Applications Of Feminist Legal Theory

Rape: On Coercion and Consent

•·S) Rape: On Coercion and Consent CATHARINE A. MACKINNON Negotiations for sex are not carried on like those for the rent of a house. There is often no definite state on which it can be said that the two have agreed to sexual intercourse. They proceed by touching, feeling, fumbling, by signs and words which are not generally in the form of a Roman stipulation. -Honore, twentieth-century British legal scholar and philosopher Rape is an extension of sexism in some ways, and that's an extension of dealing with a woman as an object. ... Stinky [her rapist] seemed to me as though he were only a step further away. a step away from the guys who sought me on the streets, who insist, my mother could have died. I could be walking down the street and if I don't answer their rap, they got to go get angry and get all hostile and stuff as though I walk down the street as a ... that my whole being is there to please men in the streets. But Stinky only seemed like someone who had taken it a step further ... he felt like an extension, he felt so common, he felt so ordinary, he felt so familiar, and it was maybe that what frightened me the most was that how similar to other men he seemed. They don't come from Mars, folks. -Carolyn Craven, reporter If you're living with a man, what are you doing running around the streets getting raped? -Edward Harrington, defense allorney in New Bedford gang rape case IF SEXUALITY IS CENTRAL to women's definition and forced sex is central to sexuality, rape is indigenous, not exceptional, to women's social condition. In feminist analysis, a rape is not an isolated event or moral transgression or individual interchange gone wrong but an act of terrorism and torture within a systemic context of group subjection , like lynching. The fact that the state calls rape a crime opens an inquiry into the state's treatment of rape as an index to its stance on the status of the sexes. Reprinted by permission of the publisher from Toward a Feminist Theory of the State by Catharine A. MacKinnon. Cambridge. Mass.: Harvard University Press. Copyright © 1989 by Catharine A. MacKinnon. Copyrighted Material 471 472 I CATHARINE A. MACKINNON Under law, rape is a sex crime that is not regarded as a crime when it looks like sex. The law, speaking generally, defines rape as intercourse with force or coercion and without consent.l Like sexuality under male supremacy, this definition assumes the sadomasochistic definition ofsex: intercourse with force or coercion can be or become consensual . It assumes pornography's positive-outcome-rape scenario: dominance plus submission is force plus consent. This equals sex, not rape. Under male supremacy, this is too often the reality. In a critique of male supremacy, the elements "with force and without consent" appear redundant. Force is present because consent is absent. Like heterosexuality, male supremacy's paradigm of sex, the crime of rape centers on penetration.2 The law to protect women's sexuality from forcible violation and expropriation defines that protection in male genital terms. Women do resent forced penetration. But penile invasion of the vagina may be less pivotal to women's sexuality, pleasure or violation, than it is to male sexuality. This definitive element of rape centers upon a male-defined loss. It also centers upon one way men define loss of exclusive access. In this light, rape, as legally defined, appears more a crime against female monogamy (exclusive access by one man) than against women's sexual dignity or intimate integrity. Analysis ofrape in terms ofconcepts ofproperty, often invoked in marxian analysis to criticize this disparity, fail to encompass the realities of rape.3 Women's sexuality is, socially, a thing to be stolen, sold, bought, bartered, or exchanged byothers . But women never own or possess it, and men never treat it, in law or in life, with the solicitude with which they treat property. To be property would be an improvement . The moment women "have" it-"have sex" in the dual gender/sexuality sense-it is lost as theirs. To have it is to have it taken away. This may explain the male incomprehension that, once a woman has had sex, she loses anything when subsequently raped. To them women have nothing to lose. It is true that dignitary harms, because nonmaterial, are ephemeral to the legal mind...