THE TRUTH BEHIND LEGAL DOMINANCE FEMINISM’S “TWO PERCENT FALSE RAPE CLAIM” FIGURE
Edward Greer* I. INTRODUCTION
For at least the last decade, Legal Dominance Feminism (LDF)
1 has been the predominant voice on sexual abuse within legal academia.
2 However, many of its empirical claims regarding the sexual abuof other feminist
academics,4 LDF has in recent years promulgated a series of social science myths about rape in the American legal system. Often resting upon a highly problematic methodology, LDF significantly misrepresents empirical reality. This Article attempts to demonstrate that the LDF discourse on rape is fundamentally flawed.
At the core of LDF discourse on rape is the proposition that “women don’t lie” about sexual abuse.5 The foundation for such a bold statement is the claim that false accusations of rape are very rare; specifically, its proponents claim that no more than two percent of such complaints are invalid.6 In an attempt to shift the laws governing rape to correspond with this purported social reality, LDF advocates shifting the burden of proof from the woman complaining of the alleged sexual wrong to the man defending against it.7 As discussed in Part III, changes to the legal definitions of rape and any corresponding shifts in the burden of proof are ill-advised and dangerous. Unlike those who oppose the LDF program because of its alleged “malebashing,”8 this Article concedes that were it empirically true that only two percent of those charged with rape were innocent, LDF’s solutions might represent a reasonable public policy. But if, as may well be the case, as many as a quarter of the men currently accused of rape are actually innocent
, then the goals of LDF are truly destructive. First, the proportion of wrongful convictions would certainly rise if LDF’s program were fully implemented. Second, as demonstrated in Part V, wrongful convictions would fall disproportionately on black youths. II. AT THE HEART OF THE TWO PERCENT FALSE CLAIM FIGURE A. The Overwhelming Consensus
One highly respected legal academic, elected by her peers as president of the prestigious Association of American Law Schools, recently reported that “the overwhelming consensus in . . . research relying on government data is that false reports account for only about 2 percent of rape complaints.”9 It is indisputably true that, largely through the efforts of legal dominance feminists, there now exists a consensus among legal academics that only two percent of rape complaints are false.10 This purportedly empirical statement is ubiquitously repeated in legal literature. Dozens of law review articles reiterate that no more than one in fifty rape complaints is false.11 This empirical fact, however, is an ideological fabrication. As far as can be ascertained, no study has ever been published which sets forth an evidentiary basis for the “two percent false rape complaint” thesis.
13 “Measuring false allegations is all the more difficult since policies on unfounded criminal complaints differ from one jurisdiction to another, resulting in very different numbers.”14 The basic problem with accurately ascertaining the percentage of wrongful accusations is that the overwhelming majority of rape cases result in plea bargains, a “black box” in which there is neither adversarial process, jury fact-finding, appellate review, nor even a record for scholarly analysis. There are numerous reasons why both innocent and guilty defendants accept plea bargains, including avoiding the risks of going to trial.15 There is thus no firm evidence that the plea bargaining process differentiates between innocence and guilt any more accurately than trials. Whether by trial or by pleabargaining, roughly half of accused rapists are convicted.16 Even if we assume arguendo that all those convicted are indeed guilty, and that a full two-thirds of those acquitted at trial were also guilty, we would still wind up with a situation in which one-sixth of those actually tried are really innocent. C. Indirect Measures of Wrongful Rape Accusations
Despite the difficulties in measuring wrongful accusations, there is indirect data available that is highly suggestive that far more than two percent of rape accusations are false. In a significant fraction of instances, the accusers recant their charges;17 in others, where no formal recantation occurs but where rape may have occurred, there are good reasons to believe that the accusation must nevertheless be wrong about the identity of the assailant. One illustration of this phenomenon are the instances where DNA testing has determined that the man actually imprisoned for rape after trial was not the individual the victim claimed was the assailant.
Moreover, commencing in 1989 in cases of rape and rape-murder where there has already been either an arrest or an indictment, the FBI has conducted large numbers of DNA tests19 “to confirm or exclude the person. In 25 percent of the cases where they can get a result, they excluded the primary suspect.”20 As several of the weakest cases have already been screened out, either by the police determining that the claim is unfounded or by the prosecution deciding not to go forward,21 this fraction may indicate the lower boundary of formal misidentifications of the culprit.
Furthermore, there is no plausible reason to believe that almost all complaints of rape are true. On the contrary, aside from the limited probative empirical evidence on the issue, there are a number of good reasons to think that a significant fraction of rape complaints, far in excess of two percent, are false. By way of comparison, there is an elaborate body of literature and numerous examples suggesting that a significant number—way beyond the two percent range—of capital murder convictions are of innocent men.22 Why should criminal trials involving sexual assaults on women be more accurately discriminating than those involving capital homicide? If an assertion that one out of four or five rape claims is false sounds counterintuitive to the legal academic ear, then this further demonstrates that the two percent false claim proposition is now embedded in our commonsense notion of reality.
23 This commonsense notion, however, does not resolve the underlying empirical question of whether a significant minority of women who bring rape charges do so erroneously. D. The Two Percent False Claim Figure Is Unreliable
At the outset, it becomes apparent that LDF’s two percent false claim figure is highly problematic. An examination of its genesis reveals that the two percent false claim figure is an illusion that sprang from a mimeoed handout in Susan Brownmiller’s file
.24 To support this proposition, one needs to engage in a sort of academic archaeology and consider one of the main exponents of the two percent figure. For instance, Professor Morrison Torrey writes, “Estimates indicate that only 2 percent of all rape reports prove to be false, a rate comparable to the false report rate for other crimes. Unfortunately, reports of a high proportion of ‘unfounded’ rape complaints may have contributed to this myth that women falsely cry rape.”25 Professor Torrey begins her law review article by explaining that in preparation for her study, she “became familiar with the enormous amount of empirical research in the area of rape myths and their power.”26 Then Professor Torrey cites a main source and two back-up sources for her two percent figure: an article in The Rape Victim,27 a law review article by Roberta J. O’Neale,28 and another law review article by Margaret A. Clemens.29 The Rape Victim article reads in relevant part: “[S]tatistics reveal that the percentage of unfounded accusations in the area of rape is about two percent, according to Lt. Julia Tucker, former Commanding Officer of the New York City Sex Crimes Analysis Unit. This is approximately the same percentage of unfounded charges which are found in other felonies.”30
The second source, Roberta J. O’Neale’s article, reads: “The commander of the Rape Analysis Squad in New York City reported an estimated unfounding rate of 2%, no more than the rate for other crimes.”31 In turn, for this sentence Ms. O’Neale cites to a student law review comment,32 which itself relies upon an unpublished grant application from the Portland, Oregon, district attorney’s office.33 Because O’Neale’s language tracks that of Ms. Brownmiller’s Against Our Will34 and relates to New York City rather than Portland, it is quite possible that citation to Ms. Brownmiller was omitted by scrivener’s error. Alternatively, because the cited grant application preceded publication of Ms. Brownmiller’s book, perhaps the district attorney’s office relied upon the speech that was Ms. Brownmiller’s source35 or upon Grace Lichtenstein’s article discussed infra.36
Finally, the law review article by Margaret Clemens, the third source cited by Torrey as the basis for her use of the two percent figure, asserts: “Estimates indicate that only 2% of all reported rapes prove to be false, which is comparable to the rate for false reports of other crimes.”37 Only one source is cited by Ms. Clemens for her two percent figure—Brownmiller’s Against Our Will.38 All three of Professor Torrey’s sources turn out to be derived from the same single source. Moreover, as best as this author could ascertain, without exception every scholarly or semi-scholarly source that utilizes the two percent false claim proposition can ultimately be traced back to Against Our Will. Despite the plethora of pyramided citations, it turns out that there is one, and only one, underlying source—feminist publicist Susan Brownmiller’s interpretation of some data, now a quarter-century old, of unknown provenance from a single police department unit. There are no other published studies that this author could find. All of the sources cited at the outset of this Article39 trace back to Ms. Brownmiller.
Susan Brownmiller set forth the following in her book: “When New York City created a special Rape Analysis Squad commanded by policewomen, the female police officers found that only 2 percent of all rape complaints were false—about the same false-report rate that is usual for other kinds of felonies.”40 When one looks at her “Source Notes” for this proposition, she states it to be: “NYC Rape Analysis Squad found only 2 percent of complaints were false: ‘Remarks of Lawrence H. Cooke, Appellate Division Justice, Before the Association of the Bar of the City of New York,’ Jan. 16, 1974 (mimeo), p.6.”41
Ms. Brownmiller, who is a very meticulous and organized writer,42 very kindly on my request located and sent me a copy of this xeroxed speech.43 In relevant part, the judge’s speech reads: “In fact, according to the Commander of New York City’s Rape Analysis Squad, only about 2 percent of all rape and related sex charges are determined to be false and this is about the same as the rate of false charges of other felonies.”44
These judicial remarks do not suffice to determine whether or not there was an underlying written report, although the locution used is suggestive of being based on a quotation from a newspaper article rather than a formally written text. When I contacted the then-judge’s law clerk, and he made inquiry of all those directly involved in the preparation of Judge Cooke’s speech, their best recollections are that they did not rely upon any report but cannot remember precisely how they did obtain the two percent figure.45 Of course, it remains possible that some such report was generated, but as of this date, no one is able to adduce it.46 Without the document, one cannot analyze the underlying data, the protocol used in evaluating it, or even whether it met minimum criteria of accuracy.
47 A few weeks after the delivery of this speech, a New York Times reporter, Grace Lichtenstein, published a piece on that group in the New York Times Magazine entitled “Rape Squad.” 48 The article discussed the very brief tenure of Lieutenant Julie Tucker, and how the squad, exclusively composed of police, not social scientists, was “primarily a statistic-gathering operation.”49 Although all of this squad’s police “members . . . [were] trained in judo,” they were not, as far as can be ascertained, trained in statistical analysis.50 Toward the end of her article, Ms. Lichtenstein states that even under the then-newly reformed New York state rape statute, convictions were difficult to achieve “despite studies showing that the percentages of rape complaints later discovered to be unfounded was only 2 percent the same as for all unfounded felonies.”
It may well be that both Judge Cooke and Ms. Lichtenstein— followed by her friend52 Ms. Brownmiller in her book—relied on the same unknown original source advanced by someone in the Rape Squad. Whether that original source was a press release, a more formal report, or simply an oral statement to a reporter, remains lost in antiquity. Here the trail currently ends. E. The Unreliable Figures of the Dominance Feminists Enter the Academic Mainstream
Turning back to Professor Deborah Rhode, her belief that “two percent false = other felonies” is a consensus fact53 that more than likely comes from having perused numerous dominant feminist
articles and books which endlessly recycle it from its original source— Susan Brownmiller’s Against Our Will. Professor Rhode tells us that her manuscript was read by a baker’s dozen of law professors and that her editor at Harvard University Press “prepared this manuscript with painstaking care.”54 Apparently none of them challenged the two percent false claim, resulting in a sort of second-order consensus.
Professor Rhode in her scholarly notes55 advanced three sources for the two percent proposition: a newspaper article by reporter Candy Cooper,56 a book,57 and a law review article.58 Each source will be examined in turn.
Ms. Cooper’s initial article appeared on September 16, 1990.
Nowhere, either in this article or in its two accompanying sidebars, is there anything on the proportion of rape claims (or any other felony) that are false. Nor is there anything from which one could infer what proportion of rape charges is false. Her second article, dated February 1, 1991, reports that the Oakland police, in response to her prior article, re-categorized 184 of 203 previously “unfounded” rape reports.59 In addition to reexamining the 203 original cases, the Oakland police added an additional 29 as a spot-check.60 Of these 232 cases, seventy-six victims could not be located, thirty-six did not want to cooperate, and eighty-five did not return phone calls or letters because they had either given bad addresses or moved without leaving a forwarding address.61 Of those who were located, only twelve of the victims cooperated with renewed police investigation, and only two cases were presented to the district attorney; none has been prosecuted.62 Again, nowhere in these numbers can one find support for a two percent false rape claim figure.
Ms. Benedict’s Virgin or Vamp, the second source, reads: “The tendency of women to lie about rape is vastly exaggerated in popular opinion. The FBI and other researchers find that false reports of rape run at 2 percent, the same as those for other crimes.”63 The authority for this proposition was the following quote from Newsweek: “Research suggests that the notion that women invent rape charges is statistically unfounded and psychologically implausible. DePaul University law professor Morrison Torrey says about 2 percent of rape reports are false—approximately the same percentage as other crimes.”64
Torrey, as shown above, was simply based on Brownmiller.65 Attorney Schafran’s law review article, the third source, makes a number of valuable and useful observations about rape. On the issue at hand, however, she avers: “But on a statistical basis [false rape allegations] appear to be infrequent, even less frequent than false allegations in other types of cases.”66 In addition to relying on law review articles by Morrison Torrey and Deborah Goolsby,67 Ms. Schafran cites to another scholarly source—a third law review article by Karla Fischer.68
The cited pages in Fischer’s article do not address the issue at hand; but further in her text, one encounters the following footnote:
“When researchers replicated these studies using policewomen or trained rape investigators, however, the unfounded rape rate dropped to two or three percent. Id.”69 No one who has read this far will be surprised to discover that the prior citation in the Fischer article to which the “Id.” refers is none other than Brownmiller’s Against Our Will.70
Transmuted by repetition in one feminist
article after another until its problematic origin is lost, these multiple repetitions led the last writer in the chain, the President of the AALS, Professor Deborah L. Rhode, to write of a research “consensus” in academia based on one single unpublished speech Susan Brownmiller quoted a quarter of century ago. III. THE MYTH THAT “WOMEN DON’T LIE ABOUT RAPE” A. The “Second Rape” Disincentive
LDF literature advances the proposition that “women don’t lie about rape” as an axiomatic substrate to their proposed policy changes fueled by the purported two percent false claim figure.71 As further justification, LDF proclaims that women are deterred from making false rape charges because, inter alia, rape complainants are subjected to a harrowing “second rape.”72 Simultaneously, LDF wants alterations in the processing of rape charges by reducing the sanctions, costs and trauma—i.e., the “second rape”—that face women who come forward and press rape charges. However, LDF’s essentially static view of false claims simply does not take into account that as the sanctions and costs of bringing rape charges are reduced, an individual’s calculation of whether to deliberately make a
wrongful charge correspondingly shifts. LDF exponents do not acknowledge
that if the “second rape” disappears, so too does the very disincentive which is advanced as the main reason underlying the existence of few false reports. As Daphne Patai and Noretta Koertge put it:
The greater feminism
’s success in raising our feelings of moral outrage at sexual harassment . . . the more likely it is that members of a protected group will find it in their interest to make a false or frivolous accusation. In a rape trial, for example, it is now ironic that, as we—properly—destigmatize the woman accuser, we simultaneously undermine the old feminist
argument that the process of accusing someone of rape is so self-vilifying that no woman would ever intentionally make a false accusation.73 B. Other Lies in the Legal System
The assertion that women don’t lie about rape also rings untrue because men and women often lie about everything else in the legal system.74 For complaints of rape advanced against present or previous intimates, misreporting may well be closer to what commonly occurs in civil family proceedings involving contested issues of child custody.75 As the penalties for false allegations in the child custody setting appear both more serious and more likely to be imposed than the penalties for false rape charges,76 one should suspect that mothers would be less likely to lie in child custody situations. And as such false charges, whether given credence or not, might harm the couple’s child psychologically, we would again expect that proportionately fewer women would be willing to advance deliberately false rape claims. However, it may well be that as much as twenty percent of sexual abuse claims may be false in divorce settings with respect to children.77 If this is true, then it is not implausible that at least twenty percent of non-stranger rape claims are false. IV. TRANSFORMING RAPE INTO A STRICT LIABILITY OFFENSE
The veracity of the two percent false claim figure itself is less of a concern than the social policy changes that are advocated based on this illusory figure. Currently, about half of those accused of felony rape are convicted, whether through the trial or by plea bargaining.78 However, according to LDF, since only two percent of rape claims are false, this conviction rate is radically insufficient to achieve justice for women within the legal system. Thus, because of its axiom that virtually all complaints of rape are legitimate, a central goal of LDF is to reform the legal definition of “consent”79 in rape settings to become more favorable to women,80 thereby making conviction at trial easier to accomplish.81 A higher conviction rate can be accomplished by making mens rea irrelevant to the crime, thereby redefining rape as a new breed of strict liability offense. As Professor Susan Estrich observes, “To refuse to inquire in mens rea . . . [may turn] rape into a strict liability offense where, in the absence of consent, the man is guilty of rape regardless of whether he (or anyone) would have recognized nonconsent in the circumstances.”82 Although LDF does not expressly contend that rape generally ought to be transformed into a strict liability offense, it is hard to avoid observing that the LDF perspective is close. At the extreme, the felony would be redefined such that its elements reduce to sexual intercourse plus retroactive nonconsent.
LDF proponents have asserted that “incidents in which the victim herself has not labeled the experience a rape” can be validly criminalized.83 Where the victim did not at the time of the event label being compelled at knifepoint to submit sexually as “rape” because she was not aware that she was within the protected ambit of the law, e.g., a married woman who does not know that the marital rape exemption has been repealed in her jurisdiction, prosecution is unexceptionable.
The difficulty arises, however, when the putative victim’s “nonconsent” is presumed—for example, because she was intoxicated. Some LDF proponents contend that women are incapable of consenting to sexual activity whenever they are under the influence of alcohol. 84 Consider, for example, a setting in which both parties have become voluntarily intoxicated. In the course of sexual activity, the man may reasonably believe that the woman wants to engage in intercourse in light of her words and deeds.85 If afterwards the woman comes to think and contend that she did not consent to this sexual contact, most people would oppose finding the man’s behavior felonious.
A number of LDF proponents, however, would categorize this as rape. Such a position amounts to transforming rape into a strict liability offense.
A second type of serious problem ensues from the way in which LDF seeks to reconstruct the legal import of the woman’s consent. If a man brings forth a gun or knife, regardless of whether the woman then verbally agrees to intercourse, her behavior would presumably be that of someone under duress. Hence, the man’s guilt would be a proper inference in the factfinder’s determination. Problems arise, however, when the situation is consistent with two opposite meanings, e.g., no weapon, but the pair are alone in the woods. Perhaps the silent woman is afraid to object; perhaps her consent is unvoiced.
Many of the cases that LDF points to as horrible miscarriages of justice fall into this latter scenario.86 However, such a characterization of these cases rests on the assumption that the woman’s complaint is valid. Absent this unsupported assumption, one could readily infer either consent or non-consent. Provided the man’s testimony is plausible, however, it is difficult without further evidence, such as how they got there or their prior amorous interactions, to determine whether there is consent, much less to infer guilt.87 This is the underlying reason that the elements of rape are defined so narrowly—e.g., requiring force.88 Once one removes these parameters, the definition of the felony becomes wildly over-inclusive. For instance, if consent required express verbal speech acts on the part of the woman, there would probably be hundreds of times as many acts defined as rape as there are today. Only after a cultural change in which such verbal statements become effectively universal would it make sense to use
silence—or even rhetorical “no’s”89—as one per se element of the felony.
Many who adopt an LDF approach insist, however, that there should be a change in the legal rules governing rape such that in the absence of a woman’s verbal statement of assent, rape has occurred. 90 There is both a stronger and a weaker version of this proposed reform.
In the stronger version, any act of intercourse that occurs in the absence of an express oral consent is rape.91 Most within the LDF do not seriously dispute that currently a large portion of women fail to meet this proposed standard of behavior; and they probably even agree that it would be unjust currently to imprison the male sexual partners. Exponents of the stronger version argue, however, that passage of such legislation would prospectively create a beneficial social change, such that women would regularly speak up as sexual encounters transpired. Thus, “[i]f women could rely on the legal presumption that all escalation of intimacy required a clear, affirmative assent, it might be easier for them to decline to go forward.”92
Once women did generally behave in line with this new legal reality, the absence of a rhetorical assent would suffice to give fair warning to the man of nonconsent and would warrant his criminalization if he had intercourse without having obtained such consent. This position is at best rather speculative.
More commonly within LDF there are calls for public policy implementation of the weaker version: that “no means no,” i.e., that once the woman has rhetorically expressed nonconsent, sexual intercourse is rape. This is a seemingly reasonable notion, but in a society in which numerous women say “no” when they mean “yes,”93 it suffers from the same practical defect as the stronger version. Functionally, adoption of a rule that criminalizes all acts of sexual intercourse that occur after the woman has said “no” means that all of those many millions of real life instances occurring daily in which
women use that locution become potential strict liability crimes. By simply averring that the “magic word” was spoken, any very difficult rape case to prove would be transformed into a relatively simple one.
This would have the unfortunate collateral effect of creating a strong incentive for prosecutors and individual complainants to provide false testimony.
All of these reforms would address the numerous instances where LDF asserts that rapes have occurred in the absence of a contemporaneous belief on the part of the woman that she was raped. These instances are described as frequent, by a combination of generously characterizing a large share of “unwanted” sexual intercourse episodes between intimates as rape of the female participant, 94 adding in large numbers of instances where the sexual encounter is desired,95 and including instances of all sorts in which women have sex with dates after drinking alcohol.96 Rather than recognizing that its definition of rape is radically overbroad, LDF in effect criticizes the women involved for false consciousness. For instance, one leading feminist scholar specializing in the so-called “date rape” issue expressly states that the majority of raped college students did not realize at the time that they were raped.97 Others potentially falling in this category would be wives who think that their husbands cannot rape them, and those who have sex while inebriated, because, as some assert,98 women cannot consent in this state. Presuming that after sexual intercourse such a woman was persuaded that her contemporaneous view was false and that she really did not consent, that woman could truthfully testify at trial that she now believes that she did not consent when the sexual intercourse occurred. Her sexual partner could then be lawfully imprisoned as a felon. Their doctrinal notion of retroactive strict liability rape would seem to serve as a justification for punishing the men involved ex post facto. Eliminating any mens rea requirement would surely raise the conviction rate toward the ninety-eight percent benchmark.
By definition, if the woman testified at trial that she currently believes that
she did not contemporaneously consent, the man would have to be found guilty. As with other strict liability crimes which encompass millions of violators, it is impossible to enforce such laws; all that can occur is a handful of selective prosecutions.99 This proposed version of strict liability would approach retroactive absolute liability, whereby at her sole discretion, the woman could imprison any current or former sexual partner as far back as the controlling statute of limitations allows.
Such a revolution in the legal process would be justifiable if and only if some defensible reason could be articulated to authorize a heightened evidentiary status for a woman’s complaint of sexual mistreatment. The rationale advanced by LDF to justify such special treatment is that women do not lie about rape since only two percent of rape complaints are invalid. However, as demonstrated in Part II.D, this figure is thoroughly unreliable. V. RAPE LAW AND RACISM
To further advocate its changes in social policies regarding rape, LDF sometimes advances the notion that rape is tolerated in American society.100 However, rape has been, and continues to be, treated as a felony by the Anglo-American legal system, with severe penalties upon conviction.101 Currently, for example, the average length of time served in prison for rape is more than sixty-two to eighty-one percent of that served for murder.102 And while there has been in recent years a general increase in imprisonment of those arrested for felonies,103 the likelihood of imprisonment for those charged with rape “has increased by over 200%.”104 Moreover, in America, where racism has always been ubiquitous
in the deployment of the criminal law,105 the fate of blacks is radically disproportionate rates of arrest106—even higher when corrected for mental illness107—and, if found guilty,108 exceptionally vere punishment.109 While the evidence is not conclusive, it appears that black men are no more likely to rape than white men.110 The radical disproportion in rape imprisonment rates can then be seen as a key marker as to just how racist the criminal justice process, as deployed, actually is.111
It is hard to avoid the sense, therefore, that LDF’s proposal is implicitly racist. Surely any reform of rape law must address this extreme disproportion and have at least a modest propensity to reduce it. Yet for most of the LDF discourse, race is simply an occluded category. And there is no reason to think that the LDF reconstruction of rape law would make an iota of difference in its racist outcome. Indeed, any net increase in the total number of miscreants imprisoned via such “reforms” would further (disproportionately) burden the black community. There is something unseemly about upper-middle class, white professionals, who are already in the most physically secure and protected stratum in the community,112 zealously advocating policies essentially guaranteed to put more poor, black male youth in prison for many years while characterizing their efforts as a freedom struggle against patriarchy
. VI. CONCLUSION
It seems clear that the two percent false claim figure, which has pervaded LDF discourse, has no basis in fact. Since this figure is clearly unsupported, there is no justification for shifting the burden of proof or redefining consent in rape crimes in accordance with this figure.
As with many sociological myths, those about rape advanced by exponents of LDF have untoward practical consequences. Generally speaking, further efforts to revise the law of rape along the axis they advocate113 would be unwise. As Professor Elizabeth M. Iglesias observes, it would be more profitable to “rechannel . . . reform efforts from the criminal justice apparatus to the public policies that construct women’s sexual vulnerability and the culturally dominant images of women and men upon which these policies are based.”