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What follows is from a blog devoted to global politics and philosophy, in part. Please click on the title below to link back. The post that follows was written by one of the contributors to that group blog, and his name is listed as Pablo K. Below his post, I'll offer some commentary.
Intimate Dissidence: Assange, Foucault and (Feminist) Rape Discourse
At Critical Legal Thinking, Narnia Bohler-Muller takes issue with the narrow legalism of the often ‘surreal’ commentaries on the Assange controversy. In amongst the denunciation and counter-denunciation she detects an undercurrent of disciplinary power. On this account, the apparently ‘very broad’ rape laws of Sweden, like efforts in South Africa to force HIV tests on rape suspects, enforce dichotomies under the guise of legal formality, and so cast the accused as impurities of the social body:
The argument is that the law is not an appropriate instrument to deal with matters of sexual intimacy as general principles can never do justice to the particularity of the situation and the nuances of sexual game-playing. Such is the forceful and violent nature of The Law. To depend on legal regulation to resolve all the complexities and quirks of human relations is a dangerous precedent and enforces the dualisms of guilt/innocence and normal/perverted. It is such dualisms that serve to re-produce Foucauldian ‘docile bodies’ that do not threaten or resist the status quo…
…The problem is that in such a way harmless conduct may be punished merely because we do not approve of it. If Assange is HIV negative, which one assumes he is, and neither of the complaints fall pregnant, then his failure to wear a condom caused no harm. Or are we now choosing to punish potential harm or the risk of harm? Or, perhaps, punishing the failure to be a considerate lover, or the narcissism and promiscuity of a man who fucks helpless women and then leaves?
This ends up turning sexual assault into a form of dissent, a refusal “to express comfort with any kind of subservience to Authority“. As before, Assange is not really the issue, merely a bystander and stand-in. But, amidst her caution against law as a substitute for political critique and her rejection of marginalising discourse (points well-taken), Bohler-Muller’s use of him to mobilise broader arguments about a Foucauldian analytics of rape raises some stark problems.
First, feminists like Jaclyn Friedman are not involved in a legalistic fallacy. Their emphasis has been overwhelmingly on the implications of the language used to defend Assange and therape myths and apologetics that have been propagated as part of that. Bohler-Muller’s characterisation of the charges is telling in this light, since feminists are simply not arguing that “the failure to be a considerate lover” should be a criminal offence, still less that we should empower police officers to enforce ‘consent-plus’ (apparently the idea that “if sex takes place outside of a loving and intimate relationship, there is a strong indication that consent is lacking”). To speak of these particular charges as if they were merely a question of impolite sex and not ‘rape-rape’ is already to prejudge the issue and to misunderstand it as specifically about Assange, rather than about general rape culture and its prevalence.
Feminists have pointed out that holding someone down or penetrating them while they are asleep qualifies rather easily as non-consensual sex. They have suggested that having attending gender studies courses does not make an accuser untrustworthy. They have roundly and frequently agreed that the charges against Assange are suspicious and likely politically-motivated. And then they have said that this suspicion should not lead to the regurgitation of tropes about the perfidity of womankind or the agendas of man-hating lesbots.
Those are relevant points that have everything to do with the politics of rape, and very little to do with a fetishistic attitude to the statute book. In more general terms, feminists do agitate for higher conviction rates and frequently criticise the current state of evidence-gathering, classification and prosecution, as well as existent social prejudices towards rape victims. In doing so, they discuss the legal system and its manifest failings. But these are arguments about the reform of the law based on feminist political and moral positions, not a parroting of subjectivities created by it.
Which isn’t to say that there aren’t issues around feminism and law to be explored and critiqued, not least whether campaigning for a more successful pattern of prosecution is the best way to end rape (dependent as that argument is on a deterrent model, perhaps to the detriment of attempts to transform social norms in a more systematic way). But these are questions of strategy and politics, and feminists will take different positions. What doesn’t seem sustainable is to invoke the melee around Assange to indict some feminists as faux-’Law-Doers’ who “work within an impersonal system of suffocating ‘normalisation’ that aims to bring about a subtle but effective imposition of uniform behaviour on ‘law-abiding’, subservient individuals“.
Second, it is not at all clear which substantive position on rape we might recruit Foucault for. Bohler-Muller depends primarily on his arguments regarding the tyranny of morality. In itself that rather compromises the comparison with rape, since it cannot be seriously argued that the hegemonic attitude to rape in our societies is somehow a feminist one. But his own statements suggest that the allegations against Assange would very much still have counted, both ethically and legally, as crimes. In a debate on the functions of psychiatry and the uses of ‘trauma’, what Foucault proposed was that “rape belongs to the realm of physical violence and must simply be treated as such“. And speaking in 1978 on the homosexual movement and the age of consent in France, he developed a rather relevant distinction:
First, there is the question of sexual choice that must be faced. I say freedom of sexual choice and not freedom of sexual acts because there are sexual acts like rape which should not be permitted whether they involve a man and a women or two men. I don’t think we should have as our objective some sort of absolute freedom or total liberty of sexual action.The question of what counts as a disciplinary power and what as an emancipatory one is as blurry here as elsewhere. But it is at least arguable that Foucault’s agenda was to combat the proliferation of legal codes as instruments of a disciplining morality and, as he put it in the discussion of rape as physical assault, to contest the ‘preponderant place’ given to sexual organs in moral discourse. This would reclassify rape as a crime, but not obliterate it or confine it to some variation on ‘sexual game-playing’. Consent, it seems, still rather constituted a political-ethical limit.
Read this way, Foucault’s project is entirely compatible with at least some forms of feminist anti-rape politics. For Sharon Marcus, identifying and undoing the grammar of violence in rape scripts (those implicit understandings of appropriately masculine and feminine responses to a rape situation) should be central to self-defence against rape culture. Break the role-identification (the disciplinary power) and you are fighting rape.
More than a decade ago, Ann Cahill proposed a different Foucauldian reading, one which suggested that really challenging socio-cultural discourses of the feminine and masculine meant going beyond a view of rape as just like any other assault. Instead, in the properly Foucauldian way, we should be paying attention to the ways in which rape, and the threat of rape, extend far beyond the localised effects visible to the law and help constitute female bodies as incitements and innocents. Doing so opens up a discursive space for bodies which fight back.
Catharine MacKinnon once responded to the idea that rape was about power and not sex with a disarming question. If it’s not about sex, why didn’t he just punch her in the face? Making rape equivalent to a punch in the face, whether in law or in moral discourse, recoils from its legacies and their impact on our forms of thought and action. And so it risks ignoring them. The alternative is not simply to act out the roles assigned us by an imagined Law, but to engage law as a practice, a tool and a site of contestation.
* * *
The issues raised here make me think about how we conceive of rape primarily as an act done by an individual against another individual, and the harm is determined by how the act effects the person making the rape charge. To me, this is a rather apolitical and ineffective, or pro-rape, way of even approaching the issue of rape in the U.S., especially, but across the West and beyond.I begin elsewhere, and my analysis and understandings of rape come from experience enduring sexual assault, listening to women describe their experiences being assaulted, and reading many writings by radical feminists about rape, including, quite extensively, the work of Catharine A. MacKinnon and Andrea Dworkin.
One of MacKinnon's points about rape-as-sex-and-violence is that to only view it as an act of violence is to not understand why it results in an orgasm for virtually all men who succeed in committing it. Beating up women doesn't tend to produce this effect in male batterers. Nor does verbally denigrating or harassing women. This doesn't make it only-sex or only-violence for the victim. It does, certainly, make it sexual violence for the perpetrator. And sometimes 'just sex' as far as he's concerned, particularly when he finds ways to achieve rape without using physical force, such as by drugging the victim first, into unconsciousness. (See, for example, MacKinnon, "Sex and Violence: A Perspective", Feminism Unmodified.)
Another argument MacKinnon discusses is the problem of resting rape law on the concept of consent. Because there are far too many cases of rape wherein the very initiation of the violent act triggers dissociation or freezing such that verbal objection or physical fighting off is not possible. To require a "no" be spoken to affirm whether rape occurred is simply not to appreciate how domination and threat, and violation and humiliation, all works to silence people. This brings us to the criteria of an enthusiastic welcoming of the act. But even this standard doesn't account for how we feel we need to behave to appease someone who might kill us. If a man shows up with a gun at someone's home doorway, they may welcome him in, to avoid conflict and allow him to take what he wants and leave me alive. Why people thing it is different with rape is beyond me. When I see footage of bank robberies, it sometimes appears as if the teller is loading the cash into the bag rather enthusiastically. (See MacKinnon, "Rape: On Coercion and Consent", Toward a Feminist theory of the State; "Unequal Sex: A Sex Equality Approach to Sexual Assault", Women's Lives, Men's Laws.)
Might we consider a standard of consent dependent on the group of people most targeted being not at all traumatised by sex or gender to begin with? We must add to the conditions in which choice-making is meaningful a social reality in which women are not targeted by men for repeated and systematic unwelcomed and unwanted sexual advances, and a sexual life for women not predicated on being sexually available to men at some point in one's life? Might we add to the conditions for meaningful choice-making the lack of economic coercion? Otherwise we have specific groups of women, such as prostitutes and performers in pornography who, by definition or by the conditions in which she finds herself, cannot be found to have been raped. We must also require that military warfare and racist genocide not be happening, because how can we determine the political nature of an act that occurs in a context of social trauma and political terror?
When I contemplate the horror that is rape, I think about a class-specific act of terrorism against a group of people--terrorism by men against women and girls. That men also rape men and boys doesn't take away from my recognition of rape as an act of terrorism by men against women because men and boys who are raped are made to feel "feminised" by the rape. In prison, someone who is raped may be called the rapist's b*tch--a gendered and derogatory term if ever there was one. When boys are raped, they are made to feel less masculine for having been raped, are made to question the state and status of "their sexuality" meaning their presumed heterosexuality. If they are not heterosexual, before or after the sexual assaults, they are also seen to be "feminised". We might note that when women and girls are raped they are made neither more masculine nor less masculine, nor less feminine for having survived it. What they are made is female in the political sense. They are made into girls and women through both the fear of rape and the reality of it. The fear and the terror, and the harm and the intrusion, all combine to constitute the conditions in which girls and women live and negotiate social and intimate life.
The law, if it were to deal with rape for what it is, would treat every rape as a class action suit, by women against men, by a terrorised and socially and sexually subordinated group (women, girls, females), by a ruling class of terrorists (men, males, and sometimes boys). In this way we move beyond the liberal individualism that civil liberties exist to protect and into the realm of civil and human rights, necessarily founded a class-based analysis of harm. Hate may or may not be present in the mind of the rapist: he may be more callous and oblivious to any taken woman's humanity than actively loathing of her being; if pornography does its job to infuse misogynist propaganda-as-sexiness into the man's mind and body, he may not realise that his roughness or callousness is being registered by her as negative at all. And if she feels hated by him after the assault, and he claims to love her, and explains in a court of law that there was some miscommunication, whose subjectivity and truth matters more to a jury and judge?
We know that the courts are notoriously lenient on white men with money and even more notoriously punitive to men and women of color who are poor. So if the rapist is white, male, and rich, he's likely to be found innocent or to make a plea deal to keep himself out of that awful prison system where all those poor Black and Brown people are systematically placed. This says nothing at all about whether he's committed an act of sexual violation. It only tells us that, by and large, legally speaking, rich white men can't rape. We also know the courts cover their eyes not only to rape as patriarchal atrocity on the class level, but to rape as part of racist-misogynist atrocity against women of color on the cultural level. (See especially Andrea Smith, "Sexual Violence as a Tool of Genocide", Conquest.)
To pretend any rape is only impacting one person traumatically is to not understand the political meaning and function of rape. I hope the law will attend to this as a culture- and class-based act of domination and group destruction of women based on sex at least, but also often on race. What a court empowered to make justice structurally and socially real must stop protecting time and again are the rights, power, liberties, and entitlements of a ruling class of rich white men, or white men, or men, to terrorise, violate, and dominate a subordinated class, women. The objective here is not to dismiss the harm done to any individual by any given rape, but to comprehend and apprehend it as a cultural-social-political act, not a primarily individual-psychological one, even while it is that too.
