Vol. 10 No. 4 (May 2000) pp. 312-313.

RAPE AND THE CULTURE OF THE COURTROOM by Andrew E. Taslitz. New York: New York University Press, 1999. 210pp.

Reviewed by Adelaide H. Villmoare, Department of Political Science, Vassar College.

Perhaps British legal scholar Carol Smart (1989) is right when she argues that feminist law reform not only may fail to empower women, it may do more harm than good. Certainly what appeared to be significant changes in rape laws across the United States have not reaped the benefits that their proponents anticipated. It is possible that rape complainants are treated more harshly during trial than they used to be. Despite the reforms, Andrew E. Taslitz, Professor of Law at Howard University and criminal prosecutor, acknowledges the ways in which women rape survivors continue to be disempowered in trials. Although confronting the failures of the reforms, he does not continue along Smart's path. Rather, he proposes specific procedural reforms to overcome the silencing of women during rape trials. His proposals pose a challenge to those who, like Smart, would decenter law or strategically turn to alternative forums of contestation, and they have a certain real-world appeal.

Moving between cultural/linguistic constructions in society and those in the courtroom, Taslitz argues that rape stories persistently undermine rape law reform with devastating consequences for the victims. He contends that patriarchal stories and a gendered adversarial system act to reaffirm traditional beliefs that women lie about rape, mistake consensual sex for rape, or are unable to perceive reality. Jurors and defense attorneys bring to trials a framework of understanding and legal tactics that make rape victims unbelievable. At the heart of the book are: (1) an analysis of story telling and legal tactics that rests on popular cultural stories and highly publicized rape trials; (2) suggestions to move away from particular adversarial procedures; and (3) a broader appeal for the strengthening of women's voices.

He begins with a characterization of four dominant cultural rape narratives that jurors and lawyers take into court: "silence," "bullies," "black beasts," and "a little more than persuading" (p. 19). These themes are drawn from an eclectic set of sources: films like "The Little Mermaid" and "Back to the Future" and books like THE CONFESSIONS OF NAT TURNER and Freud's THE PSYCHOLOGY OF EVERYDAY LIFE. It is not clear how he decides on these particular four themes/stories or selects the sources to explicate them. Further explanation of his method and approach to his research might make help the reader more fully understand the value and weight of his choices. Taslitz believes that these are the four major cultural rape narratives which jurors bring into the courtroom and which form a basis for jurors' deliberations. Drawing on those narratives, he analyzes a rape case from Wales, the Mike Tyson trial,

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and the Glen Ridge jury decision. From trial testimony and jurors' verdicts he determines that at least one of the rape stories deeply influenced the jurors' determinations and the trial outcomes in each of these instances. The argument about the power of cultural rape stories is valuable and potentially persuasive. It is important to recognize that trials do not take place in cultural vacuums. They occur in real society where we see movies, watch, listen to talk radio, read newspapers, magazines, books, and where we tell our own stories about rape. It is not clear, however, if the four rape narratives are, at least in part, derived from the three trials he examines. If they are, it is difficult to see how the cultural rape stories have an independent impact on jurors. The easy fit between the four narratives and these cases could possibly be circular: did Taslitz look at the cases, construct the four themes, and then conclude they explain jurors' decisions? Further discussion of how he arrived at his four rape narratives and their application could have removed this suspicion from the reader's mind.

The final section of the book advocates controversial court reforms to overcome the subordination of women in rape trials. Taslitz makes a strong, if provocative, case for "permitting uninterrupted victim narratives on direct examination' (to allow women their own voices during trial), "using empathic experts" (to move juries beyond the four cultural rape narratives that define their thinking on the subject), and "using 'intermediaries,' neutral professionals who 'translate' defense counsel's questions into less abusive forms" (to eliminate the gendered silencing of women that occurs in the adversarial process, especially during cross examination). These reforms should diminish the power of the dominant rape narratives, encourage new, diverse, complex rape stories that more fully belong to the women telling them, and reduce the adversariness of trials so that the victims' narratives will be more believable to juries and the public.

The reforms are intended to expand women's voices in court, to render more meaningful their participation in rape trials, and to supplant dominant cultural rape narratives that subjugate women (p. 140). From a feminist perspective Taslitz's goals are imaginative and laudable. One can, however, hear the objections to his proposals, because he couches them in an equal protection position, as calls for special protection or as cries of women ever clinging to victim status. He is aware of the potential for, or certainty of, these reactions and works his way through them to make a compelling case for adoption of these changes.

Given the intensification of criminal justice control over women, will his suggestions to empower women become primarily a symbolic attack on a system entrenched against women not only in rape cases but also in those of domestic violence and in the dramatic growth of incarceration of women for non-violent offenses? Carol Smart's warning to look beyond courts to effect progressive change should caution us against embracing legal reforms as a way to truly empower women.

REFERENCE

Smart, Carol. 1989. FEMINISM AND THE POWER OF LAW. London: Routledge.