contest she had entered, and that she went out with him knowing that he
expected sex. She wanted him for his celebrity and his money, he said, and
she knew exactly what it meant to go up to his hotel room.20
In an interview with Barbara Walters following Tyson's conviction,
Ms. Washington portrayed herself, with considerable help from Ms. Wal-
ters, as an innocent, trusting victim with whom we could all (white people
in particular, one can't help but think) identify. In the interview, Walters
described Washington as "an All-American girl. A beautiful baby in a fam-
ily of three children, she was a varsity cheerleader at Coventry High
School and played on the school's championship softball team. She did
volunteer work and taught Sunday school, too, all the while on the honor
roll."21 The interview paralleled and reinforced her portrayal at trial where
Washington appeared similarly sympathetic.22
Not only was she as all-American as apple pie, but she was a good
"representative" of her race. She was chosen, "as a goodwill ambassador
to Moscow, the only black in a group of 34 students from across the coun-
try."23 This is precisely the kind of image necessary for Washington to
overcome the presumption that black women are always sexual and by
definition consenting. A more cynical reading of this character sketch
reveals the reasons for its sympathy-evoking effect. Washington appeared
to fit the criteria for the perfect victim: young and innocent, aspires to
mainstream success (a college freshman like your own daughter),24 conven-
tional and unthreatening (stereotypically feminine, beauty pageant contest-
ant) and, perhaps most cynically, ultimately serving a purpose whites can
support (whistle-blowing on black men). Most black women, like most
white women, could never fit this description.
In some ways, the fact that Washington was a beauty pageant contest-
ant perfectly supported this image, given the youth and innocence that
20. Alan Dershowitz, Tyson's lawyer on appeal, described Tyson's interpretation of

events this way: "He is convinced he did not do anything wrong. He is convinced this
woman was a groupie and just expected from him what she got. She certainly behaved like a
groupie." "Larry King Live," Cable News Network Transcripts, 14 Oct. 1992.
21. "20/20," ABC News, 21 Feb. 1992, Barbara Walters interview.
22. At trial, the prosecutor posed questions to Mike Tyson that were clearly intended
to make his defense sound ludicrous and to play up the innocence of the alleged victim. Q.
"Desiree Washington, 18 years and one month old, just graduated from high school ...
incoming freshman from Coventry Rhode Island says, basically, 'You want to fuck me? Fine.
Call me'?" Transcript of Proceedings at Trial, 8 Feb. 1992, p. 1912.
23. Id.
24. I am not arguing here that Ms. Washington is "in fact" assimilated or that being
assimilated is a good thing. My use of the word assimilated is meant critically. My point is
that her "credentials" made her less stereotypically black and more stereotypically white,
and that this helped displace negative stereotypes which made it easier for white audiences
(and presumably the jury) to relate to her as a daughter "like their daughter." I think this
case would have been radically different if Washington had been a prostitute, or a drug
addict, or simply uneducated, and I think this only because of prevailing biases against such
people, particularly when they are people of color.
such contests suggest. However, as much as these pageants depend on our

addiction to youth, they also depend on the sexualization of children, by
suggesting that one is never too young to be a woman. In fact, the semi-
pornographic appeal of pageants stems from the virginal quality of the
contestants and their willingness to construct themselves for, and submit
themselves to, men for appraisal. Because the pageant can be viewed as an
attempt to qualify for the "status" of woman, that is, an attempt to be
considered sexual, it was a potential problem for Washington. Predictably,
the defense sought to portray her as a mature, aware and consenting adult
and they too relied in part on the beauty pageant image. Alan Dershowitz,
Tyson's lawyer on appeal, has used the pageant both to undermine her
credibility and build respect for Tyson's alleged frankness. "One thing
about Mike. He's the most direct guy you've ever met. He tells you exactly
what he thinks of you. She, on the other hand, she's a pageant star. She's
used to pretending. She's used to acting. I believe Mike Tyson."25 These
competing depictions of her suggest that Washington is either baby or
vixen, which ignores the possibility that she could be both, neither, or
more. Whether Washington is in "reality" the innocent young girl her
lawyer and the media made her out to be, or whether she is the worldly
woman the defense insisted she is, we will never know. Although I suspect
that her identity cannot be reduced to either extreme stereotype, the effect
of her being represented in those terms reinforces them as the only avail-
able terms with which to understand a woman's identity.
The Tyson trial leaves a strong impression that innocence is a precon-
dition to getting raped (or being believed, which is all that matters in a
trial). "Girls" get raped, in other words, but women don't. "Women" here
is understood to mean sexual, sexually active, and sexually available, and it
is presumptively ascribed to those who are black, lower class, and socially
extroverted. Innocence, or the status of being a girl, can be earned by
lower class or black women who are young, demure, conforming, in-
troverted, and sexually inexperienced. The price of being believed, then, is
infantilization. Women must avoid transgressing the boundaries of femi-
nine humility and sexual circumspection not only because they may other-
wise be at real risk of male violence but because only the perception of
their purity preserves the possibility that they will be believed if they are
raped. The Tyson trial, despite his conviction, telegraphed the same
messages about gender and race that the essays above convey.26
25. Alan Dershowitz, responding to a caller's question on "Larry King Live" (cited in
note 20).
26. In fact, that Tyson was convicted and sentenced to serve time in prison is unusual
since, according to one study, "the only category more likely to receive probation than
prison is the black/black category" (referring to crimes of assault by blacks on blacks).
Anthony Walsh, "The Sexual Stratification Hypothesis and Sexual Assault in Light of
Changing Conceptions of Race," 25 Criminology 153, 161 (1987).
It is inescapable that Washington was helped enormously by Tyson's

abusive and violent reputation. His defense-essentially that he was rapa-
ciously sexual and everyone knew it-even played nicely into the prosecu-
tion's depiction of Washington as the fragile, brave heroine standing up to
a brute.27 Next to this, Washington's image as a model black citizen was a
winning strategy. She was compassionately humanized while Tyson was
cynically and relentlessly dehumanized, in media coverage that fueled every
conceivable negative stereotype about black men. Even sympathetic arti-
cles that charted Tyson's difficult background suggested that his sexual
aggression was inevitable. And in a perverse but predictable way, people
seemed to enjoy rooting against him.28 Throughout his career, fight pro-
moters, boxing fans and the media had cultivated, even nourished, his
aggressive behavior, but suddenly he was recreated by them overnight and
turned into a monster with no one to blame but himself.29 That his de-
fense is even thinkable depends on our acceptance of the idea that at least
some male sexual aggression is natural, and that women's subjectivity con-
sists of tempting and then having to resist men.
The William Kennedy Smith Case
Stereotypes worked in an analogous way in the Smith trial, with the

role of class replacing the role of race. The jury's determination depended,
I would argue, in large part on whether they thought Smith a raping type.
The defense subtly played on widespread beliefs about the "kind" of men
who rape and the "kind" of women who get raped. Bowman was depicted
by defense counsel as socially ambitious, sexually promiscuous, and men-
tally unstable. Perhaps she was, although perhaps not. The point is that
successfully characterizing her that way was a critical part of the defense's
strategy. And common beliefs about appropriate gender behavior helped
Smith's lawyer enormously. For example, the fact that Bowman was out
27. The response to her in some black communities, however, was not favorable. She
was denounced for destroying a black role model and for, in effect, betraying her race. The
same criticism was made of Anita Hill in the context of her accusations of sexual harassment
against Clarence Thomas. Carol Swain argues "For African Americans generally, the issue
was not so much whether Hill was credible or not; she was dismissed because many saw her
as a person who had violated the code of censorship, which mandates that blacks should not
criticize, let alone accuse, each other in front of whites." See Carol M. Swain, "Double
Standard Double Bind: African-American Leadership after the Thomas Debacle," in Morri-
son, Race-ing Justice 225 (cited in note 10).
28. I encountered one male law professor who commented: "Of course, he is guilty.
Look at him. He's an animal. If you drilled a hole through his head [while making the
motion of drilling into his head], you'd find a brain the size of a pea."
29. Many commentators shared my view. One described Vincent Fuller's strategy as
"pandering to one of the most enduringly powerful racist preconceptions about black sexu-
ality: the mystique of the black male libido, and the voracity of the black female in satisfying
it." Independent (London), 16 Feb. 1992.
late in a bar immediately suggested promiscuity for her, although it did not
for Smith. Consuming alcohol diminished his responsibility and height-
ened hers. She was easily reduced to a "type" of woman, objectified and
appropriated for social ends, as Rooney would say of Adela in A Passage to
India.
This can be a subtle process. Lawyers do not need to explicitly argue
that certain "types" of women consent precisely because juries are influ-
enced in their judgments of credibility by how well the parties conform to
an internalized stock of roles and scripts. As one prosecutor noted, "Jurors
equate a victim's lifestyle with her credibility, so unless you can neutralize
what they bring in-what I call 'the baggage' that all of us bring in with
our life's experiences-you can't have a fair forum."30 It is not unusual for
jurors to make statements indicating that their judgment in a rape trial
turned on the complainant's "provocative," dress or behavior, which is
offered as evidence of consent.31 Following the 1983 New Bedford rape, in
which a woman had been gang-raped on a pool table in a tavern while a
crowd cheered, the media focused overwhelmingly on the victim rather
than on the group of men accused. The victim had been a welfare mother,
she drank, and she had been in the bar-behavior that suggests she was
the kind of woman who consented.32 The distinction between the "types"
of women who consent and actual consent in the particular circumstances
is easily blurred in the context of a rape trial. When the jury evaluated
Smith's interaction with Bowman, its members may have drawn on their
own education in these matters, reproducing internalized stereotypes
about "natural" male and female sexuality and appropriate gender roles.
Bowman's status as a mother, like Washington's beauty pageant im-
age, cut two ways in the trial. Although motherhood often suggests re-
sponsibility and tends to desexualize women, making an accusation of rape
more believable, this was not the case for Bowman. Her youth, unmarried
status, and extroverted social behavior made her appear promiscuous, un-
reliable and desperate: a bad mother. In Washington's interview with Bar-
bara Walters, she had spoken directly to the criticism that she should have
anticipated Mike Tyson's behavior and replied that she had been naive.33
This approach was simply not available to Bowman, who was older and
30. Judith Rowland, interview on "Larry King Live," Cable News Network Transcripts,
27 April 1992.
31. Following an acquittal in a rape trial in Fort Lauderdale, one juror said, "She asked
for it. We felt she was up to no good the way she was dressed." See N.Y. Times, 7 Oct. 1989,
cited in Judith A. Baer, ed., 2 Women in American Law 246 (New York: Holmes & Meier,
1991).
32. Id. at 249. Four of the six defendants were convicted. Commonwealth v. Raposo,
No. 12268 (Mass. Super. Ct., 22 March 1984); Commonwealth v. Cordeiro, No. 12267
(Mass. Super. Ct., 22 March 1984); Commonwealth v. Silvia, No. 12266 (Mass. Super. Ct.,
17 March 1984); Commonwealth v. Vieira, No. 12265 (Mass. Super. Ct., 17 March 1984).
33. Barbara Walters interview (cited in note 21).
whose child was clear evidence of sexual activity. Had allegations of

Smith's past sexual misconduct been admissible, it might have neutralized
somewhat Bowman's "brimming" sexuality, but without it, and even with
the protection of Florida's rape shield law, there were ample indications
that Bowman was no innocent.34 Bowman's credibility, like Washington's,
depended on whether she could convincingly portray her innocence over
their seductiveness, a distinction that played as central a role in the trial as
it did in the story of Tess.
That Bowman be seen as sexual was important to the defense only
because sexual women are believed to be prone to consent. And she was,
after all, in a bar, late at night, in a party town. These things are markers
indicating that she was clearly looking for action. Women who want to be
safe stay home. Here, just as in the Tyson trial, the range of available iden-
tities that women can occupy shrinks to two: either conform to the stereo-
type of innocence or risk being a sexual subject at your peril. Her friend
Ann Mercer testified that when she saw Bowman leave the bar with Ken-
nedy Smith, she thought of Bowman, "she's an adult . . . it's her own
decision." Roy Black, Smith's lawyer, made sure that the jury noticed that
comment, and implied that it meant that even Mercer saw the event as a
sexual contract. He suggested in closing argument that this was Bowman's
"big night out" and that she was "getting a life," as her mother had ad-
vised her earlier in the day, by attaching herself to a man.35 The night and
the setting were something "out of a romance novel" Black said, and "one
thing led to another." The message was that for Bowman, meeting Ken-
nedy was a fantasy, a way out of her average existence, something any
woman would want, and that everyone on the jury understood the
narrative.
Considerations of social class also had an impact on how Bowman

was perceived. Smith's education, family background, and class militate
against him being the kind of man who rapes. He does not need to, one is
tempted to think, since he is a young, attractive, well-bred, professional
young man. The notion of needing to rape implies that men are driven to
it by unsatisfied desire, that is, by women who deny them access, which
would clearly not be Smith's problem. In fact, Smith's image contrasted
sharply with the pervasive stereotype of a rapist, usually imagined to be a
black assailant who jumps out of the bushes.36 Against this image of
34. In fact, three other witnesses were prepared to testify that Smith had sexually as-
saulted them. The prosecution's motion to introduce the evidence was denied because the
evidence did not show a distinct "pattern of behavior" as opposed to a propensity. Because
of Florida's rape shield law, Bowman's sexual history was inadmisible, but the press widely
publicized her alleged abortion and the fact that she was a single mother.
35. Cross-examination of Patricia Bowman, Court T.V. Trial Training videotape.
36. In fact, the majority of rapes are committed by people known to the victim. See
Susan Estrich, Real Rape 12 (Cambridge: Harvard University Press, 1987). Although her
statistics date from the 1970s, Susan Brownmiller cites numerous studies indicating that the
Smith, the image of Bowman as a promiscuous, plotting social climber at-

tracted to the star power of a Kennedy makes perfect sense.37 This identity
is so easy to slip on only because of the pervasive belief that women use
their sexuality for advancement, whether socially or professionally, and
that women of an inferior class would not say no to men of a higher class.
In this script, women of a lower class are more sexually available than
women of a higher class or status (who can presumably be more choosy),
and both are manipulative and socially ambitious.
III DISCIPLINE
The combination of race, class, and gender representations in the tri-

als interacted to produce a powerful message about who rapes and who
gets raped in this society. I use the term "rapable" to describe the likeli-
hood that a sexual encounter will be called rape. Based on my reading of
the trials, one might summarize their message as follows: white women are
prima facie rapable if they are either very young or of a higher class than
the defendant; white women who are sexual (that is, anything other than
very young or another man's property) are unrapable. Black women are
prima facie unrapable (presumed to be sexually available) unless they are
either childlike or of a higher class and are relatively assimilated within
white culture.
The disciplinary function of representations about women's sexuality

varies with race. Nell Irvin Painter argues that the prevailing stereotypes of
black women-the mammy, the welfare queen, and the "oversexed-black-
Jezebel"-provide the narrative context in which black women victims of
rape must articulate who they are and what happened to them. Painter
claims: "Stereotypes of black women remain fairly securely in place, and
the public discussion that would examine and dislodge them has only be-
gun to occur around the mammy image. The oversexed-black-Jezebel is
more likely than not still taken at face value."38 Black women complain-
ants must allay suspicions that they want sex under any circumstances or
that rape is less serious for them due to their presumed promiscuity. There
is some disturbing evidence that many people, including judges, view as-
majority of reported rapes are committed by men against women who are of the same race,
with the overwhelming majority of reported rapes being black on black. See Susan
Brownmiller, Against Our Will: Men, Women and Rape 235 (New York: Simon & Schuster,
1975) ("Brownmiller, Against Our Will"). Recently, the National Victims Center Survey con-
ducted by the Medical University of South Carolina reported that in 70% of rapes, the
victim is acquainted with her assailant.
37. Although Bowman owned her own home and had a trust fund, her status was
clearly inferior to that of a member of the Kennedy family.
38. Kimberle Crenshaw, "Whose Story Is It Anyway?" in Morrison, Race-ing Justice 209
(cited in note 10) ("Crenshaw, 'Whose Story?' ").
saults on members of "socially inferior" groups as less serious than assaults

on members of powerful groups. Some apparently believe that black wo-
men take rape "in their stride."39 As a result, black women bear an enor-
mous burden of establishing their sexual innocence. By contrast, this
status is easily granted white women, unless there is evidence to the con-
trary or until class enters the equation. Moreover, black women are not
only seen as prima facie unrapable because of stereotypes about their sex-
ual aggressiveness and unchasteness, but they are also commonly perceived
to be less credible than both white women and men.40 The range of avail-
able identities is narrow for black women victims of rape, then, although
differently narrow than it is for white women.41
As much as overdetermined cultural narratives constrain complain-
ants, they constrain defendants as well. The oversexed-black-Jezebel's male
counterpart is the black-beast-rapist, a caricature that could be made to fit
Mike Tyson snugly. In fashioning a strategy, his defense team was forced to
confront deeply ingrained stereotypes about the sexual aggressiveness and
depravity of black men. Arguably, no white defendant would have adopted
the strategy his counsel did.42 As one commentator put it, "Instead of play-
ing down the myth of the potent black man whose rampant sexuality
reduces him to little more than a beast of burden, his defense-disas-
trously-exploited the notion, and Tyson emerged as little more than an
incoherent bundle of drives with little capacity for self-awareness. An
animal in fact."43 Tyson began the trial as an object; he was reduced to his
sexuality, his skin color, and his violent profession.
It should be remembered that the complainant is evaluated only in
relation to the accused. If the defendant is black and the complainant is
white, the complainant is definitely rapable, but if both parties are black, it
depends on class, and perhaps on other considerations, such as reputation
39. Walsh, 25 Criminology at 154 (cited in note 26).

40. See Crenshaw, "Whose Story?" at 413: "Lest it be believed that such doubts have
been banished to the past, a very recent study of jurors in rape trials revealed that black
women's integrity is still very deeply questioned by many people in society. One juror, ex-
plaining why a black rape victim was discredited by the jury, stated, 'You can't believe every-
thing they say. They're known to exaggerate the truth.' " Crenshaw cites Gary LaFree, Rape
and Criminal Justice: The Social Construction of Sexual Assault (Belmont, Cal.: Wadsworth,
1991).
41. Marty Longelan, the former president of a rape crisis center, underscored the con-
straining impact of types and images, saying, "If you're 18 years old and you're naive and
you get youself in a particular situation and get raped, maybe the jury will believe you. If
you've been drinking or, God forbid, used drugs or are a single mother or any way other
than sort of a perfect, you know, unspoiled teen-ager, you may not be believed. What are we
really saying to women in this society-that if they're not perfect, they can be raped and
they can't do anything about it?" National Public Radio, "Morning Edition," 12 Feb. 1992.
42. The exception here might be a white athlete from a sport like hockey or boxing. I
doubt whether a professional tennis player, white or black, would use such an approach.
Here, considerations of race, class, and profession intersect. I thank Howard Erlanger for
pointing this out.
43. Independent (London), 13 Feb. 1992.
and even physicality.44 If the defendent is very large and a professional

boxer with a violent out-of-the-ring reputation, then he is prima facie a
rapist. If, on the other hand, the defendant is of a higher class than the
defendant and famous, he may be an important symbol for blacks and
whites alike (though for different reasons), which may militate toward
making the complainant unrapable. Tyson was indeed a symbol for many
African Americans, which explains why much of the organized African
American community, speaking largely through churches, supported him
during the trial. Evidently, however, his celebrity status and symbolic im-
portance were not able to overcome the other powerful considerations,
such as his apparent sexual depravity and Washington's innocence. Had
Washington been white, the situation would undoubtedly have been even
more hopeless for Tyson. Had he been white, the dynamic might have
been different again, making it more difficult for Washington to overcome
the stereotype of black women's promiscuity. One can similarly play with
the factors in the context of the Kennedy Smith trial and produce differ-
ent outcomes. What if Bowman had been younger and a duchess and he
not a Kennedy? Regardless of the "truth" of what happened on the beach
that night, it would have been easier to overcome the burden of proof. It is
impossible to be sure that the dynamics would work this way, but in light
of dominant constructions of race, gender, and class, it is certainly
plausible.45
I am not making factual claims that people who fit the above schema
are unrapable, or rapable, or rapists in reality, nor am I arguing that we
"ought" to see them this way. My point is simply that the parties in a rape
trial are likely perceived in the way I have described, by juries, judges, law-
yers, and the wider public, due to deeply ingrained stereotypes and myths.
These are exacerbated by the trial process and by media coverage, both of
which use images to persuade the audience as to truth, images drawn from
our stock stories about the types, traits, and tendencies that flow from an
individual's gender, race, and class. Once used, they become the basis for
other representations, in a kind of representational recycling process.
Lawyers are not the only, nor are they the most devoted recyclers.
Both trials were the subject of relentless media coverage, although no tele-
vision camera was permitted at the Tyson trial. For example, the trauma of
Patricia Bowman's experience, as conveyed in her testimony, seemed en-
44. The physical comparison of Tyson and Washington could not have been more
dramatic. In an article for the Daily Telegraph, 26 Jan. 1992, at 19, Charles Laurence said of
Tyson, "close up, he is simply huge. He kept rolling his battering-ram head, as if the mighty
neck muscles were cramping his windpipe." In every photograph or film I have seen of
Washington she appears tiny, young, and feminine.
45. Black men convicted of raping white women still receive the heaviest sentences of
any sexual assault defendants. See Marlene Stein Wortman, ed., 1 Women in American Law
247 (New York: Holmes & Meier, 1985). See also Jennifer Wriggins, "Rape, Racism and the
Law," 6 Harv. Women's L.J. 103 (1983).
tirely overwhelmed by the gamesmanship of the trial and the task of image
management. In the courtroom, every participant seemed to know that
playing into, or overcoming, popular conceptions about gender and sexu-
ality was the only way to persuade the jury of guilt or innocence. At the
same time, the portrayal of the trials to the general public was another
kind of image game. The media had an enormous impact on how the par-
ties were perceived: they controlled the camera angles, chose who to inter-
view, determined what questions to ask and, most important, provided
daily interpretations of how the trial was proceeding. In Bowman's case,
the purple smudge that covered her television image, ironically used for
her protection, left an impression that she was a diffuse, sloppy image that
compared badly with Smith's clean cut self-presentation. Lawyer-commen-
tators were hired to assess each day's proceedings, and for many people,
their views passed for the reality of what occurred in the courtroom.
This was true for both the Smith and Tyson trials, and was perhaps
more powerful during the Tyson trial, since the public had no direct access
to the proceedings. Commentators evaluated performances as they would
an NFL game, as if, after the verdict, everyone would good-naturedly shake
hands and head to the showers.46 The participants distanced themselves
from the events they were covering, exempting themselves from any re-
sponsibility for the reality they helped to create. Here we had layer upon
layer of interpretation and construction: lawyers, boxing promoters, minis-
ters, "experts," all consciously manipulating representations of male and
female sexuality, to construct competing truths about what "happened"
either at the Kennedy Estate or in the Tyson hotel room.
If the process of image construction sounds too abstract and attenu-
ated to have real effects, there is sociological evidence to support the prop-
osition that it does impact attitudes. For example, Joyce E. Williams's
study of public attitudes about rape revealed that views about "natural"
male and female sexuality influenced the respondents' willingness to be-
lieve victims' allegations that they were raped. "The most reliable indicator
of attitudes about rape for Anglos is apparently the degree to which they
hold attitudes that place the responsibility for rape on women, attitudes
which reflect skepticism about the legitimacy of rape, and which accept it
as a not unexpected outgrowth of the dynamics of male-female sexuality."
The study found that "these prejudicial attitudes were prevalent in this
middle class sample and they were significantly linked with conservative
46. The presence of sports metaphors to evaluate the performance of the lawyers in the
coverage of the Tyson trial was both amusing and disturbing. Diane Sawyer acknowledged
this while covering the trial for ABC News, 7 Feb. 1992, when she interviewed a writer from
Sports Illustrated about how "each side" of the trial was doing: "I suppose there is an unfortu-
nate tendency in these trials to follow them as sporting events, and to report on them as
they progress. Perhaps that's encouraged by television. It's not a very good idea." Ms. Saw-
yer then went on to do exactly that.
attitudes about rape."47 Williams also cited earlier studies indicating that
institutional responses to rape victims were influenced by the concept of
an "ideal" or legitimate victim.48 The need to conform to a believable
"type" in order to be believed, she found, influences not only juries and
judges, but helps determine in the first place which cases are considered
"prosecutable," setting in motion a filtering process throughout the crimi-
nal justice system.49
Despite the difficulty of empirically testing how stereotypes affect jury
behavior in the context of a trial, it appears to be widely accepted by law-
yers that both defense attorneys and prosecutors orient their strategies
around just such stereotypes. One Washington lawyer, referring to the de-
piction of Tyson as a sexually aggressive brute, commented, "You've got to
play the hand that's dealt you. It would have been better to have Mike
Tyson look like some minister from some Baptist church, but the fact is
he's a fighter. It looks like that strategy bombed now because we've seen
the verdict."50 Here the strategy might have lost the case, but the imagery
of the brute and the innocent may have nonetheless been believed.
These two trials, like Forster's novel, reveal a dynamic between the
discourses of gender, race, and class that depends on and reinforces stereo-
types of female passivity, aggressive black male sexuality, and the vulnera-
bility that accompanies social inferiority. Both the complainant and the
victim are subject to categorization by others (lawyers, judges, the media),
just as Adela and Aziz had been subject to categorization within the dis-
course of white colonialism. It is largely white men who benefit from rape
and the threat of it, regardless of the outcome of particular trials, because
as a context, it serves to discipline the behavior and limit the identities of
those with less power than them. This dynamic exists outside the pages of
fiction and has real effects. As we have seen, it can control the strategies of
the lawyers, the interpretations of the jury, and the message that trials
send to the public. Highly publicized rape trials reveal the dangerous ap-
peal of playing to stereotypes (Tyson's strategy) and the near impossibility
of avoiding them (Bowman's portrayal).
I do not mean to suggest that the process is entirely determined but
simply that these considerations limit and constrain the parties in rape
trials and send disciplinary messages to the broader audience. Highly pub-
licized rape trials often reinforce the message that women should take pre-
cautions against natural male sexual aggression. Although many people
think this is not an entirely bad piece of advice, the assumptions on which
it is based and the effects it has on both women and men are deeply prob-
47. Joyce E. Williams, "Secondary Victimization: Confronting Public Attitudes about

Rape," 9 Victimology 66, 76 (1984).
48. Id. at 68.
49. Id.
50. Boston Globe, 12 Feb. 1992, quoting Greta Van Sustern.
lematic. The Smith and Tyson trials arguably reinforce the notion that
women who violate social convention either expect or want what they get
and have no business crying rape afterward.51 Ideas like this are the prod-
uct of the socialization process that Winkler identified in Longus' Pastoral,
and they depend upo:- an artificially firm line between seduction and rape,
just as Rooney argued in her analysis of Tess. Male aggression is expected,
and women can either consent or resist. Quite paradoxically, women are
also expected, despite their passivity, to be capable of real strength (this is
reflected in the belief that they could stop men if they really wanted to). In
this view, femininity is comprised of a strange mix of seductiveness, passiv-
ity, and aggression. Aside from ignoring myriad alternative understandings
of women's sexuality, this view places responsibility for sex squarely and
exclusively on women and makes their character the focus of legal inquiry.
Both women and men are conscious that very specific ideas about
gender, race, and class provide a framework for their social interaction,
and they behave accordingly. Women know when they dress in a particu-
lar way that some men might consider them to be "provocative" and may
feel entitled to treat the style of dress as permission for sexual aggression.
Of course women may nonethless dress "provocatively," either in defi-
ance, or because they feel it is their right, or they may avoid it precisely
because of the male behavior it might provoke. The same is true of any
behavior that violates social convention-the decision to go to a bar
alone, for example, or to walk alone at night. And representations are
understood as more than reflections of reality; they have a normative func-
tion. Implicit in any seemingly neutral portrayal of how men and women
"are" is an argument about how they "should" be. The point is that we
are all disciplined by this system. There are rewards for playing along and
penalties for breaking the rules.52 In addition, there is a subtle but
51. The argument that women who step out of prescribed gender behavior should not
be surprised if they are raped sounds rather extreme. It is voiced, however, even by those
who call themselves feminist. See Camille Paglia; "Rape and Modern Sex War," in Camille
Paglia, Sex, Art and American Culture 52-53 (New York: Vintage Books, 1992): "Every wo-
man must take personal responsibility for her sexuality, which is nature's red flame. She
must be prudent and cautious about where she goes and with whom. When she makes a
mistake, she must accept the consequences." Even for those who think an "assumption of
the risk" defense for rape is untenable, the view that women ought to know better than to
take risks may infect the assessment of credibility or seep into a juror's determination of
whether she consented. But what is most disturbing about the assumption of risk approach
is that it assumes the inevitability of male sexual aggression and treats women as the appro-
priate bearers of that risk. The representation of rape as the natural consequence of risk
taking allocates all the burdens of existing social relations to women without any suggestion
that a different allocation is possible.
52. For an argument in the same genre about the disciplinary effect of sexual abuse see
Duncan Kennedy, "Sexual Abuse, Sexy Dressing and the Eroticization of Domination," 26
New England L. Rev. 1309 (1992). Kennedy understands "disciplinary" in the sense that
abuse functions to enforce patriarchal social norms which include norms about dressing,
and other more general notions of what men and women should be like. Although there is
much in his article with which I take issue, Kennedy's view of how discipline works and his
profound harm that flows from a failure to question and challenge prevail-
ing views about gender, race, and class. One might be led to believe that
stereotypes are in fact inevitable and that they correspond to the full range
of people's experiences and identities. Instead of looking for opportunities
to crack the foundations of the controlling framework, one might be dis-
couraged into believing that reversals and subverting moves are not possi-
ble. The power of representation reaches its height somewhere in this
vicious circle of consciousness control, where social construction is mis-
taken for nature and interpretation masquerades as truth.53
The set of relationships and scripts described above means that wo-
men and men of color face a very limited range of available identities they
can "safely" occupy in rape trials. And even if they choose wisely, they
cannot control how they will be perceived by the audience. The deeper
and perhaps more frightening problem is that neither they nor their attor-
neys "choose" their identities in any meaningful way, because stereotypes
and scripts provide the context into which the parties will be inserted. A
rhetoric of choice overstates the degree to which any participant actually
controls images. Kimberle Crenshaw argues that a framework of "domi-
nant narratives" mediates witnesses' credibility at rape trials, which "re-
flects a gendered zero-sum equation of credibility and power. The routine
focus on the victim's sexual history functions to cast the complainant in
one of several roles, including the whore, the tease, the vengeful liar, the
mentally or emotionally unstable, or, in a few instances, the madonna."54
Expecting rape trials to afford society an opportunity to explore and re-
create male and female sexuality might be asking too much, but these trials
even fail to permit people to escape from the most invidious of stereotypes.
Worse still, their most lasting impact may be as a lesson in gender, race,
and class hierarchies.55 If this seems bothersome and problematic, perhaps
a bit extreme, it is because we like to think that facts alone, not types, roles
and scripts, determine legal outcomes.
description of dress practices as a sign system that can also be a site of conflict seems consis-
tent with my argument here.
53. One of the negatives of categorization is that it affects social attitudes in general,
even the self-image and behavior of the people who internalize ascriptions. Social science
supports the view that people tend to categorize others in order to interact with them and
that labeling and treating people in a particular way can lead to them conforming to the
description. See, e.g., David Sudnow, "Normal Crimes," 12 Soc. Problems 255 (1965);
Thomas J. Scheff, Being Mentally III: A Sociological Theory (Chicago: Aldine/Atherton, 1971);
Walter R. Gove, The Labelling of Deviance (Beverly Hills, Cal.: Sage Publications, 1980).
54. Crenshaw, "Whose Story?" at 409 (cited in note 38).
55. When I say or imply that stereotypes are reductive or work against the interests of
women and people of color I do not mean that their interests are the same or even that we
can always know what they are. And it's not that the stereotypes are necessarily "damaging"
or "against their interests." It might be otherwise in a different culture or context. I am
merely arguing that in this culture and context the stereotypes about women and black men
that I have critiqued have a particular historical meaning and have successfully worked to
maintain their position of social inferiority.
I have argued that law is culture and ought to be subject to the cul-
tural criticism usually reserved for the arts. But even if the reader believes
that law is different from culture or that legal representations affect social
attitudes less than do other cultural representations, there are still reasons
to take my arguments seriously. As coverage of the Smith and Tyson rape
trials demonstrate, representations of rape in one trial may directly influ-
ence other trials. The two cases were endlessly compared to each other by
the media, lawyers and academics.56 Washington was a "better," more be-
lievable victim when contrasted with Bowman. Perhaps her portrayal of
herself as an innocent was as much a response to the Kennedy Smith trial
as it was an accurate portrayal of her identity. And Tyson the fighter, sur-
rounded by parasitic promoters, looked even more brutish and unsympa-
thetic compared to Smith, the golden boy, surrounded by his loving
family. In a strange way, Tyson's uncanny incarnation of the black-beast-
rapist further vindicated the verdict on Smith, who seemed, compared to
Tyson, definitely not to be the kind of man who rapes. The trials were also
directly affected by the Clarence Thomas hearings, which themselves were
fertile ground for representations of race and gender. Tyson supporters
offered Washington one million dollars to withdraw her complaint, advis-
ing her to "take a lesson from what happened to Anita Hill."57 Presuma-
bly, Hill had come out of the hearings damaged-depicted by the Senate
Judiciary Committee members as delusional, vindictive, and a puppet of
white liberal interests-and she had betrayed her race. Tyson's supporters
were saying that the same fate awaited Washington if she refused the bribe.
And these are just the impacts we can document. Coverage of the two
trials may affect such things as the reporting of rape or the prosecutors'
willingness to take rape accusations to trial in similar circumstances.
In these allegedly postfeminist, enlightened times, it is considered
either hysterical or militant to insist that racial and sexual stereotypes per-
sist and continue to infect legal reasoning. But one need not go back very
far to see evidence of sexist ideology in common legal texts. In their 1973
book, Crimes of Violence: Rape and Other Sex Crimes, F. Lee Bailey and
Henry Rothblatt wrote authoritatively: "The average woman is equipped
56. See Keith Botsford, Independent, 11 Jan. 1992, p. 25. The lead for this article read,
"You've had the Supreme Court judge, you've seen the Kennedy nephew. Now, to shock
and bemuse you, the first big fight of 1992: the former world heavy-weight champion v. the
Miss Black America contender...." Although they were often compared, many commenta-
tors claimed that there was a wide disparity in coverage of the Smith and Tyson trials, which
they attributed to a variety of things, including the defendants' different races, the fact that
Smith was connected to the Kennedy family, and the reluctance of the media to be seen to
attack black men. See Washington Times, 14 Dec. 1991, at A-5.
57. Barbara Walters interview (cited in note 21). Washington said in the interview that
the people who offered her the money told her to say that she was "afraid because of what
happened to Patricia Bowman, that I was afraid because of how Anita Hill was exploited."
The Reverend T. J. Jemison, President of the National Baptist Convention, U.S.A., has
been accused of making the offer. See N.Y. Times, Sat., 1 May 1993, at A-10.
to interpose effective obstacles to penetration by means of the hands,

limbs, and pelvic muscles. Indeed many medical writers insist that these
obstacles are practically insurmountable regardless of the usual relative dis-
proportionate strength between man and woman."58 On this reasoning, all
successful penetration is necessarily consensual. Although 20 years have
passed, the law students exposed to such teachings are the judges of today.
Despite undeniable progress, a lack of comprehension and awareness still
plague judges, lawyers, jurors and the public. "Despite rape shield laws and
a degree of progress in the courtroom treatment of rape victims, old atti-
tudes linger and it is often the victim who is on trial.... Attorneys and
judges make sexist comments about the victim's appearance and physical
attributes. The judiciary is insufficiently informed about current data re-
specting the nature of the crime of rape, the psychology of offenders, the
long term psychic injury to rape victims, and the prevalence and serious-
ness of acquaintance rape."59 If for no other reason than to avoid contrib-
uting to these phenomena, lawyers should take seriously thoughtful
critiques of representation in legal contexts.
And I go further still. Lawyers must take responsibility for their role
in the use of representations that perpetuate invidious stereotypes. Like
authors, lawyers cannot claim a critical distance from their work. In an
important sense, they create different versions of reality and the most per-
suasive version is treated as "truth." Real consequences flow from deeply
ingrained biases that lawyers may play on. Studies comparing sentencing
(although not conviction rates) for sexual assaults committed interracially
with those committed within the same race reveal that significantly har-
sher penalties were imposed on blacks who sexually assaulted whites than
on blacks who assaulted blacks.60 As mentioned earlier, sexual assaults
against black women are considered less serious than those committed
against whites. I recognize that this way of thinking represents a real chal-
lenge to the traditional notion of lawyering. Many would argue that a law-
yer's duty is precisely to play into stereotypes to which a judge or jury will
respond. In other words, they owe a duty to their clients, and not to soci-
ety in general. The symbolic world of representation, the construction of
gender, race, and class-all of this is beyond the competence and the re-
58. F. Lee Bailey & Henry B. Rothblatt, Crimes of Violence: Rape and Other Sex Crimes
277-78 (Rochester, N.Y.: Lawyers Co-operative Publishing Co., 1973).
59. Maja Hanks, "Liability for Rape," in Carol H. Lefcourt, ed., Women and the Law
S 15-03 1 2 (New York: C. Boardman, 1990).
60. Walsh, 25 Criminology at 161 (cited in note 26). See also numerous studies and
statistics cited to the same effect by Susan Brownmiller, Against Our Will 236-37 (cited in
note 36). Interestingly, and contrary to what happened to Tyson, the studies revealed that
blacks who assaulted blacks received the most lenient sentences. Tyson's sentence may have
had to do with a number of factors, including his celebrity status and the need to make an
example of him. His cynical defense strategy probably did not evoke any sympathy when it
came to sentencing either.
sponsibility of lawyers. At a minimum, however, identifying the represen-

tational dynamic in a legal context might prompt a healthy
reconsideration of precisely this issue.
IV. RESISTANCE
As many of the essays in Rape and Representation suggest, whether a

woman's behavior during or following a rape is passive or whether it
amounts to resistance depends on perspective and interpretation. Shifting
perspectives may alter one's reading of a novel or a trial. For example,
although we tend to see complainants in rape cases as "victims," and
although prosecutors perceive this characterization to be in their interests
in terms of obtaining a conviction, both Bowman and Washington were
arguably at their most powerful when they publicly accused their assail-
ants. This may be true despite the fact that any time women accuse men of
sexual misconduct, it threatens to destroy the women as much as the
men.61 Bowman and Washington confronted both a legal system that is
infamous for its mistreatment of alleged victims, and a hungry, voyeuristic
media anxious to publicize the intimate details of people's lives. In this
light, their accusations were bold indeed. Although one reading of Bow-
man's behavior is that she accused Kennedy Smith because of his famous
family, another, equally plausible, and more empowering reading is that
she proceeded in spite of the Kennedys' political clout. A similar set of
disincentives faced Washington, including the risk of alienating the black
community and being accused of bringing down a black role model.
Analyzing the trials in terms of resistance sheds an entirely different
light on what they say about women. Such a perspective shift is exactly the
kind of methodology used by Silver and several other authors in Rape and
Representation to counter women's construction as passive, and it brings to
the surface men's reactions to women's assertion of power. In the context
of the rape trials, the defense interpreted the accusations, not as resistance
or a refusal to be silenced but as greed, vengeance, or psychosis. Washing-
ton was a golddigger (like Robin Givens, Tyson's ex-wife, had been) and a
publicity seeker. Bowman was angry at men and unstable. Thus, even
when women assert their subjectivity and insist on their perspective, there
are myriad representational techniques for dismissing them as out of con-
trol.62 Being accustomed to this hystericized view of women makes it diffi-
61. For example, Anita Hill was subjected to ridicule by the senators, and by much of
the public. She was accused of being vindictive, crazy, a lesbian, and a tool of liberal white
interests. See Wahneema Lubiano, "Black Ladies, Welfare Queens, and State Minstrels: Ide-
ological War by Narrative Means," in Morrison, Race-ing Justice 323, 340-42 (cited in note
10).
62. This is not unlike the behavior of the male characters in A Passage to India, who
bonded together across race lines in response to the accusation of rape. See Silver's analysis
cult to see them as powerful, resisting subjects, but consciously reading a

text for signs of women's resistance reveals that they do assert subjectivity,
even in the midst of contexts in which they are habitually objectified.
Merely making the accusations, and pursuing them in court (Silver would
call it "speaking rape" as Adela did in A Passage to India) is a refusal to be
silenced.
Of course, recognizing signs of resistance does not erase the effects of

objectifying and reductive representations. In fact, the form and substance
of the resistance may itself be influenced and constrained by the dominant
discourses of race or gender. Resistance can appear in many forms and be
partial; it does not necessarily require a wholesale rejection of all stereo-
types or scripts. It may amount merely to the suggestion that other identi-
ties are possible, without displacing existing ones. The fact that
Washington and Bowman came forward, although it forced them to re-
create their victimization, can be interpreted as a sign of their strength.
Understanding Washington's testimony in terms of resistance, how-
ever, causes one to rethink her portrayal as a child or an innocent. What
does it mean that she was "speaking rape" while playing, arguably, a fe-
male stereotype? Do these images cancel each other out? Are some repre-
sentations more politically useful or more politically correct? Ought we to
worry about the extent to which people can play with images, identities,
and pervasive understandings of sexuality? Or does this presuppose too
much "control" over representation? Is it possible to flip every negative
representation on its head by simply looking at it differently and declaring
it to be an example of resistance? If so, what are the political consequences
for feminism?
CONCLUSION
The answer to the last question depends in part on how much stock
we put in the power of alternative readings, like those offered by the au-
thors in Rape and Representation. If their only effect is to suggest that virtu-
ally any interpretation is possible, then their political impact, although
critical, is very limited. The first steps in overcoming the disciplinary im-
pact of rape's representations, be they in literary or legal discourse, are to
identify and demystify them, to explore sexual violence from the perspec-
tive of women, and to upset conventional understandings of race, class,
and gender subjectivity. But the next task, lest this project lead down a
destabilizing interpretive road where we merely recognize that meanings
shift endlessly with context, is to devise alternative representations, new
of Fielding choosing Aziz when forced to take sides between Aziz and Adela, in Rape and
Representation at 124.
images and narratives, that enlarge the spectrum currently available to

men and women alike.
The concern about endless, and potentially conflicting readings

emerges from the trials, just as it does from the collection of essays. The
more dimensions or axes of analysis one employs, the greater the variety of
meanings one produces. Add to this the fact that there is no single femi-
nist approach to the representation of rape (since, as noted above, what
some would read as an inscription of passivity others would call resistance)
and the result is a proliferation of interpretations, and no clear method for
choosing among them. This very unsettling result seems to follow from the
insight that representations are built on and in relation to each other, and
that to interpret them at all is to re-represent them.
One problematic conclusion might be that conflicting interpretations
will lead to political paralysis. This is an important by-product of a book
like Rape and Representation; yet only in the book's concluding chapter, in
Higgins's own essay, does she begin to explore the possible incompatibility
of multiple readings and feminism.63 Adding race and class analysis will
inevitably complicate readings devoted to gender, which might obscure
meanings that seemed clear at first glance. This process frustrates any at-
tempt to isolate a single source of oppression, which poses problems for
feminists and others who find it difficult to maintain a political agenda in
the face of an increasingly amorphous or multidimensional enemy. It also
points, however, to the importance of developing sophisticated under-
standings of how different forms of oppression, exclusion, and repression
interact.
Lawyers may resist the critique offered here because, they might say, it
raises only problems and offers no resolution. Even if one is willing to see
legal argument as an important form of meaning-making and engage in the
process of disentangling layers of socially constructed meaning, one discov-
ers that they are built on other layers of socially constructed meaning. At
this point one is likely to be confronted with the postmodern insight that
the "real" or the notion of an original does not preexist its representa-
tion.64 Higgins and Silver's book implicitly argues that there is no "authen-
tic" male or female sexuality, only the "effect" of authenticity produced by
representations.
I believe that the two rape trials can be read to make the same point.
But the absence of a theory of authenticity (the idea here would be that we
63. Lynn A. Higgins, "Screen/Memory: Rape and Its Allies in Last Year at Marienbad,"
at 318: "So then what of the dilemma of the critic caught between the postmodern text and
feminist interpretation? Are the two, as Alice Jardine worries, oxymoronic? If so and if keep-
ing rape literal is our feminist goal (as it must be in nonliterary life), we have to be
antipostmodern."
64. Jean Baudrillard, "Simulacra and Simulations," in Mark Poster, ed., Jean Baudril-
lard: Selected Writings 166 (Stanford, Cal.: Stanford University Press, 1988).
are just "getting gender, race, and class wrong" or representing it "inaccu-
rately") does not blunt the critique of existing stereotypes. It is possible to
be against dominant stereotypes because they have historically been used
to reinforce social hierarchies without substituting counter-stereotypes or
even knowing what the alternatives might be.65 The problem is not so
much that the stereotypes are necessarily "false," but that they are
deployed by some people to keep others in a position of social and political
inferiority-to make only some people rapable. Their meaning, not their
mere existence, is the issue. I acknowledge that the proposition that there
is no "reality" beneath representation is viewed by many people as destabi-
lizing. Still, even if one resists that proposition, preferring instead the no-
tion that there is an authenticity to gender or race or class that might be
accurately represented, it should be clear that prevailing stereotypes get in
the way.
One might object that if everything is a construction, neither lawyers
nor anyone else for that matter can possibly bear any responsibility for
portraying people as they "really" are. Even if there were a reality to repre-
sent, I have already acknowledged that attempting to "control" the por-
trayal of a client's identity cannot work, since the process of portrayal is
mediated by a multitude of intervening forces. It would not be surprising
for lawyers to throw up their hands at this point and return to the safe
ground of traditional practice and allegiance to their clients, ignoring is-
sues of race, class, and gender. But this is unnecessary, and certainly pre-
mature. Lawyers, of all people, understand that the "truth" of a case is
often elusive and that what matters is what people believe. Even when the
"facts" are indisputable, making meaning out of those facts is their job.
Advocacy, the purpose of which is to convince a judge or jury that one'
interpretation is correct, is their business. If anything, understanding the
dynamic among representations of race, class, and gender provides lawyers
with more of the tools they have been trained to use and broadens the
stories they can tell. Whether they do so in a socially responsible way or
not, and what that would mean in a given context, is a separate question
that will require much discussion.
Another tension that emerges from my analysis of both the essays and
the trials is the importance of trying, and the inevitability of failing, to do a
"complete" reading. None of the essays includes all the perspectives it
could, nor does my interpretation of the rape trials. It is critical to examine
events from a variety of locations, as we are all limited by our context and
particularities. This is not an attempt to avoid responsibility, nor is it a
65. One might object here that in order to critique existing stereotypes, one must have
an alternative reality in mind, a race- and gender-neutral model, for example, based on the
notion that men and women, or white and black people, are fundamentally "the same." I
am not arguing against the notion of differences, only against the use of stereotypes to
maintain hierarchies based on gender, race, and class.
self-deprecating qualification meant to insulate my essay from critique. It

simply amounts to an acknowledgment that no single analysis can hope to
capture the complexity of existing representations. Perhaps all we can ask
of anyone-authors, lawyers, judges, the public-is to acknowledge that
single limitation and to entertain the possibility that people might defy
familiar scripts and stereotypes. If we cannot escape categorizations based
on gender, race, and class, then we should at least recognize when they are
present, analyze their impact, and take responsibility for their deployment.
This is not a program but a necessary starting point if we are to move
beyond the reductive myths and stereotypes we use and reuse, both con-
sciously and unconsciously, every day. To do all of this, while not losing
our sense of the literal, real violence in rape, is a challenge for those in law
and literature alike.

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American Bar Foundation

For lawyers, "representation" has traditionally described their obliga-

1993 American Bar Foundation.

the traditional or popular interpretations of their chosen texts and read

In "The Education of Chloe: Erotic Protocols and Prior Violence,"

On the surface, Daphnis' teacher Lykainion is a messenger from the

rape. This gap or elision in Forster's novel leaves an interpretive space

is that rape depends on and reinforces a rhetoric of difference (between

II. TWO TRIALS

The Tyson Case

20. Alan Dershowitz, Tyson's lawyer on appeal, described Tyson's interpretation of

such contests suggest. However, as much as these pageants depend on our

It is inescapable that Washington was helped enormously by Tyson's

The William Kennedy Smith Case

Stereotypes worked in an analogous way in the Smith trial, with the

whose child was clear evidence of sexual activity. Had allegations of

Considerations of social class also had an impact on how Bowman

Smith, the image of Bowman as a promiscuous, plotting social climber at-

The combination of race, class, and gender representations in the tri-

The disciplinary function of representations about women's sexuality

saults on members of "socially inferior" groups as less serious than assaults

39. Walsh, 25 Criminology at 154 (cited in note 26).

and even physicality.44 If the defendent is very large and a professional

47. Joyce E. Williams, "Secondary Victimization: Confronting Public Attitudes about

to interpose effective obstacles to penetration by means of the hands,

sponsibility of lawyers. At a minimum, however, identifying the represen-

As many of the essays in Rape and Representation suggest, whether a

cult to see them as powerful, resisting subjects, but consciously reading a

Of course, recognizing signs of resistance does not erase the effects of

images and narratives, that enlarge the spectrum currently available to

The concern about endless, and potentially conflicting readings

self-deprecating qualification meant to insulate my essay from critique. It

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