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Katharine K. Baker

Articles 1 - 18 of 18

Full-Text Articles in Law

Why Rape Should Not (Always) Be A Crime, Katharine K. Baker Dec 2014

Why Rape Should Not (Always) Be A Crime, Katharine K. Baker

Katharine K. Baker

The Article proceeds as follows. Part I explores the primary legal frameworks for understanding rape law over time. It traces the origins of rape as a sometimes civil, sometimes criminal, wrong—through the patriarchal view of rape as a property crime, to the feminist (and liberal) remake of rape into an individual criminal injury to autonomy. It then briefly discusses recent rejections of the liberal/feminist position. Parts II–IV explore the three major impediments to effective norm change in more detail. Part V, after explaining why the recent proposed revisions to the Model Penal Code are not likely to overcome the problems …

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Legitimate Families And Equal Protection, Katharine K. Baker Dec 2014

Legitimate Families And Equal Protection, Katharine K. Baker

Katharine K. Baker

Abstract: This Article questions whether and why it should be unconstitutional to treat legitimate and illegitimate children differently. It argues that legitimacy doctrine is rooted in a biological essentialism completely at odds with contemporary efforts to expand legal recognition of nontraditional parenting practices including same-sex parenting, single parenthood by choice, surrogacy, and sperm donation. The routine invocation of legitimacy doctrine by advocates purporting to help nontraditional families is thus at best ironic and at worst dangerous. Analysis of the U.S. Supreme Court’s legitimacy cases reveals that liberal Justices, in trying to dismantle marriage—a legal construct—as the arbiter of legitimate parenthood, …

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Sex And Equality (Symposium), Katharine Baker Dec 2012

Sex And Equality (Symposium), Katharine Baker

Katharine K. Baker

This essay, to be published in Boston University Law Review’s symposium on Hanna Rosin’s book, The End of Men, challenges Rosin’s suggestion that contemporary sexual norms on college campuses serve women’s interests well. Unpacking the same data that Rosin uses to defend hook-up culture on women’s behalf, the essay argues that hook-up norms facilitate rape and may help explain the high rate of sexual assault on college campuses. Hook-up norms also perpetuate the sexual double standard, disproportionately hurt lower income women who cannot compete in hook-up status games, and valorize boorish, selfish male sexual behavior. In doing so, hook-up norms …

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Homogenous Rules For Heterogeneous Families: The Standardization Of Family Law When There Is No Standard Family, Katharine K. Baker Dec 2011

Homogenous Rules For Heterogeneous Families: The Standardization Of Family Law When There Is No Standard Family, Katharine K. Baker

Katharine K. Baker

The article explores the ironies involved in the contemporary enforcement of family obligations. As forms of intimate partnership and parenthood become ever more varied, the law of family obligation - child support, property division and alimony - has become increasingly routine and formulaic. As scholars increasingly call for more attention to the varied ways in which different individuals and communities structure their care networks and their intimate lives, the law of family obligation has become less, not more attentive to context. This piece explains how the law’s rejection of context is an understandable reaction to the growing diversity of family …

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The Problem With Unpaid Work, Katharine K. Baker Jun 2007

The Problem With Unpaid Work, Katharine K. Baker

Katharine K. Baker

This article examines the problems with a social norm that assumes women should shoulder a disproportionate amount of unpaid family work. It evaluates the most recent empirical data which suggests that women continue to do substantially more unpaid work than men, and men continue to do substantially more paid work than women. It then briefly reviews two standard explanations for where this gendered division of work may come from, biological inclination and/or systems of male dominance. It suggests that neither of these traditional explanations have given adequate consideration to the normative question begged by the extant division of labor. Is …

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Gender And Emotion In Criminal Law, Katharine K. Baker Feb 2005

Gender And Emotion In Criminal Law, Katharine K. Baker

Katharine K. Baker

No abstract provided.

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A Separate Crime Of Reckless Sex, Katharine K. Baker Feb 2005

A Separate Crime Of Reckless Sex, Katharine K. Baker

Katharine K. Baker

This article attempts to make progress on both the problems of sexually transmitted disease and acquaintance rape by proposing a new crime of reckless sexual conduct. A defendant would be guilty of reckless sexual conduct if, in a first sexual encounter with another particular person, the defendant had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant with a preponderance of the evidence. As an empirical matter, first-encounter unprotected sex greatly increases the epidemiological force of sexually transmitted disease and a substantial proportion of acquaintance rape occurs in …

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Asking What Before We Ask Why: Taxonomy, Etiology And Rape, Katharine K. Baker Jan 2003

Asking What Before We Ask Why: Taxonomy, Etiology And Rape, Katharine K. Baker

Katharine K. Baker

This article presents a spectrum of sexual coersion. By looking at the social meaning of the different acts of coercion along the spectrum, the author suggests that most acts of sexual coercion can be classified as either rape (a sexual act with intent to do harm to the victim) or sex (a sexual act engaged in without any intent to harm the victim). Ironically, though, the author suggests that the most and least egregious acts of sexual aggression, that is, the acts we most readily identify as rape and the acts we are most reluctant to label rape are the …

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Gender, Genes, And Choice: A Comparative Look At Feminism, Evolution, And Economics, Katharine K. Baker Jan 2002

Gender, Genes, And Choice: A Comparative Look At Feminism, Evolution, And Economics, Katharine K. Baker

Katharine K. Baker

This Article compares the methodological similarities between evolutionary biology and conventional law and economics. It shows how these methodologies diverge, in critical and parallel ways, from what has come to be known as feminist method. In doing so, the Article suggests that feminists in the legal academy should be suspicious of the parsimonious models upon which both conventional evolutionary biologists and conventional law and economics scholars rely. Biological and economic models employ analogous concepts of maximization (including theories of autonomy, choice, and measurement) and stable equilibria (usually produced by stable preferences) to make predictions and proscriptions for law. The simplicity …

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Biology For Feminists, Katharine K. Baker Feb 2000

Biology For Feminists, Katharine K. Baker

Katharine K. Baker

No abstract provided.

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Text, Context And The Problem With Rape, Katharine K. Baker Feb 1999

Text, Context And The Problem With Rape, Katharine K. Baker

Katharine K. Baker

No abstract provided.

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What Rape Is And What It Ought Not Be, Katharine K. Baker Jan 1999

What Rape Is And What It Ought Not Be, Katharine K. Baker

Katharine K. Baker

No abstract provided.

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Sex, Rape And Shame, Katharine K. Baker Jan 1999

Sex, Rape And Shame, Katharine K. Baker

Katharine K. Baker

This article explores how shame sanctions may be able to change the social meaning and decrease the prevalence of date rape. Arguing that men's tendency to date rape is fostered by social norms that treat sex as an accomplishment and, importantly, an accomplishment that enhances a man's masculinity status, the article suggests that one way to curb date rape is to curb the extent to which it is associated with masculine behavior. This strategy is necessary because the high premium society places on masculinity and the cultural confusion about when date rape is morally wrong and how it is different …

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Property Rules Meet Feminist Needs: Respecting Autonomy By Valuing Connection, Katharine K. Baker Jan 1998

Property Rules Meet Feminist Needs: Respecting Autonomy By Valuing Connection, Katharine K. Baker

Katharine K. Baker

In this Article, Professor Baker analyzes how and why the law protects both horizontal (marital) and vertical (parent/child) relationships. In doing so, she suggests that, although the reasons to protect relationships are comparable in both the horizontal and vertical contexts, the law is much more willing to interfere with vertical relationships, at least when the parents are not married to each other. From the standpoint of women's needs, this inconsistent treatment of relationships is precisely backwards. Women benefit little from the law's deference to horizontal relationships, but they could benefit substantially if the law was more deferential to a single …

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A Wigmorian Defense Of Feminist Methods, Katharine K. Baker Feb 1997

A Wigmorian Defense Of Feminist Methods, Katharine K. Baker

Katharine K. Baker

No abstract provided.

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Once A Rapist? Motivational Evidence And Relevancy In Rape Law, Katharine K. Baker Jan 1997

Once A Rapist? Motivational Evidence And Relevancy In Rape Law, Katharine K. Baker

Katharine K. Baker

Feminist scholars and activists have long sought to reform rape laws and evidence rules in order to increase the number of successful rape prosecutions in the United States. In partial response to these efforts, and in an effort to decrease crime, the 104th Congress amended the Federal Rules of Evidence by adding Rule 413, which makes prior acts of sexual assault by alleged rapists admissible in criminal sexual assault cases. The new Rule 413 was meant to level the legal playing field between rapists and their accusers. Professor Baker argues that the new Rule is misguided because it fails to …

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Taking Care Of Our Daughters, A Book Review Of Martha Fineman, The Neutered Mother, The Sexual Family And Other Twentieth Century Tragedies, Katharine K. Baker Jan 1997

Taking Care Of Our Daughters, A Book Review Of Martha Fineman, The Neutered Mother, The Sexual Family And Other Twentieth Century Tragedies, Katharine K. Baker

Katharine K. Baker

No abstract provided.

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Comment, Contracting For Security: Paying Married Women What They've Earned, Katharine K. Baker Jan 1988

Comment, Contracting For Security: Paying Married Women What They've Earned, Katharine K. Baker

Katharine K. Baker

No abstract provided.

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