Rape: Coercion not Consent

Back on International Women’s Day I wrote a post that referenced Catherine Mackinnon. Last Monday, I had the privilege of going to see her speak, as hosted by the faculty of philosophy and the faculty of gender studies.

I was a little (a lot) in awe of her – both because she is visiting professor of law at Harvard, and has done a lot of work as a lawyer, teacher, writer, and activist on gender equality issues internationally, and because of the way she spoke with so much authority and eloquence.

Her visit coincided with the release of her new book ‘Butterfly Politics’, so she mostly spoke about the idea of effective social change through law activism.

One of the things that came into this was the concept of ‘selecting the right domain‘ (i.e. calling problems in law what they actually are in life), Mackinnon’s main illustration for this being defining rape via reference to the use of coercion instead of understanding it as a lack of consent. As it stands, UK law defines rape in the latter way – whereas international law defines it in the former. I was completely unaware of this difference in definition, but found the arguments presented for changing the UK definition to the international one compelling. As such, I present them here, along with a thought I really liked about law as granting legitimacy.

Background

This definition originates from the International Criminal Tribunal for Rwanda which, in its landmark 1998 judgement, used a definition of rape which did not use the word ‘consent’.

Rape was to be recognised by reference to the experiences of the women involved (following the idea of ‘selecting the right domain’). The tribunal recognised that the experiences of these women were indicative of consent not being relevant for assessing the crime in question – rather, the inherent coerciveness of the situation of armed conflict as manifest in the unequal power relations existing between male soldiers and female victims was sufficient in itself to establish rape.

Issues with defining rape via consent

1. Consent is an intrinsically unequal concept – it uses an active-passive model of sex, consent is ruled by power (i.e. idea of one party acquiescing to another, more powerful, party).
2. This definition puts the victim on trial – it puts a focus on whether or not the victim consented, rather than whether or not the perpetrator used coercion.

Moving to a definition that references coercion

i.e. lawful sexual acts must be agreed to by both parties equally

1. Re-conceives force as including inequality – Force is not just physical but operates within the context of unequal power dynamics, this is something better captured by the concept of coercion
2. Understands that rape as a crime is gender-based/sex-stereotyped – 
   • Operates on gender roles and stereotypes of masculine and feminine sexuality
   • Given the large numbers and vast disproportion by gender between perpetrators and victims
   • Hierarchically gendered social meanings and consequences of sexual victimisation and perpetration.

The role of the law

Mackinnon gave a really poignant account of the law as granting legitimacy. When victims are recognised as such by a court, the look in their eyes is not one of triumph or vengeance or joy. It is a look that captures something of the relief of having been seen.

The law does not right the injustice, but it does recognise it. Where a crime has violated a person’s dignity, the law recognises that violation, and therefore recognises that a person had dignity in the first place. That is something powerful.

Finally, a tangential thank you…

to Kerry, who told me that Mackinnon was speaking in the first place AND gave me a tupperware of THE most amazing vegan banana cake!  ❤