Feminist Thought
Rape/Pornography:  Coercion, Torture and Consent

MacKinnon "On Coercion and Consent" and "On Torture"

"On Coercion and Consent," Toward a Feminist Theory of the State, 171-183

forced sex, rape "indigenous" to women's social condition
not exceptional
the norm

Law on rape "with force and without consent"
redundant in the opinion
proves that force is so common that need to add "without consent"


focus on "penile insertion"
less of a focus for women, either in terms of pleasure or violation

focus on penetration results from male viewpoint of "loss", being denied access to women's bodies

Origins of rape law in male property rights to women's bodies
In rape what is legally one man's is taken by another

A crime of taking, taking women's sexuality, which is never her own.

She's critical of movement to interpret rape as a violent crime
not because it isn't violence but because this is not the essential element of rape to her

it is essentially a SEXUAL crime, a crime committed against women because they are women
not the same as battery, murder, etc.


"Rape is not less sexual for being violent.  TO the extent that coericion has become integral to male sexuality, rape may even be sexual to the degree that, and because, it is violent (173)

"Most rapes, as women live them, willl not be seen to violate women until sex and violence are confronted as mutually definitive rather than as mutually exclusive "(174).

Legally constructed as distinct from intercourse. 
The distinction hinges upon consent.
Men initiate, women consent (or not). 

Why do men still want 'it', feel entitled to 'it', when women do not want them?  The law of rape presents consent as free exercise of sexual choice under conditions of equality of power without exposing the underlying structure of constraint and disparity.  Fundamentally, desireability to men is supposed a woman's form of power because she can both arouse it and deny its fulfillment.  To woman is attributed both the cause of man's initiative and the denial of his satisfaction.  This rationalizes force. (175)


[Note:  this part of her argument, to follow, closely mirrors that of Susan Brownmiller's in Against Our Will]

The law of rape divides women into spheresof consent according to indices of relationship to men.  Which catefgory o fpresumed consent a woman is in depends upon who she is relative to a man who wants her, not what she says or does.  These categories tel men whome they can legally fuck, who is open season adn who is off limits, not how to listen to women.  The paradigm categories are the virginal daughter and other young girls, with whom all sex is proscried, and the whorelike wives and prostitutes, with whom no sex is proscribed.  Daughters may not consent; wives and prostitutes are assumed to, and cannot but (175).

age line rationalizes a condition of sexual coercion women never outgrow

one day they cannot say yes, and the next day they cannot say no (175)

To the extent women know the the accused, her consent is inferred (176)

Reflects men's experience that they do not rape women they know. Strangers do that.  Not them (176)

Not true statistically.

Women are more likely to be raped by someone they know (and these are often more traumatic because of the violation of trust, love, friendship that they entail)

"IN whose interest is it to elieve that it is not so bad to be raped by someone who has fucked you before as by someone who has not? (177)


Problem with consent
women socialized to "passive receptivity; to have or perceive no alternative to acquiescence; may prefer it to the escalated risk of injury and the humilation of a lost fight; submit to survive (177).

force and desire not mutually exclusive.  some women eroticize force, domination - better tha feeling forced.

connections between rape and battery
often preceded by women's noncompliance with gender requirements...nearly all occur at home, most often in kitchen or bedroom.
Most murdered women are killed by their husbands or boyfriends, most often in the bedroom (178)

Bureau of Justice Statistics on Violence by Gender

absence of force does not mean absence of control.

Almost half of all women have endured a rape or attempted rape

40% of victims of sexual abuse are minors

Most women get the message that the law against rape is virtually unenforceable as applied to them." (179)
risk being raped again, in court

If the rapist "did not perceive that the woman did not want him, she was not violated.  She had sex.  Sex itself cannot be an injury.  Women have sex every day.  Sex makes a woman a woman.  Sex is what women are for" (181).

"Rape accusation s express one thing men cannot seem to control:   the meaning to women of sexual encounters" (181).

Feminist definition of rape would focus on this:  the woman's experience of the act (182)

 "On Torture"
MacKinnon declares rape, battering, and pornography, to be "torture on the basis of sex" (Are Women Human, 17)

"profile of torture" in international law
abduction, detention, imprisonment, and enforced isolation

progressing to
extreme physical and mental abuse, may end in death

torturer has absolute power over victim (17)

torture limited only by torturers "taste and imagination"

verbal abuse, humilation, making the victim feel worthless, hopeless are integral to torture (17)

Often targeted at discrete social group (17)

people change as a result of being tortured
brainwashed, broken down, "Stockholm syndrome," dissociation (18)

purpose of torture:  to control, intimidate, eliminate those who insult or challenge or are seen to undermine the powers that be, typically a regime or a cadre seeking to become a regime (18)

From this, she draws parallels to experiences of women in the sex industry, porn, in particular

Linda Lovelace's story
her pimp imprisoned her, beat her, raped her, kicked her, kept her isolated, choked her, degrade her, yelled at her, threatened to kill her family members



Jayne Stamen's story
her husband threatened to kill her, raped her (with his own penis and with various objects), tortured her, sodomized her (with his own penis and with various objects), forced her to act out scenes from pornographic movies, beat her, held a knife to her, refused her to have any money of her own, cut off the phone, refused her contact with the outside world.


Burnham woman
similarly abused by her husband, and forced to perform in porn movies, pictures
forced to smile as she performed as he threatened her life (20-21)

torture usually assumed to be politically motivated, states to be involved, hence, a human rights violation (21)

when it happens to women, by an intimate, it is gendered, and not considered a human rights violation

stems from constuction of rights from male/liberal point of view, right to be free of state coercion/abuse

No one asks a victim of torture, "didn't you really want to be tortured?" (21)

more data on sexual violence against women, across cultures, including Sweden (22)

asks, why is this not political (politicized?) (22)
"The abuse is neither random, nor individual.  The fact that you may now your assailant does not mean that your membrship in a group chosen for violation is irrelevant to your abuse.  It is still systematic and group-based (22)

**[I]t is not considered political because what is political is when men control and hurt and use other men, meaning persons who are deserving of dignity and power, on some basis men have decided is deserving of dignity and a measure of power, like conventional political ideology, because that is a basis on which they have been derpreived of dignity and power.   So their suffering has the dignity of politics and is called torture" (22).



often reason given is perpetuated by non-state actors, in civil society (23)

1.  not only state that has power (and can abuse it)

2. she points out that the state is often complicit in torture of women
condoning it
e.g. reaction of police when Lovelace tried to escape, reported assaults
call back when he's in the room! (23)


3.  law of pornography, law of battered women's self-defense, law of rape
therefore, state is involved

e.g. Stamen's defense of killing her husband, battered women's syndrome
judge disallowed, "not going to give women a license to kill their husbands"

can you imagine some one saying that to a victim of torture who killed his assailant as he was trying to escape (24)


"All are affirmative state acts or positive omission s that discriminate on the basis of sex and dney relief for sex equality violations (which she is arguing should be the basis for criminalizing pornography).  The lack of laws agianst the hamrs women experience is society because we are women, such as most of the harms of pornography, also violates human rights.  Women are human there, too." (27)


under US equality law, courts often use the "similarly situated" test,
i.e., treating those who are different differently is ok, not a violation of equal protection law (the difference standard)

and laws much treat those who are "similarly situated" the same way
men could be and are also participants/victims of the porn industry, so it's not a gender issue

"As applied to women, it means if men don't need it, women don't get it.  Men as such do not need effecive laws against rape, battering, prostitution, and pornography (although some of them do), so not having such laws for women is not an inequality;  it is just a difference.  Thus are these abuses rendered part of the sex difference, the permitted treating of unalikes unalike.  Beause there are relatively few similarly raped, battered, or prostituted men around to compare with [women] (or they are comparatively invisible and gendered female), such abuses to women are not subjected to equality law at all. Where the lack of similarity of women's condition to men is extremem because of sex iequality, teh result is that the law of sex equality does not properly apply" (26).  




Brownmiller Excerpt from Against Our Will

 
Feminist theory’s treatment of rape/sexual assault

 

Connect with liberalism assumption about

1) equality of before the law

2) priority of property rights

 

The historical roots of rape as crime

As a crime against property – daughter’s body/virginity as the property of her father

 

Later extended to wives

 

Marital rape – not a crime til recently

 

Differentiate sex crimes by relationship – e.g. statutory rape vs. incest

 

What is legal definition of rape?

 

What is Brownmiller’s definition?

 

 

Why are women raped, according to Brownmiller?

 

 

Why does Brownmiller describe rape as a political crime?