...complainant (2) plays many different characters throughout the course of the trial. Prewritten cultural scripts dictate her (3) lines. The setting is both the courtroom and the scene of the alleged rape as imagined by the jury. Unique to a rape "play," however, an accuser cannot be sure which role the jury will assign to her by the time it begins its deliberations. Is she to be cast as a whore? (4) A vengeful liar? A tease? Mentally unstable? If she has the "proper" background and the defendant is a stranger, can she play the role of an innocent Madonna whose perceived purity may result in the rarest of events: a guilty verdict?

While every trial has elements of theater, (5) rape and sexual assault cases are unique because they emphasize the gender performances of the accuser and the accused. Complainants who testify are not just recounting the events of the alleged rape. They are also defining the essential parts of their gender roles for the jury. Every statement, mannerism, action, and emotion of the accuser on the witness stand relays information about her gender to the jury. If the jurors deem a performance too emotional, they may assume the accuser is stereotypically hysterical and unreliable. If, however, she appears cold and calculating, the jury may believe she is a "gold-digger" using the criminal trial as a prequel to a lucrative civil suit. If she shows too much anger (as though it were possible for someone who has been raped to be "too angry"), the jury may see vengeance as her motive for "crying rape." Which predefined gender roles the jury assigns the accuser and accused during the trial are important in determining whose story the jury will ultimately believe.

At its core, a criminal rape trial taps into the linguistically and culturally founded beliefs of the jury in order to reach a desired outcome. In most cases of "simple rape," (6) as Susan Estrich has labeled acquaintance rape, the defense attempts to access certain meta-narratives about sex and rape to convince the jury that the alleged rape event was really consensual sex. These rape myths and the rhetoric of rape and sex, not statutory rules and procedures, are the critical pivot points for shaping the jury's decision. (7) The trial itself is like a play where the actors and their agents fight to define the roles and script utilizing these meta-narratives. As Stephen Schulhofer has written, "[s]ocial attitudes are tenacious, and they can easily nullify the theories and doctrines found in the law books. The story of failed [rape law] reforms is in part a story about the overriding importance of culture, about the seeming irrelevance of law." (8)

The William Kennedy Smith, Jr., Big Dan's Tavern, Central Park "wilding," and Mike Tyson trials, as well as the failed trial of Kobe Bryant, illustrate an important concept of law in America: the roles assigned by the media and jurors to the accuser and accused are fundamental to the outcomes of rape trials. When the defense attorneys for Kennedy Smith, Jr. successfully painted him as a respectable doctor from a good family and his accuser as an unstable money-grubber, the jury found him not guilty. (9) Kobe Bryant's defense team successfully deployed a similar strategy and his case did not even go to trial. (10) In the Big Dan's Tavern trials, the defendants were portrayed as wild Portuguese immigrants who represented a culture built on misogyny. (11) Similarly, the Central Park "wilding" cases were framed less as traditional rape cases than as general acts of violence by Black and Hispanic hordes against innocent, civilized New Yorkers who needed protection. (12) Mike Tyson was the embodiment of the wild man who could not be controlled by society's rules and the prosecution exploited that perception. (13) In each of these cases, and in most other rape trials in America, the outcomes have been determined not so much by specific evidentiary decisions and legal rules, but by utilizing the narrative structure most appealing to the jury. (14)

While feminist jurisprudential critiques and efforts at reforming rape law have focused on procedural and substantive defects of statutes and judicial decisions, (15) there is a more significant factor that determines rape trial outcomes: what this Article terms the "burden of performance." This burden, which will be described in depth below, is in addition to the burden of proof and persuasion already upon the prosecution. When complainants testify, they assume roles that put their gender identity into question. How they perform in these roles is fundamental to the jury's decision-making process. Defense attorneys use the predefined roles and certain rhetorical techniques to compare a particular complainant's experience with those in society's collective consciousness. (16) Specifically, the defense takes advantage of a jury's exposure to rape and pornography images and anecdotes. When a complainant is telling her story, she must impress a jury that has been inculcated with a lifetime of rape imagery and accounts, making the burden of performance a substantial impediment. Accusers must convince a jury, jaded by rape stories and pictures, that her story is "special" enough to warrant a guilty verdict. The end result is that prosecutions are doomed to fail in most situations. (17)

To understand rape law reform and its failure, it is absolutely essential to comprehend the unique performative problems that stifle efforts to reduce the occurrence of rape. Existing legal scholarship has ignored important developments in communication theory and has omitted significant considerations, contributing to the failure of reform efforts. As a result, existing feminist and mainstream proposals to improve American rape law are inherently suspect. To address this existing shortcoming, this Article offers new theories for analyzing rape trials and rape law derived from the burden of performance.

This Article argues that rape law reform must be fundamentally reoriented to address the problematics of performance and language that determine the outcomes of rape and sexual assault trials. Part I gives a brief account of the modern history of rape law reform and critique in the United States. Part II outlines the existing limited scholarship on representational and performative critiques of rape law. In Part III, the Article turns to a thought experiment derived from the scholarship of Jean Baudrillard that illustrates the unique nature of performances in rape trials as compared to other crimes. Part IV uses the hypothetical example in Part III to articulate and explore the concept of the burden of performance. In Part V, the Article focuses on the overriding factors that ensure the burden of performance will be insurmountable for most accusers. These impediments are derived from the scholarship on disaster pornography, sexual pornography, and the effect of the media's construction of rape, sex imagery, and myths. Finally, this Article offers some conclusions about how the burden of performance fundamentally alters the discussion of American rape law reform.

I. A BRIEF HISTORY OF RAPE LAW REFORM IN AMERICA

The history and details of America's attempts to reform rape law have been written about many times before, (18) so this section is brief. A popular notion in the mainstream American press is that rape law has gone too far, that the pendulum has swung from failing to protect rape victims (19) to targeting innocent men. (20) This viewpoint has been inspired by a backlash against political correctness and sexual harassment laws, as well as a general social move away from feminism. (21) Opponents of rape law reform have had incredible success in convincing America that rape law has drastically changed in the last thirty years so that it now covers conduct that should not be criminal. (22) The Dotson case, where the victim recanted her rape story years later, further fed the media's portrayal of the feminist agenda gone too far. (23)

Quite simply, the idea that rape law reform has overreached is a myth without any basis in fact. (24) While there may be successful prosecutions of innocent men, that would make rape law no different than any other area of criminal law. (25) To single out rape law as having gone too far, given its incredibly low prosecution and conviction rates, is a specious argument. In any given year in the United States, 250,000 (26) to nearly 900,000 (27) attempted or completed rapes occur. It is estimated that only sixteen percent of rapes and sexual assaults are reported to police. (28) According to a 1993 report, of the total number of reported rapes, only two percent resulted in conviction and incarceration. (29) Little has been altered in the substance and procedures of rape law in the last thirty years to justify the popular belief of radical change. (30) Rape conviction and plea bargaining rates have not substantially increased and most victories for reformers have been "symbolic." (31)

This is not to deny that rape law in America has gone through numerous evidentiary and substantive changes over a longer time frame. The traditional elements of the crime of rape throughout most of the twentieth century were (1) sexual intercourse; (2) between a man and a woman who is not his wife; (3) achieved by force or threat of severe bodily harm; and (4) without her consent. (32) The force requirement was a derivative of the older, and difficult to overcome, "utmost resistance requirement." (33) Even in the face of specific violent threats, consent could be given through "voluntary" submission to the rapist. (34) Thus, if a victim eventually gave up resisting, courts interpreted this as consent. (35) Even as late as 1973, a New York appellate court held that the utmost resistance requirement meant that the jury's vote to convict was improper. (36)

Feminists such as Susan Brownmiller and Catharine MacKinnon attacked these outcomes and helped lead an effort to reform rape laws nationwide. (37) In 1975, Michigan became the first state to adopt some of the policy changes suggested by feminists. (38) Feminists achieved victories by getting policymakers to eliminate: the requirement that an accuser have a witness to corroborate the rape, the instruction to jurors to treat the complainant with skepticism, and the admission of evidence of a victim's sexual history. (39) Other changes to the traditional definition included making the crime of rape gender-neutral, criminalizing all types of sexual penetration, and making rape within marriage illegal. (40) More recently, some jurisdictions have begun to eliminate the force requirement in response to feminist criticisms of rape law. (41)

However, as legislatures have broadened the definitions of rape, courts have continued to define rape narrowly. (42) Despite decades of advocacy efforts and awareness campaigns, juries continue to be skeptical of claims of rape and hold accusers to a higher standard than they do for other crimes. (43) Reforms have had no effect in some jurisdictions, while others have shown only modest progress. (44) What little success has occurred is largely attributable to increased cultural awareness of acquaintance rape rather than legal change. (45) In many states, a strict requirement that the accuser show the defendant used actual force to threaten her effectively blocks convictions even in extreme cases. (46) Most states do not recognize a verbal "no" by a complainant as determinative of non-consent. (47) Other states have maintained a variation of the resistance requirement that is often applied in the same way as its more stringent predecessor. (48) Consequently, while a formal "utmost resistance requirement" has been removed, it is de facto enforced by jurors and judges in rape trials across the country.

While the shortcomings of reform are significant, the problems of enforcement and application of the law stem from a different source. Specifically, the cultural, rhetorical, and performative issues in rape law continue to undermine efforts to deter and prevent rape. An important, but small contingent of legal and feminist scholars has explored these concerns in detail.

II. RHETORICAL AND PERFORMANCE CRITIQUES OF RAPE LAW

Traditional feminist jurisprudential critiques of rape law underestimate the role of language. (49) Instead, emphasis is placed upon the inherent patriarchal structures at play and the sexist statutes used to determine the guilt of the defendant. (50) In this way, critiques of rape trials are not substantially different than non-feminist critiques of other criminal trials. The focus is almost entirely on the "rules of the game" and the application of those rules, as opposed to the rhetoric and images integral to the outcome of the trial. (51) Under such a view, rape victims do not achieve justice because the laws, fact-finders, and procedures control and determine the outcome of rape trials. This is not to say that feminists fail to address underlying problems of patriarchal culture and the attitudes of judges and jurors. (52) However, those criticisms are usually limited to describing how culture shapes the law and decision-making of various actors in the rape trial. (53) This is quite different than criticizing the rhetoric, representations, and performances of the actors in the trial and those used by the media. As a result, the efforts to reform rape law described in the previous section have not focused on the linguistic elements shaping rape trial outcomes. (54)

Even when reform efforts have been designed to limit certain narrative strategies by the defense, as in the case of rape shield laws, attorneys have been able to accomplish the same goals through non-controversial lines of inquiry. (55) Instead of explicitly exploring an accuser's sexual history, a lawyer could re-victimize the complainant through subtle, but still dehumanizing, cross-examinations. (56) Most often, this process occurs through the defense using physical evidence like clothing and appearance to state what could not be expressed through direct argument. Showing the accuser's provocative lingerie can serve the same function as branding her a "slut." Talking about her actions leading up to the rape can serve to show that she was "asking for it," even without a thorough investigation of her sexual history. Though some reform has targeted rhetorical change, it has failed to address the problems in a systematic fashion.

Andrew Taslitz has identified "storytelling theory" as a method for better understanding what occurs at a rape trial. (57) However, his ideas on the communicative aspects of rape trials have been virtually ignored by the legal community. (58) Under Taslitz's theory, "the story of a case must be told in a way as to satisfy a jury's needs for narrative coherence and fidelity." (59) Coherence is the internal consistency of a story so that it is logical. (60) Fidelity is determined by how well the story appeals to a juror's sense of reality. (61) Storytelling theory requires that changes in underlying metanarratives be incremental because the new stories must replace the old while still maintaining a connection to the previous stories. (62) This means that feminist stories of rape can only be added piecemeal and cannot be presumed to win over jurors by force of argument alone. While I adopt a slightly different theory than Taslitz, his description of rape trials provides an excellent starting point for understanding how rhetoric determines jury decisions.

Taslitz identifies four underlying rape story narratives that dominate trials: silenced voices, bullying, black beasts, and a little more persuading. (63) The "silenced voices" narrative holds that rape victims' voices are effectively neutralized in the rape trial process. (64) The result is that victims' stories are lost in the procedure and arguments of the trial structure. Primarily, rape victims are unable to have their complex and nuanced tales heard in a meaningful sense by the jury. Instead, their stories are reduced to the basic cultural scripts of how the jurors believe rape occurs. This process extends from the trial to include media coverage of rape as well. (65) Complainant narratives are often reduced to sound bites and defense counsel tales are often prominent in news stories. (66)

The "bullying" narrative is an extension of America's culture of masculinity. (67) Taslitz argues that because male aggression is encouraged and rewarded by mainstream society, there is an acceptance of similar behavior in sexual conquests. (68) Occasionally, however, the bullying narrative can be used by the prosecution to effectively paint the defendant as the aggressor. The Central Park "wilding" story represents one such example where the media portrayed minority teenagers as bullies that needed to be controlled and punished. (69)

Taslitz's third narrative, "black beasts," is the one story that works exclusively for the prosecution. The concept of black beasts is derived from historical notions that Black men are walking phallic symbols who are dangerous to the community at large. (70) The black beasts narrative is best typified by the famous Scottsboro trials in the 1930s, where Black teenagers in the South were convicted for rape and sentenced to death. (71) Because they had allegedly attacked Whites, they were prime targets for the black beasts myth. After numerous appeals and three decisions by the United States Supreme Court, (72) the defendants were freed,-but they had served between six and nineteen years in prison. (73) The Central Park "wilding" stories were also indicative of the black beasts narrative, and the case demonstrates the way bullying and black beasts stories can intersect and reinforce each other. (74) The corollary to the black beast narrative is that Black complainants are viewed as effectively "nonrapable" and even less likely to be believed than their White counterparts. (75)

The fourth and final theme is "a little more persuading." This perspective equates rape with seduction. (76) The idea of "a little more persuading" can be found prominently in Sigmund Freud's belief, at least according to some scholars, that the unconscious causes an accuser to surrender to rape. (77) Under this view, Freud believed that if someone really wanted to resist a rape, she would, and the failure to do so was consent by the unconscious mind. (78) This narrative significantly contributes to putting the burden on complainants to show that they took every conceivable action to prevent being raped even when utmost resistance is no longer required by law. Men are protected under such a narrative because they are justified in exercising a little more persuasion in light of clear resistance and a firm "no."

Susan Ehrlich's scholarship supplements Taslitz's storytelling analysis through an understanding of "talk" about rape. (79) Ehrlich is not an American legal scholar, and her scholarship has been overlooked by legal scholars. (80) Ehrlich argues that "language is the primary vehicle through which cultural and institutional ideologies are transmitted in legal settings." (81) The statements and "talk" of witnesses are mediated and filtered through the legal, cultural, and institutional norms of the courtroom. (82) Because these underlying ideologies are heavily gendered, the "talk" of the courtroom reinforces and replicates the more systemic dialogue of patriarchy. (83) Under this view, language is not neutral and not all speakers are served equally in any given discourse. (84)

Ehrlich adopts a conception of the relationship between gender and language known as critical theory. (85) Primarily, she relies on the work of Deborah Cameron, who argues that linguistic practices inform and create social identities. (86) Using Cameron's theories, Ehrlich argues that gender identities are performative and that gender is not something people simply have, but rather something they constantly do by making linguistic moves. (87) Styles of communication, mannerisms, and ways of holding oneself all convey and form a gender identity. Within the legal sphere, the heavily coercive and rigid structures of law constrain these linguistic choices. (88) Accordingly, the law "has the capacity to impose and affirm culturally...

NOTE: All illustrations and photos have been removed from this article.



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