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What follows is from here: http://kirangandhi.com/2014/10/28/sex-equality-with-professor-catharine-mackinnon/
Toward ending rape altogether. -- Julian
Rape Redefined
© Catharine A. MacKinnon, 2014
Nordiskt Forum, Malmö, June 2014
1. Rape is recognized in international law as a “gender crime,” meaning it happens to women because they are women. It is a crime of gender inequality.
2. This analysis, partly operationalized in international law, e.g. by the International Criminal Court, is not implemented in any country’s domestic law.
3. So, What would a rape definition governed by sex equality principles look like?
4. Rape is generally defined in Western countries as sexual intercourse by force or without consent or both. It is only without consent in the UK. It is only by force or violence in France. Most US jurisdictions require both: by force and without consent.
5. None of these has a good track record even for reported rapes, which are a small percentage of actual rapes. The conviction rate for reported rape in the UK is around 6%.[1] In France, it is a breathtaking 2.6%.[2] The conviction rate for reported rapes in the US, where most states require some version of both force and nonconsent, is between 12% and 25%. Given that in the United States about one out of every ten acts of rape or attempted rape is reported that essentially fit the legal definition, this is pretty appalling.
6. Consent definitions – in which the prosecution has to prove nonconsent – require a woman be believed concerning a sexual fact that is by its nature subjective. This is why it puts the victim on trial. Essentially, it attributes victimization to the victimized. It makes the case be about what she was thinking, or what he thought she was thinking, rather than about what he did. It makes rape occur in someone’s mind, not by his body on her body.
7. It is therefore no surprise that, in legal application, consent has been found when women are married, drunk or drugged, repeatedly said no, were asleep, comatose, just seen to be raped by several other men, threatened with deportation or false criminal charges or loss of her job. In legal operation, consent to sex is routinely found in situations of despairing acquiescence, frozen fright, terror, absence of realistic options, socially situated vulnerability, and even death. Prostituted sex is regarded as consensual because it is paid. All this is what consent actually means legally, not mistakes in what it legally means.
The often accompanying standard of mistaken belief in consent means that if the accused is found to have believed she consented, whether she did or not, it is not rape. In societies saturated with pornography, a lead pipe over the head can sincerely be believed to produce consent to sex. Further no surprise that “rough sex” is such an increasingly effective consent defense.
In other words, consent is often found in situations where considerable force was used, building into law the misogynistic assumption that women want to be forced into sex. This is the real meaning of requiring a showing of both force and nonconsent, as prevails in US state laws. The same assumptions tend to be attributed to a gay man when he claims another man raped him. He is feminized, reduced on a gendered basis.
If sex occurred, her consent is essentially presumed on the most minimal of acquaintance between the parties; the survivor has to disprove it. Socially speaking, if sex happened, or if a woman had ever had sex before, especially with the accused, consent is effectively assumed. She has to disprove it. It’s a social burden of proof women enter the law burdened by. Consent in law is consistent with economic, psychological, and hierarchical threats, so long as physical injury or life are not threatened (for which purpose rape itself is generally not considered a physical injury).
8. Consent as a concept was never designed to apply between two people in civil society. It was given its current meaning in Western liberal philosophy, hence Western law, as the basis for legitimizing the obligation to obey the laws of the state. Even as a fiction[3] it never envisioned equal parties. It exists to rationalize the exercise of dominant power (ie the state) over its subordinates (the governed). This is what it is for. Applied to sex, he is the government, she is the governed. Its purpose is to attribute and justify the requisite obedience of the powerless to the rule of the powerful. It is about compliance. One is regarded as tacitly consenting, for example, to whatever one does not leave,[4] ie you consent because you are there, whether leaving is a realistic option or not. Silence in sex, as in governing, is deemed consent, not dissent. These assumptions, along with the presumption that the two parties involved are somehow axiomatic equals—an assumption never articulated far less sought to be justified in theory or law—operate powerfully in sex- unequal circumstances, contrary to its realities, and remain invisible as assumptions under even the best of consent standards.[5]
9. Attempts to correct for this social burden of proof, the assumption of YES, women being walking consent—attempts women are often seduced by—involves adding additional words to make consent mean anything at all, such as positive, chosen, affirmative, autonomous, unequivocal, freely-willed, etc. These can be helpful, but they cannot be relied upon to overcome what consent fundamentally means. Requiring a woman say yes – and there is a lot of not-yes-saying out there – is not enough. If you can get a woman to suck an employer’s penis weekly to keep her job or to have sex with a dog, I would suppose you can get her to say yes. Pornography is full of yes. Consensual is a fall-back stand-in for “it wasn’t so bad” in societies like ours, in which sex by definition fulfills you, it doesn’t violate you, because sex is what women are for.
10. Fundamentally, it needs to be faced that consent is not an equal concept. It is an intrinsically unequal one that presupposes an actor and an acted-upon — the purported form of power of the acted-upon being acceding to the actor’s actions, doing what you are told to do — with no guarantee of equality of circumstance. That it might make sense in a society of actual social equality does not mean that it will get us there, because it silently presupposes that the parties are equals whether they are or not. It relies on an illusory image of a woman’s “agency” under conditions of inequality, as if one can be free without being equal. The corresponding fantasy—one that well-intended, strong progressive women often accept politically and argue for, not knowing what it has actually meant legally—is that if consent is the legal standard, what the woman says, even what she actually felt she wanted whether she said it or not, will be believed and will be carry the day, determining in a criminal trial whether sex was rape.
Apart from the problem of relying for incarceration on a victim’s subjective state of mind, including when unexpressed, the concept of consent relies for its social appeal on the assumption that it stands in for desire. This is its credibility cover, but nothing limits it to that. In social discourse, the crucible of its meaning, sex that is actually desired or wanted or welcomed is never termed “consensual,” because it does not need to be. Its mutuality is written all over it. Sex women want is never described by them or anyone else as consensual, as in, “I had a great hot night last night, I consented.”
11. Although the European Court of Human Rights (in M.C. v. Bulgaria[6]) and the CEDAW Committee (in Vertido v. Philippines[7]) has said that consent is the core of an equality approach, for these reasons of principle and practicality, it is not. Far from it. These cases unintentionally endorse the active/passive model of sex and social conditioning to trauma and the acquiescence that goes with it, and call that equality. Under unequal conditions, many women acquiesce in or tolerate sex they cannot as a practical matter avoid. That does not make the sex wanted. It certainly does not make it equal. It does make it legally consensual in most jurisdictions. This is the wrong road. Consent is a pathetic standard of equal sex for a free people.
12. Force definitions have also been problematic. The main problem has been that they have been largely confined to physical force, and typically require an excessive and unrealistic amount of such force, often with weapons, in a standard that seems to have in mind a fight between two men. In addition, it tends to require proof of resistance as evidence that force existed, even if the law has eliminated the resistance requirement.
13. On the view that a rape is about what (usually) a man did, mostly to women and children, sometimes to other men, a useful legal starting point is the Akayesu decision (ICTR): rape is defined as a “physical invasion of a sexual nature committed on a person under circumstances which are coercive.” The notable features here are the absence of nonconsent, seen as essentially redundant – coercion is present because consent is absent – and the exclusive use of coercion, which can be circumstantial as well as physical. The definition is on the force side but is not limited to physical force. In international criminal law, when a nexus with war or genocide or campaigns of crimes against humanity is established for a sex act, such that sexual assault is weaponized, those circumstances of coercion make it arguably unequal, vitiating consent of any operative meaning. Which is why it isn’t there. In settings outside recognized zones of armed conflict or genocide, “circumstances” adapted to domestic settings of so-called peacetime could include psychological, economic, and hierarchical forms of coercion – which, in limited ways, some jurisdictions already recognize in the sexual assault context.
14. Survivors of prostitution often cogently describe it as serial rape, let’s say sex unwanted for itself that is coerced by multiple circumstances of inequality. With this in mind, consider the international definition of sex trafficking, the destination of which is prostitution, from the Palermo Protocol (2000). It prohibits the use or threat of use of force or other forms of coercion, abduction, fraud, deception, or abuse of power or a position of vulnerability for purposes of sexual exploitation. And, where any of these means is used, the consent of a victim “shall be irrelevant.”
15. The proposal for rape redefined: Suppose we combine the best of the international definitions to redefine rape domestically as “ a physical invasion of a sexual nature under circumstances of threat or use of force, fraud, coercion, abduction, or of the abuse of power, trust, or a position of dependency or vulnerability.”
16. It would be essential to explicitly recognize that psychological, economic, and other hierarchical forms of force are coercive, including age, mental and physical disability, and other inequalities, including sex and gender, and that states like drunkenness and unconsciousness are positions of vulnerability. Inequalities would be recognized as a form of coercion when mobilized to force sex in a specific interactions. As in the international context with war and genocide, for a criminal conviction, it would be necessary to show the exploitation of inequalities, their direct use, not merely the fact of them.
17. And, where any of the listed means is used, the consent of the victim would be irrelevant.
18. Apparently it is difficult to think about sexuality in equal terms. The Swedish model of prostitution is educating the world that paid sex is forced sex, engaging in world leadership by setting a standard for what violence against women includes. This proposed definition of sexual assault in terms of circumstances of coercion could do the same. Let’s think together about it. “It all starts somewhere.”[8]
[1] Liz Kelly, Jo Lovett, & Linda Regan, A Gap or a Chasm? Attrition in Reported Rape Cases, Home Office Research Study 293 (2005), available at http://www.homeoffice.gov.uk/rds/pdfs05/hors293.pdfreport the study by Harris & Grace on p. 28 with this figure, among others.
[2] European Sourcebook of Crime and Criminal Justice Statistics 169 (4th ed, 2010). The same rate is cited by J.M. Jehle. Attrition and Conviction Rates of Sexual Offences in Europe: Definitions and Criminal Justice Responses, European Journal on Criminal Policy and Research 18,145-161 (2012). An updated edition of European Sourcebook is due out this year.
[3] David Hume was vividly clear on this, see “On Civil Liberty,” II.XII.20.
[4] See John Locke, Two Treatises on Government 224-25, ¶ 121 (5th ed. 1728). For a distinct but related doctrine, see Thomas Hobbes, Leviathan: Or, the Matter, Forme and Power of a Commonwealth, Ecclesiasticall and Civill 521-22 (A. R. Waller ed., Cambridge University Press 1904).
[5] Another use of consent in law is to allow medical intrusions to be inflicted upon a person that are injurious, but are being allowed for some other benefit. Does this sound like sex to you? Apparently, it doesn’t sound foreign to women’s situation in sex to a lot of men.
[6] M.C. v. Bulgaria, Eur. Ct. H. R. 39272/98 (2003). This opinion contains the statement regarding a U.S. case, Berkowitz, that “Pennsylvania courts held that the victim’s repeated expressions of “no” were sufficient to prove her non-consent.” As to rape, this is not the case. The appeals court held that her statements of “no” would be relevant to the issue of non-consent, but were not relevant to the issue of forcible compulsion, the requirement for rape in Pennsylvania. The jury conviction for rape was accordingly overturned. Commonwealth v. Berkowitz, 609 A2d 1338 (1992). The case was remanded for retrial on “indecent assault,” which requires nonconsent, a conviction the appeals court upheld. Commonwealth v. Berkowitz, 415 Pa. Super. 505, 641 A.2d 1161 (Pa., 1994). No discussion of equality occurred in the case.
[7] Vertido v. The Philippines, CEDAW/C/46/D/18/2008 contains excellent equality analysis of rape myths and misogynistic stereotypes. However, it does not consider inequality as a form of coercion, but challenges the force-only law in the Philippines as lacking the “essential element” of rape law: “lack of consent,” which it redefines to mean “unequivocal and voluntary agreement.”
[8]Ane Brun, It All Starts With One (2011).
