78 St. John's L. Rev. 1119 (2004)
Better Dead than R(ap)ed: The Patriarchal Rhetoric Driving Capital Rape Statutes

handle is hein.journals/stjohn78 and id is 1131 raw text is: BETTER DEAD THAN R(AP)ED?: THE
PATRIARCHAL RHETORIC DRIVING CAPITAL
RAPE STATUTES
COREY RAYBURNi
It is true rape is a most detestable crime, and therefore ought severely
and impartially to be punished with death; but it must be remembered,
that it is an accusation easily to be made and hard to be proved, and
harder to be defended by the party accused, tho never so innocent.
Sir Matthew Hale, 1676
Our society has the feminist movement to thank for all of these
structural reforms. But the most important change brought about by the
women's movement is abandonment of the antediluvian notion that rape
is 'a fate worse than death.' Nothing is worse than death ..2
Susan Jacoby, 2002
INTRODUCTION
Hale's oft-cited words are more famous for their bearing on the
procedural aspects of rape law,3 but it is the first part of the quote that
relates to this article. While little has changed since Hale's time in how a
rape trial proceeds,4 the application of the death penalty to rapists that he
1 Clerk, Hon. Michael J. Melloy, United States Court of Appeals for the Eighth Circuit.
J.D., 2002, University of Virginia School of Law; B.A., Political Science, 1999, University of
Iowa. I would like to thank Professors Anne Coughlin and Rosa Brooks for the ideas that
inspired this work, Andrew Peterson, Carolyn Bannon, and Ojen Sirin for helping me along the
way, Professor David Hingstman for teaching me so much, and Betty Yung for supporting me
throughout the writing process.
1 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROwN 634 (Philadelphia,
Robert H. Small 1847) (1736).
2 Susan Jacoby, Thank Feminists for Rape Reforms, BALTIMORE SUN, Aug. 13, 2002, at
SlIA.
3 Beverly J. Ross, Does Diversity in Legal Scholarship Make a Difference?: A Look at the
Law of Rape, 100 DICK. L. REV. 795, 806-07 (1996).
4 See Anne M. Coughlin, Sex and Guilt, 84 VA. L. REV. 1, 12-13 (1998) (explaining that
during Hale's time only serious forms of physical violence were regarded as rape). This is not to
say that rape trials have not been significantly reformed in the last four hundred years, but that
the actual proceedings still involve the same notions of consent and womyn still must prove
much more than victims of other crimes. Id. For an account of the reforms implemented by states

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