Is criminal justice necessary for perpetrator accountability? (Probably, for now)

I was left with a resounding “this suuuucks” feeling after reading “Sexual Assault and the Meaning of Power and Authority for Women with Mental Disabilities” and an ever stronger “this suuuucks” feeling after discussing it in class.

Coming into this course, I was quite comfortable with the idea that the criminal justice system is not the end-all, be-all for many survivors of sexual assault. After all, the gathering of evidence and testifying at a trial may be a traumatic experience for some — if an investigation is even pursued. The justice system is simply unable to account for the vast structures of power in play during a sexual assault, and much healing can be done outside of the perpetrator being slapped with jail time (again, unlikely).

It’s not surprising, then, that the line “criminal law, by necessity, is focused on wrongs committed by individuals, not on redressing systemic discrimination” resonated with me (137). Criminal law is structured around proving a perpetrator, and the apparent lack of something (consent) is required to deem the accused a criminal. Clearly, survivors cannot rely pursuing an investigation or a judge’s decision to determine their healing for them. If we expected that to be their primary course of action, we would be robbing the majority of survivors’ agency to define healing on their own terms.

I’ve had to nuance this view of mine, though, since digging into much of the legal theory we’ve been reading so far. The court’s attitude (focusing on wrongs committed by individuals rather than redressing systemic discrimination) is no less prevalent in every other part of our public and private lives. Simply ignoring the legal aspects of sexual assault because they’re painful to become aware of does little to change the wider conversation on perpetrator accountability.

To what extent, I wonder, does the mainstream discourse of our society impact laws? And, more importantly, to what extent do these laws impact the mainstream discourse of our society? If these thoughts permeate the way most people think and talk about sexual assault, the survivor isn’t left with many other options. If life outside of the courtroom doesn’t hold perpetrators accountable, survivors have few options for pursuing “legitimate justice” other than entering the criminal justice system, which, as we’ve read in this article, has so many loopholes that are particularly damaging to those with mental and physical impairments.

There’s no doubt that our laws legitimize the way we live. I’ve spoke to a handful of people (some who identify would even identify feminists) who echo statements reflecting the problematic views of the court that we saw in Benedet and Grant's article. I’m particularly interested to keep reading about the legal aspects of sexual violence and (hopefully) turn some of these “this suuuucks” feelings into empowerment. 

Sexual Assault as Gendered and Genderless

(This post contains a mention of an article we aren't discussing until Friday's class. But I've already read it so I'm posting this now anyway. Just wanted to give a spoiler alert if you're reading this before Friday!)

Sexual assault can happen to anyone and be committed by anyone at any time, but there is a narrative that prevents us from seeing certain victims as victims and certain perpetrators as perpetrators when they fall outside of that narrative. The idea of the “ideal victim” was brought up in Benedet and Grant’s article on sexual assault and women with mental disabilities [sic]. The “ideal victim,” from what I understand, is a white, under-age girl whose assault cannot beyond a shadow of a doubt be questioned because for this victim, consent was not possible to give. Benedet and Grant assert that this “ideal victim of sexual assault is a fiction. No woman can meet this impossible standard, whose requirements seem only to increase in number” (152). Men can’t meet the standard at all (again, unless they are under-age, and even then it can be difficult) and neither can anyone else who falls anywhere between or outside the gender binary. This is what Jos Truit wrestles with in her article.

We’ve been talking for the past little while about whether or not it’s productive to imagine a discourse of rape that exists without gender in order to focus on its nature of violence. Ultimately we’ve all kind of come to the conclusion that we understand why we might feel compelled to do this, but that it leaves out a huge part of the crime in that it erases the indisputable fact that sexual assault is gendered.

Truit maintains that “we need to be able to hold an understanding of rape as a genderless act at the same time that we recognize it as embedded in a gendered culture of violence.” We need to do this in order not to leave any victims of sexual assault behind. But I guess I’m still left wondering how we actually are supposed to understand rape as gendered at the same time as we’re supposed to see it through a genderless lens.

Rape is a mechanism that doesn’t just work to control women. Further than that, it works to assert power and dominance over communities of people who deviate from the norm. Rape of lesbian women to try and “turn them straight,” rape of nonbinary and genderfluid people as a way to “un-queer” them, and so-on. Anyone who falls out of the gender binary and into the ocean of queer identities is a threat and I think this is where we can still hold on to the idea that rape is meant to control the categories of gender and appropriate corresponding sexualities.

I guess what I’m trying to say here is that I don’t really agree with Truit. I don’t think we need to understand rape as a genderless act to any capacity. It is possible, I think, to include every single sexual assault survivor even when we see rape as gendered.

Is being uncomfortable a necessary part of change?

I'm so sorry to be posting this (slightly) late today! Have a great weekend everyone.

Reading over the pieces in class this week was very troubling, and served to give me some mini existential crises to work through. While it was difficult to work through, I also think that being uncomfortable is sometimes maybe necessary to process complex ideas and boil them down to their useful components. I suppose I just think it’s really hard to grow if we always stay comfortable - sometimes shock value (a radical idea) is critical to start the ball rolling on changing our perceptions, as well as get us out of our bubbles that we may be living in. I'm curious if other people agree that being uncomfortable can be conducive to promoting change and helping individuals see problems in a new light. 

It was difficult for me to read MacKinnon especially, and begin to work through ideas of consent not being valid due to compulsory heterosexuality and all the structures of domination and power that exist. Does that mean that I can never have any sort of sexual encounter? Today in class during our discussion, we talked about how a lot of different sexual acts would be construed as rape by MacKinnon, and how uncomfortable that left us feeling. We also wanted to discuss if masturbation then becomes the only thing to do that isn’t in some manner forced by compulsory heterosexuality. But – we could see MacKinnon’s argument going as far as to say that there is no way any form of penetration is acceptable, which would narrow down and police sexuality to a very few things (so, where do we draw the line?).

I suppose the part that made me feel most uncomfortable in the theorists this week was the idea that I have no power or control. I’d like to think that I do have the ability to make choices, but if they are all governed by a system in place, then I just have the illusion of choice. I guess the way to explain this would be if I were offered apples or oranges, I would take that as me having a choice, but it’s not a real choice because there are so many different fruits out there I could have, but I’m just not seeing because the person offering them is just showing me what they want me to see. That’s kind of an abstract example, but I hope it works. I suppose the question I am grappling with is if we don’t actually have choices in this heteropatriarchy and there is no consent, then does anything we do actually matter? Won’t the system make sure that no matter what we do we wind up in the same place anyway? 

Violence and Male Domination

This particular excerpt of Mckinnon's work was compelling, and I feel that while there are many things I would argue against, I find myself agreeing with a lot of what she has to say. While I do not agree that all heterosexual sex is a display of domination, I think it is so important that it was pointed out how rape is usually viewed as violent sex, when in many cases the act of sex is the violence. Through films and other media, it is almost expected that a rape is violent, leaving the woman with large bruises and cuts. It is important to recognize that a gentle touch with the wrong intentions can be just a harmful, if not more so, as a fist. I don't think this is brought up enough in discussions on rape, so I was kind of excited when Mckinnon brought it up.

I also can't help but agree with many of the things Mckinnon says about the male (or the perpetrator's) point of view. I would not say a man is always thinking about raping a woman, but that men have become socialized to want to dominate each other as well as women in other ways. To be  the most impressive, the strongest, the funniest, to have the most attractive mate, the names of the competitions are endless. McKinnon's example of a man knowing he is less likely to be raped than to rape, and a woman knowing the opposite. I can clearly imagine the nightly commute home for countless women, in which she much walk past the unknown man and even as he walks farther away the woman still fears he could rape her. As long as this kind of mentality exists men will continue to dominate the sidewalks women walk on. 

Although Mckinnon creates large generalizations about the male population, the fear that I feel every night walking home down Whyte Ave is very real. I feel angry as well because my logical mind tells me that the man walking behind me is also probably just walking home, but I still reach into my pocket to put my keys between my knuckles, just in case. I get angry because in this way, I have been socialized into allowing strange men to dominate me every day.

Desensitization to Rape in Society

After reading Andrea Dworkins piece, I was moved by how much her writing spoke to me and how I identify as a feminist. What I thought was the most important about her article was how she included men into the argument, and basically shut down the argument of “but not ALL men do it.” Yes it is true that not all men rape, but these men who claim that this fight is not their fight are missing so many of the critical points that feminists have been making for so many years.

A quote that stuck out for me in the article was when Dworkin referred to the defence of, “well it happens to men too.” She says, “That is not the equality we are struggling for. We could change our strategy and say: well, okay, we want equality; we'll stick something up the ass of a man every three minutes.”(Dworkin, 1983) Yes, rape happens to men, and yes there are male strippers and male prostitutes but that does not change the statistics on male to female related rapes and it does not mean that our society is not in drastic need of changing. Dworkin goes on to explain that “[equality] cannot coexist with rape. It cannot. And it cannot coexist with pornography or with prostitution or with the economic degradation of women on any level, in any way” (Dworkin, 1983) and I think this relates to Mackinnon’s concept of the men being “systematically conditioned not even to notice what women want. Especially if they consume pornography.”(Mackinnon, 1989)  Both these statements made me think of the desensitization that our society is exposed to because of the “rape fantasy” that is exploited by the porn industry. It is because of this desensitization that the defence of the perpetrator “not knowing” that the woman did not consent and therefore did not have the required mens rea to be found guilty of a rape charge continues to happen in the courts. If men are exposed to dialect where no really doesn’t mean no, it means she likes it rough, it is not hard to see why the courts continue to view this as a meaningful defence. The shock value has been lost because we are exposed to it on a daily basis. We are exposed to it not only in porn, but also in advertisements and in the “corpse chic” that Cressida Heyes talked of in her lecture. When the idea of rape loses its shock value, and men are systematically taught that no doesn’t always mean no, the argument of “not all men” loses any little value that it might have had.

Furthermore, what I find most troubling about this argument is just how sad it is. If you cannot tell the difference between a woman that wants to have sex with you, and a woman who is not consenting to sex, what does that say about you as a human? I find it sad that this can be used as an argument, and I find it sad that society does not see how debilitating this is to both genders.

Finally, when we talked in class about whether or not men fear feminism, I believe they do and I believe that they have good reason too. I believe that this fear is deep seated in the idea they themselves will be treated as they treat women. And that would be a scary thought for any man (yes, all men).

What about vulnerability?

I have been considering how contemporary and historic notions of gender inform Brownmiller’s theories of sexual assault as well as current conversation about body politics. Brownmiller’s understanding of sexual violence is rooted in the belief that rape is a political act that is done to one type of body by another. It assumes that there are two distinct, gendered bodies: the penetrating male body that commits the assault, and the vulnerable female body that is constantly under threat. This threat exists, according to Brownmiller’s framework, primarily because of the male body’s mere capacity for violence, whether the individual chooses to act on it or not. I don’t think this assertion is intended to overlook the fact that all bodies are capable of violence as much as it is serves to affirm the narrative that only some bodies are seen as vulnerable. Gender is obviously a defining factor in determining how bodies are inscribed with meaning, but is by no means the only factor. Dominant discourses on how a body should act are deeply entrenched in society’s commitment to social scripts of masculinity and femininity, which are identified by their displays of dominance and submission, respectively. It is interesting, however, that the embodiment of dominance is assumed to exist only in the absence of vulnerability. Or that by embodying a male body -a body that is permitted and expected to exhibit dominant behavior- assumes vulnerability is not needed or desirable. Like the binaries of male/female, masculine/feminine, dominance is defined in opposition to submission and vulnerability, which continue to be regarded as aspects of femininity and reflections of fixed, biological definitions of what it means to be “woman”. In reality, all bodies are vulnerable. It could be argued that vulnerability is even a necessary condition for bodies to be inscribed the very meanings that define them into categories like male and female or that assume them to be masculine or feminine, dominant or submissive. If we’re going to talk about sexual assault, I think we need to start with an ethics of vulnerability- recognizing all bodies are vulnerable and all bodies have the potential for violation. I wonder, how does this inform the ways we learn to interact with other people’s bodies as well as our own?

Contemporary and Individualized Considerations of Mackinnon

 While we encounter several places in which Mackinnon's paper fails to apply to a contemporary setting, several of her main points continue to resonate. Today in our class discussions, one of the things we discussed was how Mackinnon's analysis applies to our lives on an individual level. The question of agency, specifically, was addressed, in terms of how we are able to reconcile our own choices with an understanding of structural powerlessness. This seems to be an ongoing challenge for feminists, in that we have to recognize the systems of socialization and marginalization which are inherent in all aspects of our lives, while continuing to exist in our current social-political landscape. In considering “Rape: On Coercion and Consent,” this becomes relevant to our sexual relationships. If rape is differentiable from normalized heterosexual sex, how are we able to mitigate this within our own lives? Is equality in sex ever possible?

However, I think it is important to engage in an analysis of social structures and the ramifications they have on our every day actions. Additionally, thinking about things in an uncompromising way can be a profound strategy to radicalize cultural narratives. In this case, drawing attention to the eroticization and romanticization of systems of sexual dominance and submission, for the purposes of questioning and rethinking these. This complicates things on an individual level, in that it frames women as perpetually and inescapably victimized subjects. However perhaps this is necessary in order to begin to recontextualize our gendered relationships, and by proxy, our perceptions of rape and sexual assault.

Of the parts of Mackinnon's paper which no longer resonate in our contemporary time, I think one of the most crucial is in her analysis of powerlessness. In framing women as being without power, it simplifies the complex dynamics that exist within the essentialist category of women. It ignores the intersecting marginalizations of race, class, ability, etc. which are incredibly relevant to considerations of sexualization, power dynamics and structural inequality. Especially, when this comes to issues of violence, such simplifications are entirely insufficient in contending with cultural perceptions of sexual assault. A contemporary analysis of Mackinnon's rape theory demands the inclusion of such bodies and experiences, which I think is enriching to such examinations of the intersections of sexual assault and power.

“Equality…cannot coexist with rape”

In my first year, I was also assigned second wave readings. The content of the class had no real impact on me; at that time Dworkin represented the ‘feminazi’ I had heard about coming into Gender Studies.

Fast-forward 3 years to this week and internal me was whooping and cheering in agreement with MacKinnon and Dworkin. Explaining rape as a social condition resonated with what I knew. “Ending rape … is the only meaningful commitment to equality” (Dworkin). I could see it is obviously problematic for MacKinnon to describe a homogeneous, fearful women, however (as came up in the discussion class) I can understand that making such a bold statement was necessary during that time.

Unfortunately when I stopped to think on the details of MacKinnon’s argument in particular, I was troubled; I’m having some sort of personal crisis. She argues consent is not a meaningful concept, because all women are forced and coerced by compulsory heterosexuality. In law and social conceptions, consent is the only distinguishing factor between rape and other sexual acts. To my understanding, MacKinnon was saying that only under the current realities of gendered structures, compulsory heterosexuality and the eroticisation of domination is rape indistinguishable from ‘normal’ heterosexual acts, leaving open the possibility for consent to become a meaningful concept.

However decades later the analysis still seems pertinent and we have not seen massive social upheaval. This left me with the idea that I’ve made no real, meaningful choices in my relationship. Obviously this is unsettling as I would like to think I have total control over what my sex life means.

“Equality is a practice. It is an action. It is a way of life. It is a social practice. It is an economic practice. It is a sexual practice. It can't exist in a vacuum. You can't have it in your home if, when the people leave the home, he is in a world of his supremacy based on the existence of his cock and she is in a world of humiliation and degradation because she is perceived to be inferior and because her sexuality is a curse.” – Andrea Dworkin.

I’m still not comfortable with saying I have no agency. While here Dworkin hasn’t really helped me out on giving meaning back to me and my life choices, this quote reminded me why I’m here. Sexual violence isn’t just about me or my experiences; it’s a gendered crime that is disturbingly widespread. 

Dworkin's Plea

“Why would a militant feminist under this kind of pressure stop off on her way to the airport to say hi to 500 men?”

Andrea Dworkin’s speech was an impassioned plea for men to assist in stopping rape. I chose not to read this speech as an angry woman yelling at and accusing men but as a woman so tired of carrying around her pain and the pain of women she has known.

Dworkin states, “Why are you so slow to understand the simplest things; not the complicated ideological things.” This quote stood out to me because initially I found it to be slightly reductive but then as I began to think about what she is asking I found it to be completely true. She is merely asking for men to stop assaulting women or for men to stop other men from assaulting women. That is not a difficult task. Dworkin is obviously frustrated with the state of society but it is not mere frustration it is also fear; “Some of us don’t have another week or another day to take time for you to discuss whatever it is that will enable you to go out into those streets and do something.” In group discussion today we talked about how irritating it is that when a male celebrity says he is a feminist there is almost a fanfare for how wonderfully amazing he is but when a female celebrity says she is a feminist she is dubbed a ‘feminazi’ or worse. This male validation of feminism is interesting in relation to Dworkin’s call for men to stop rape. The ending of rape is something that inherently needs men to be a part of or else Dworkin would probably not have bothered begging those 500 men for a truce.

The next point of Dworkin’s I will engage with is: “I name an abuse and I hear: “Oh, it happens to me too.” That is not the equality we are struggling for. We could change our strategy and say: well, okay, we want equality; we’ll stick something up the ass of a man every three minutes.” This reminded me of reading any comment section in an article about sexual assault. People will constantly say “men get raped too, why aren’t you feminists doing anything about that” or some variation and I think Dworkin’s quote above would be a perfect response to those people. Feminists do not want to be equal with men in the pain we feel, we want to be equal in the pain that men do not feel. Feminists do not want to take away power, we just want power too.

I did also have some problems with Dworkin’s speech but since I am very close to going over the word count I will keep this a positive piece. I think that if you read this speech generously, as Randi mentioned, Dworkin is just a women asking for some respite.

Brownmiller: Problematic Then and Now.

   "Feminist Theories of Rape" was definitely and interesting article but brought up more problems then solutions in discussions of rape and men and women's role in society.  I guess the strong response from Brownmiller in her book is in response to society in the 70's and how they dealt with sexual assault but to say "...all men keep all women in a state of fear."(p 16) just seems to absolute.  This is not a realistic statement and presents more problems then solutions.  It makes us think that we should be walking around constantly in a state of fear because we may be potentially attacked.  If I was reading this in the 1970's I would be terrified and would believe that I need to get married for my protection not because I wanted to or not "Such vulnerability has produced, among other things, the institution of marriage."(p 17).  How would I feel reading this as a man, apparently I am ready to rape at any moment because I have a penis and that is an inherent quality that I seem to have as a male.

    I can see the logic in trying to separate rape from sexuality(p 20) and make it in an assault.  This takes away the questions of what she was wearing and what she was doing to perpetuate her own rape.  The kind of question that would not be asked someone who reports a simple assault because, of course, who wants to be assaulted.  The questions that are still asked today, which seem to find that moment where society can then say "Oh she asked for it because of A, B or C."  I find it quite problematic that Brownmiller did not discuss the fact that most rapists are known by their victims "Yet the majority of women raped in the United States know their attackers in a social context"(p 21).  This fact needs to be shouted from the rooftop because it is not as obviously known as one would think.  In a conversation with some university-educated friends, I was shocked to learn that this was completely new to them and some of the ladies did not believe and still believe that rape happens to those women who are out late and by scary, unknown strangers.  The theory that rape occurs because a man is at the mercy of sexual desires(p 25) because of what a women was wearing needs to be eradicated, sadly there are still many women who believe this narrative.

    I have been thinking about my major paper and so far I have an overall theme "Rape as a Tool of War".  It needs to be fine tuned and I still need to figure out which direction I will take it. Brownmiller talks about rape in times of war as "...not an act against the women herself"(p 18).  She says that "Rather, the act is a direct threat to the ownership of the man who is the rapist's enemy."(p 18).  This was horrifying to read but is fairly accurate.  If a woman is seen as a man's property among his other properties, house, farm or business, it is a horribly vicious way to destroy another's man's property to go after his women. 

Ready for Radical Change

This week’s readings were full of radicalism and passion, some of my favorite things. And while at times they were hard to read, and to agree with at some points, I found them to have a strong validity, especially since they were aiming to start a conversation around this idea that rape is a form of systematic oppression, and not just individual circumstances. The idea that rape was an individual issue could not continue and it was time to turn the issue on its head. With keeping this in mind, the radical standpoints needed to drive this point home, in order to cause outrage, and evidence towards this far-reaching issue.

MacKinnon’s piece surrounding consent really stuck with me, in a number of different ways. It gave me ways to understand why the law fails survivor’s so often, and how so many of sexual assault survivors can be said to be lying. However, I struggled with this idea that all heterosexual sex is constructed in a way that can never truly be consensual. She is basing this off a model where the man is always pursuing the women for sex, where he is engaging and she is always the one consenting. MacKinnon is trying to argue that because of power imbalances that exist, this consent is always coercive and can never truly be from a place of equality. However, I think this takes away women’s agency to want sex, and to enjoy sex. This idea that women can never be the ones to pursue sex is outdated, and stomps on a movement of sex positivity. This model doesn’t allow for men to be the ones who need to consent, if and when the women in this scenario is the one pursuing the sexual relationship.

This week's readings made me feel angry, but also empowered, because of the passion and conviction of the voices shining through from these women. Dworkin's piece was full of power, and it made me want to demand the right to have a world free of sexual assault. It made me want to be able to consent to sex without MacKinnons voice in the back of my mind questioning the validity of those words. I’m sad that I don’t already live in a world where this exists. I’m sad that not much has changed in the way people view consent or sexual assault since MacKinnon wrote her piece, but I am so ready for that change.

Protective/ Being Protected: Manifestations in Girls Movement and Resulting Non-Employment in Physical Labour and Sports

Brownmiller theorizes that there are two primary political functions for the act of rape. First is that “it ensures the continued and necessary protection of women by men” and, that women have a role in times of conflict as property of the militia to be protected, or to be raped and killed by the men of the competing force (Brownmiller qtd in Cahill 17). During war we train our soldiers to think in an “us vs. them” binary. In this binary the damaging of “property” belonging to the opposing force is seen as necessary. Before women took the right to vote, they served under their husband’s names and were essentially their “property” which manifested in women being raped or killed in conflict in order for one side to claim superiority or dominance over the other side. Because women weren’t fighting in wars or seen or socially constructed as being able to be protective and instead always in need of protecting, women weren’t allowed in combat in the United States military until the 1990’s.

            The social construction of women needing protecting and men being protective has molded the way we categorize jobs, physical capacity and, capabilities. The clandestine manner in which gender roles are reproduced effect the way we teach children to move their bodies. Boys are taught to use their bodies to their full capacity and, to get up when they’re knocked over or roughed up. Girls are taught to sit nicely, and take up less space so that they get in the way of a boy. This then reflects in girl’s movements being smaller, and for it to be more challenging to use their bodies as vessels of strength and power better utilized in every day life and sports.

            Rougher sports including rugby, football and hockey are then ultra-masculinized and pegged as being too rough or hard for a women’s “less substantive” and less muscular body. In turn we have created rules to make the sport “safer” for more feminine physiques. Women are seen as too fragile to take a shoulder check, or fend off a fight. These rules make hockey less fun and desirable to watch and, keeps interest on women’s sports at a low and, is seen as being inferior to men’s. As a result, women’s leagues are few and far between because of lack of public interest, and lack of confidence in girl’s physical movements. This continues to reestablish gender norms that keep fragile bodies fragile and, muscular male bodies as protective and resilient.  The lack of women’s hockey leagues embeds the message that women are less adept at playing sports and physical trades because they aren’t “physically capable” and, make less money because of it.

            Because of women being less capable and making less money, the ideology that women are for protecting and, can’t protect themselves or provide physical labor satisfactorily it again instills the view that women shouldn’t be able to be physically strong.

Work Cited

Cahill, Ann J. Rethinking Rape. Ithaca: Cornell UP, 2001. Print.