Transcript: Catharine Mackinnon on Power and Rape Laws | May 20, 2001

A slate with two Doric columns reads "Catharine Mackinnon. 'A Feminist reappraisal of politics and law: Power.'"

[applause]

Catharine Mackinnon stands behind a carved wooden lectern in a university classroom and addresses an unseen audience. She's in her sixties, with long gray hair in an updo. She's wearing a black blazer over a pink frilled blouse.

She says I'M GOING TO START HAVING
SAID THAT WHICH IS ALREADY,
I THINK, PROBABLY
FAIRLY PROVOCATIVE.
A REALLY UNCONTROVERSIAL
OBSERVATION, AND THAT IS
JUST SIMPLY THAT WOMEN'S
EXPERIENCE HAS NOT
STRUCTURED EITHER THE FORM
OR THE CONTENT OF THE
SOCIAL INSTITUTIONS OR
NORMS THAT ANIMATE THE LAW.
AND ACTUALLY, MEN'S
EXPERIENCE HAS.
THE PEOPLE WHO CREATED OUR
INSTITUTIONS WERE MEN.
THEY HAD MEN'S LIVES, AND
THEY WROTE LAWS BASED ON
WHAT MADE SENSE TO THEM
COMING OUT OF THOSE LIVES.
IT'S ALSO, I THINK, NOT
A VERY CONTROVERSIAL
OBSERVATION TO SAY THAT IN
LEGAL INSTITUTIONS, YOU
FIND THE SEXES TACITLY,
PERVASIVELY, PRESUMED
TO BE EQUAL.
BUT, ACTUALLY, IN SOCIETY,
YOU FIND THE SEXES
PERVASIVELY UNEQUAL.
THE CONSEQUENCES FOR WESTERN
LIBERAL THOUGHT HAVE, I
THINK, BARELY BEGUN TO BE
MAPPED, OF THE TENSION
BETWEEN THOSE TWO THINGS.
THAT IS, THE INSTITUTIONAL
ASSUMPTION OF EQUALITY WHILE
LACKING ACTUAL VOICE AND
PARTICIPATION IN THE
CREATION OF THE
INSTITUTIONS, TOGETHER WITH
A PERVASIVE AND CONTINUED
INEQUALITY ACROSS SOCIAL
LIFE HOWEVER MARGINALLY
IMPROVED, MAINLY IN ELITES.
WHAT I'M GOING TO BE
ENGAGING IN IS AN ATTEMPT,
PART OF AN ATTEMPT, TO
PRODUCE A SUBSTANTIVE
RATHER THAN ABSTRACT
ANALYSIS OF LAW BASED ON
THESE OBSERVATIONS.
THAT IS BASED ON LOOKING
ON THE ACTUAL INEQUALITIES
BETWEEN WOMEN AND MEN IN
SOCIAL LIFE, AND SEEING WHAT
THE CONSEQUENCES ARE OF THAT
ACTUAL INEQUALITY FOR A LAW,
PARTICULARLY FOR A LAW
THAT PRESENTS ITSELF AS
MERELY MAKING A SET
OF ABSTRACT, NORMAL
ASSUMPTIONS AND BUILDING A
SET OF INSTITUTIONS THAT
ARE, THEMSELVES, NOT
REGARDED AS BEING GENDER
BIASED, AND ANIMATED BY
NORMS THAT ARE NOT REGARDED
AS BEING GENDER BIASED.
AND I WANT TO PARTICULARLY
LOOK AT AREAS OF LAW THAT
ADDRESS CENTRAL SOCIAL AREAS
IN THE SOCIAL INEQUALITY
BETWEEN WOMEN AND MEN THAT
ARE BOTH, IN MY VIEW,
CRITICAL AREAS, BUT
ALSO ONES IN WHICH THE
INEQUALITY BETWEEN THE
SEXES IN SUBSTANCE AND LIFE
IS HIGHLY VISIBLE.
AND THAT WOULD BE THE AREAS
THAT I'M GOING TO TALK
ABOUT, AND FOCUS ON IN
PARTICULAR ARE RAPE LAW,
AND LAW ON TRAFFICKING IN
WOMEN, SPECIFICALLY IN THE
FORM OF LAWS AGAINST
PROSTITUTION AND LAWS IN
THE AREA OF PORNOGRAPHY.
WHAT I WILL BE LOOKING AT
THROUGHOUT THESE THREE
LECTURES ARE THE
IMPLICATIONS THAT UNEQUAL
SOCIAL POWER HAVE FOR LAW,
AND THE IMPLICATIONS THAT
THE INSTITUTIONALIZATION OF
THAT UNEQUAL POWER IN LAW
THEN HAVE BACK
ON SOCIAL LIFE.
IN THE FIRST LECTURE, I'M
GOING TO TALK ABOUT HOW, AND
ATTEMPT TO ANALYZE, TO GET
AHOLD OF HOW THE SOCIAL
POWER OF MEN OVER WOMEN
WORKS IN SOCIAL LIFE.
IT'S A BIT LIKE TALKING
ABOUT HOW GRAVITY WORKS,
YOU KNOW?
IT'S EXTREMELY HARD TO
REALLY GET A HOLD OF IT.

A caption appears on screen. It reads "Catharine Mackinnon. 'Politics and law: Power.'"

Catharine continues YOU COULD START TALKING
ABOUT ANYTHING,
PRACTICALLY, AND IT WOULD
HAVE AN EFFECT ON IT, AND
YOU CAN SAY, SO THAT'S
GRAVITY, YOU KNOW?
AND IT WOULD BE... THAT
DOESN'T MAKE IT IMPOSSIBLE,
BUT ITS VERY PERVASIVENESS
MAKES IT HARD TO GET A HOLD
OF, ESPECIALLY BY ANALYTIC
TOOLS THAT ARE USED TO
DESCRIBING THINGS ACCORDING
TO THEIR EDGES, OR THE
DIFFERENCE BETWEEN THAT
EDGE AND THAT SIDE, OR IN
TERMS OF BACKGROUND
AND FOREGROUND.
WELL, THIS IS THE
FOREGROUND, YOU CAN SEE IT
AS DISTINCT FROM
THE BACKGROUND.
WELL, NONE OF THAT WORKS
REALLY VERY WELL FOR THE
SOCIAL POWER OF MEN OVER
WOMEN BECAUSE IT'S SIMPLY
PERVASIVELY MORE OR LESS
UTTERLY EVERYWHERE, ALTHOUGH
IN DIVERSE FORMS.
SO I WANT TO TRY TO DO THAT
TASK, AND TALK ABOUT HOW IT
WORKS, AND THEN TALK ABOUT
HOW IT IS INFUSED INTO THE
LAW OF SEXUAL ABUSE, AND
PERVASIVELY AFFECTS CENTRAL
NORMS, DYNAMICS, SOME
DOCTRINES, EVEN THE RULING
ETHOS OF THE LEGAL SYSTEM
AS CAN BE TRACED IN THE
RAPE LAW.
AND I THEN WANT... WHAT I'M
ASKING, THE QUESTION I'M
TRYING TO COME UP WITH AN
ANSWER TO IN THIS FIRST
INVESTIGATION IS THE
QUESTION WHY DOESN'T THE
RAPE LAW WORK?
THE SIMPLE ANSWER IS BECAUSE
IT BUILDS IN THE SOCIAL
INEQUALITY OF THE SEXES.
THAT IS TO SAY THE VERY
THING THAT PRODUCES THE
PROBLEM THAT GIVES RISE
TO THE NEED FOR IT IN THE
FIRST PLACE.
BUT TO HAVE THAT MAKE SENSE
REQUIRES CONSIDERABLE
MORE EXPOSITION.
THE SECOND LECTURE, I'M
GOING TO FOCUS ON THE
QUESTION OF CONSENT WHICH
IS CENTRAL TO THE LAW OF
RAPE, AND ALSO TO, IN VARIOUS
WAYS, SOCIAL REALITIES OF
PROSTITUTION
AND PORNOGRAPHY.
I'M GOING TO TALK ABOUT
ITS MYTHIC PROPERTIES,
ESPECIALLY IN RAPE LAW, AND
THE IMPACT THAT AN ANALYSIS
OF INEQUALITY OF POWER HAS
ON THE MEANINGFULNESS AND
USE OF THE TERM CONSENT.
IN THE THIRD LECTURE, I'M
GOING TO ASK THE QUESTION,
CAN MEN REPRESENT WOMEN
GIVEN WHAT I'VE BEEN
DISCUSSING IN
THE FIRST TWO?
SO THE SECOND AND THIRD
LECTURES REALLY TAKE UP
CENTRAL INSTITUTIONS
OF LIBERAL DEMOCRACY.
THAT IS CONSENT.
THE IDEA PEOPLE CONSENT TO
LAW, THAT PEOPLE CONSENT TO
BE GOVERNED AND SO ON, AND
THE THIRD ONE, THE IDEA OF
REPRESENTATIVE INSTITUTIONS
AS BEING CENTRAL TO DEMOCRACY.
AND I'M GOING TO ATTEMPT TO
ANSWER THE QUESTION CAN MEN
REPRESENT WOMEN BY NOTICING
THAT THEY DO SO EVERY DAY
IN PORNOGRAPHY, AND LOOK AT
HOW WOMEN ARE REPRESENTED,
PRINCIPALLY BY MEN, IN
PORNOGRAPHY, AND SEE WHAT AN
INVESTIGATION OF THAT
CONCRETE FORM OF
REPRESENTATION DOES OR
MEANS FOR REPRESENTATIVE
INSTITUTIONS IN A
DEMOCRATIC SOCIETY.
SO THIS FIRST LECTURE WILL
LAY OUT A CRITIQUE OF
INEQUALITY BETWEEN WOMEN
AND MEN IN TERMS OF AN
INVESTIGATION OF THE
MEANING OF THIS PHRASE MALE
POWER, AND TRACE THEN LATER
THE SECOND TWO WILL TRACE
THE IMPLICATIONS OF THAT
ANALYSIS FOR THESE TWO
CORNERSTONES OF WESTERN
LIBERAL DEMOCRACY.
TWO CORNERSTONES THAT ARE
FUNDAMENTAL, ACTUALLY, IN
HOW THE LIBERAL STATE IS
JUSTIFIED, AND HOW IT'S SEEN
TO BE LEGITIMATE.
NOW, THIS ANALYSIS OF POWER,
I AM GOING TO PROCEED TO
REALLY ANALYZE LESS THE
ABSENCE OF AN UNDERSTANDING
OF GENDER INEQUALITY IN
EXISTING THEORIES OF LAW
AND POLITICS, AND MORE
ATTEMPT TO SUPPLY THE
MISSING ANALYSIS.
THAT IS THE ANALYSIS THAT
APPEARS TO BE MISSING.
I WILL JUST, HOWEVER, REALLY
BRIEFLY SKETCH THE STANDARD
MODEL OF POWER IN POLITICS
AND LAW, THE BASIC
UNDERSTANDING OF IT THAT
ANIMATES THE WESTERN
POLITICAL TRADITION.
THE FIRST FEATURE OF IT IS
THAT IT ENVISIONS... THAT
POWER TAKES PLACE IN
ONE-TO-ONE INTERACTIONS.
YOU TYPICALLY GET
DISCUSSIONS OF IT ALONG THE
LINES, POWER IS WHEN A
GETS B TO DO C, WHICH B,
OTHERWISE, WOULD
NOT CHOOSE TO DO.
YOU WILL NOTE, FIRST OF ALL,
THAT THE INDIVIDUALS ARE
ALL INTERCHANGEABLE.
ANYBODY COULD BE A OR B.
AND C COULD BE
ANYTHING AT ALL.
AND THE TERM CHOICE IS
PRESENTED AS SORT OF
ABORIGINAL, PRIOR
TO THIS INTERACTION.
THAT IS, CHOICE IS A TERM
USED TO INVOKE FREEDOM.
AND POWER, THEN, INTERVENES
WHEN A, WHO IS NOT MARKED
BY RACE, GENDER, CLASS,
SEXUAL ORIENTATION,
ANYTHING, OR AGE, OR
PHYSICAL OR MENTAL STATE OF
ABILITY, GETS B, SIMILARLY
AN UNMARKED HUMAN, TO DO
SOME ANYTHING THING.
YOU HAVE NO GROUP GROUNDS
GENERALLY ARISING HERE,
NOT GENERALLY PART OF IT.
I'M NOT SAYING THERE ARE NO
LIBERALS WHO TAKE THINGS
LIKE GROUP GROUNDS INTO
ACCOUNT, BUT I'M SAYING THE
GENERAL MODEL OF WHAT POWER
IS, AND WHICH COMES UP IN
THE INCOMPREHENSION OF
PEOPLE, WHEN YOU TRY TO
TALK TO THEM ABOUT THE
WAY MALE POWER WORKS, HAS
GREATLY TO DO WITH THE FACT
THAT THEY ARE IMAGINING
THAT IT TAKES PLACE
IN THESE ONE-TO-ONE
INTERACTIONS THAT PEOPLE
COME TO STRIPPED OF
PARTICULARITY, IF YOU WILL.
ANOTHER FEATURE OF THE
STANDARD COMPREHENSION OR
ANALYSIS OR UNDERSTANDING OF
POWER IS THAT ITS MEANS ARE
THINGS THAT ACTUALLY
HAROLD LASSWELL HELPFULLY
DESCRIBED AS INDULGENCES
AND DEPRIVATIONS.
THAT IS, THE GIVING OF A THING,
THE TAKING AWAY OF THINGS.
THESE THINGS ARE DISCRETE.
THEY ARE MAINLY MATERIAL IN
THE STANDARD UNDERSTANDING
OF POWER, LIKE MONEY.
AND NO ONE THINKS THEY HAVE
TO EXPLAIN HOW IT COULD BE
THAT THE GIVING OF MONEY
PRODUCES AN INCENTIVE IN A
PERSON TO DO
SOMETHING, FOR EXAMPLE.
THIS IS HOW YOU KNOW YOU'RE
ENTERING ABORIGINAL TERRITORY.
WHEN PEOPLE DON'T HAVE TO
EXPLAIN HOW IT IS SOMETHING
HAS POWER, RIGHT?
AND IT'S ALSO ESSENTIALLY
REGARDED AS A CONSCIOUS PROCESS.
THAT IS SOMEONE MEANS TO GET
SOMEONE TO DO SOMETHING,
AND THAT OTHER PERSON GOES,
OOPS, I GUESS I HAVE TO DO
THAT THING BECAUSE SOMEONE,
IF I DON'T, THEY WON'T GIVE
ME THIS THING, OR THEY WILL DO
THIS BAD TO ME, OR WHATEVER.
SO IT'S A VERY, YOU KNOW,
FRONTAL LOBE ACTIVITY
THIS EXERCISE OF POWER.
AND IT IS ALSO LIKE THAT
FOR THE PEOPLE OVER WHOM
IT IS EXERCISED.
YOU KNOW WHEN IT'S BEING
DONE TO YOU, AND THE PEOPLE
WHO ARE DOING IT KNOW
THAT THEY'RE DOING IT.
THIS IS HOW IT TENDS
TO BE TALKED ABOUT.
IT ALSO IS A
NON-CUMULATIVE PROCESS.
IT HAS AN ATOMISTIC
QUALITY TO IT.
IT HAPPENS AS A ONE
TIME, ONE SHOT THING.
IF IT HAPPENS TO YOU, IT
JUST HAPPENS IN THIS ONE
TIME THING, YOU WITH YOUR
UNMARKED QUALITIES, AND
WITH THESE CONSCIOUS AND
USUALLY MERELY MATERIAL
CARROTS OR STICKS.
AND IT DOESN'T
ADD UP IN ANY WAY.
THIS A GETTING B TO DO C
THING HAPPENS IN THESE
ONE TIME INTERACTIONS, YOU
KNOW, LIKE BILLIARD BALLS
THAT, YOU KNOW,
INTERCONNECT AND THEN BOUNCE
OFF EACH OTHER, AND DON'T
INTERCONNECT AGAIN.
AND NOTHING ADDS UP.
THAT IS, JUST AS YOU'RE NOT
A MEMBER OF A GROUP THAT IS
CUMULATIVELY CHARACTERIZED
BY ANY LACK OF ANY THING,
YOU DON'T EXPERIENCE
THESE THINGS IN, IF THE
DEPRIVATION OF POWER IS
HAPPENING TO YOU, IN A
GREAT PILE UP, IN A WAY IT'S
ALMOST HARD TO SEPARATE ONE
THING FROM ANOTHER.
IN A WAY THAT IT'S HARD TO
EVEN IDENTIFY NECESSARILY
WHERE IT'S ALL COMING FROM.
IT JUST IS NON-CUMULATIVE,
NON-ADDITIVE EVEN.
AND THEN THE FINAL
FEATURE OF POWER AS IT'S
CONVENTIONALLY UNDERSTOOD
IS THAT PHYSICAL FORCE IS
ITS ULTIMATE SANCTION, AND
IT IS SORT OF EVERYTHING IS
KIND OF BACKED OFF FROM
PHYSICAL FORCE AS BEING THE
ULTIMATE SANCTION.
THAT IS THE IDEA IS THE REAL
MEASURE, THE REAL PLACE,
THE PLACE YOU KNOW WHEN
POWER IS HAPPENING, IS WHEN
SOMEBODY'S ENGAGING IN
PHYSICAL FORCE AGAINST
SOMEBODY ELSE.
PHYSICAL AGGRESSION,
PHYSICAL DOMINANCE,
PHYSICAL VIOLENCE.
SO VIOLENCE IS ITS SORT OF
ULTIMATE APEX INSTANCE, AND
ANYTHING LESS THAN THAT IS
LESS POWERFUL, THEREFORE.
THIS IS ULTIMATE POWER, AND
ANYTHING LESS THAN THAT IS
REGARDED AS LESS POWER.
SO FOR WOMEN RELATIVE
TO MEN, THIS BEING A
GENERALIZATION AND NOT TO
SUGGEST THAT ALL MEN HAVE EQUAL
POWER OVER ALL WOMEN IN ANY
WAY, BUT RATHER TO TALK
ABOUT THE SOCIAL RELATIONS
BETWEEN TWO GROUPS IN
GLOBAL POLITICAL
TERMS, ALL RIGHT?
THAT'S WHAT I'M DOING HERE.
AND WHAT I'M TRYING TO DO
WITH THIS IS INSTEAD OF
RESISTING THE CIRCULARITY
OF MALE POWER, WHICH I
THINK WILL BE APPARENT IN A
MINUTE, I'M TRYING TO GET
A HOLD OF IT.
IN OTHER WORDS, I THINK ONE
OF THE REASONS PEOPLE DON'T
THINK VERY WELL ABOUT MALE
POWER IS THEY ARE ALWAYS
LOOKING FOR
CAUSE AND EFFECT.
THAT IS, THEY'RE ALWAYS
TRYING TO FIGURE IT OUT
LINEARLY, LIKE
WHERE DOES IT START.
DOES IT START
HERE AND GO THERE?
AND THAT NEVER WORKS, AND
NOT JUST BECAUSE PEOPLE ARE
SMART AND CAN FIGURE OUT IT
COULD JUST AS WELL START
THERE AND GO HERE, OR IT
COULD JUST AS WELL, AND
DOES, BUT RATHER BECAUSE
THE REALITY OF IT IS IT IS
BY NATURE TAUTOLOGOUS
WITH ITSELF.
THAT IS, IN SOCIETY,
IT IS, BY NATURE,
CIRCULARLY INTERCONNECTED.
SO, AS I SAY, INSTEAD OF
RESISTING THAT CIRCULARITY,
MY ATTEMPT HERE IS NOT TO
TRY AND MAKE IT LINEAR, BUT
TO CAPTURE IN A THEORETICAL WAY
ITS CIRCULAR INTERCONNECTEDNESS.
NOW, I THINK, ACTUALLY,
SOME THINGS THAT I JUST
DESCRIBED AS BEING PART
OF THE STANDARD MODEL IN
POLITICS AND LAW, ARE
PERFECTLY USEFUL, AND DO
HAPPEN, CERTAINLY, AND ARE
FORMS THAT ONE COULD SAY MEN
EXPRESS AND EXERCISE
POWER OVER WOMEN.
HOWEVER, I DO NOT THINK THAT
IF YOU THINK OF POWER IN
THOSE WAYS, THAT YOU WILL
EVER UNDERSTAND THE WAY IN
WHICH MALE POWER OVER
WOMEN, QUA SYSTEM OF POWER
ACTUALLY FUNCTIONS.
FIRST OF ALL, IT
IS GROUP-BASED.
IT IS NOT INDIVIDUAL.
IT ATTACHES ITSELF
TO INDIVIDUALS.
IT HAPPENS THROUGH
INDIVIDUALS, BUT IT IS NOT
ABOUT INDIVIDUALS.
INDEED, NOBODY IS
UNMARKED IN THE SYSTEM.
SO IF YOU'RE LOOKING FOR AN
A AND AN B, AND YOU WANT TO
PRESUME THAT THEY COME INTO
IT ALREADY AS EQUALS, AND
THAT THEY ARE UNIQUE
INDIVIDUALS, AND NOW YOU
ARE GOING TO SEE THE
OPERATION OF MALE POWER AT
WORK, YOU WILL
BE DISAPPOINTED.
INDIVIDUALS AREN'T
THE UNIT OF IT,
AND NOBODY'S
UNMARKED IN IT.
SO IT'S A GROUP-BASED THING
THAT HAPPENS THROUGH A VAST
DIVERSITY AND VARIETY OF
INTERACTIONS AMONG PEOPLE.
BUT PEOPLE WHO THINK OF
THEMSELVES AS INDIVIDUALS
ARE UNLIKELY TO KNOW THAT
IT'S EVER EVEN HAPPENED TO
THEM, FOR EXAMPLE.
THE SECOND FEATURE ABOUT IT
THAT IS DISTINCT IS THAT IT
WORKS PRIOR TO DISCREET
INTERACTIONS, FUNDAMENTALLY,
TO SITUATE PEOPLE ON A
DIFFERENT PLANE FROM EACH OTHER.
AND IT PRINCIPALLY WORKS
THROUGH WHAT SOCIAL SCIENTISTS
ANALYZE AS SOCIALIZATION,
WHICH IS A COMPREHENSIBLE
WORD USED TO DESCRIBE SORT
OF EVERYTHING. RIGHT?
THAT IS TO SAY, YOU KNOW,
ALL THE WAYS IN WHICH ONE
LEARNS MASCULINITY AND
FEMININITY ARE PRIOR... I MEAN,
BEFORE A GETS ATTEMPTING TO
GET B TO DO C, A BECOMES A
WOMAN OR A MAN WITH
MASCULINITY OR FEMININITY,
IN ALL OF ITS PARTICULARS.
THAT IS ALL OF ITS
PARTICULARS INCLUDING CLASS
SPECIFICITY, INCLUDING
RACIAL AND ETHNIC
PARTICULARITY WHICH, WHERE
AND HOW THOSE ARE VEILLANCED
IN TERMS OF SOCIAL
RANKING, HOW THOSE GROUP
CHARACTERISTICS OPERATE ARE
CHARACTERISTICS THAT PEOPLE
BRING WITH THEM TO
THESE INTERACTIONS.
THEY DON'T JUST COME AS BARE
A, THEY COME WITH THESE
PARTICULARITIES, WITH
THE SOCIALIZATION.
AND IN PARTICULAR, THE
ASSUMPTION OF FREEDOM THAT
GOES ON THAT IS SOME KIND
OF STATE OF NATURE THAT'S
SUPPOSED TO EXIST ALL THE
TIME, EVERYWHERE, EVEN IN
SOCIETY, SUCH THAT THESE
THINGS CALLED CHOICE HAPPEN,
THAT ARE NOT ONLY COMPLETELY
FREE, I MEAN, THAT ARE
COMPLETELY FREE, BUT
ARE REGARDED AS TOTALLY
UNBURDENED BY ANY PRIOR
SET OF INCULCATED VIEWS,
SELF-IMAGES, INCENTIVES,
ANYTHING, THIS CHOICE
BUSINESS TAKES PLACE UNDER
A SET OF CONDITIONS THAT
I HAVE FOUND IT USEFUL TO
DESCRIBE AS ADAPTIVE
PREFERENCES, WHICH IS A
TERM USED BY ECONOMISTS,
PRINCIPALLY, TO DESCRIBE HOW
PEOPLE COME TO RESEMBLE THE
CONSTRAINTS
PLACED UPON THEM.
HOW THEY COME, INDEED, TO
PREFER THAT WHICH THEY HAVE
NO CHOICE BUT TO DO.
YOU KNOW IT'S CALLED I JUST
LIKE IT, IT'S FEMININE, OR
JUST A WHOLE RANGE OF WAYS
THAT ONE COMES TO PREFER
ONESELF, EXPERIENCE ONESELF,
IDENTIFY ONESELF, FEEL
BETTER ABOUT ONESELF.
IT GOES TO EMOTIONS, IT GOES
TO AESTHETICS, IT GOES TO
THE WHOLE RANGE OF THE
WAYS PEOPLE EXPERIENCE
THEMSELVES AS INDIVIDUALS,
ESPECIALLY AS THEY ARE
EMBODIED IN BODIES THAT
ARE SEXED AND GENDERED IN
SOCIETY SO THAT ALL THIS
SOCIALIZATION CREATES OUR
A'S AND B'S IN WAYS THAT
SITUATE THEM DIFFERENTLY
RELATIVE TO EACH OTHER,
SUCH THAT WHEN... I'M
SAYING THIS IS A FORM
THROUGH WHICH MALE POWER
BECOMES SOCIALLY
INSTITUTIONALIZED THAT YOU
ABSOLUTELY CAN'T EVEN SEE IS
EXISTING THERE, IF YOU ARE
LOOKING FOR IT IN
THE STANDARD WAY.
YOU WOULDN'T CALL
THAT POWER, ACTUALLY.
ANOTHER FEATURE OF THE WAY
MALE POWER WORKS IS THAT THE
RANKINGS THAT IT
PRODUCES ARE CUMULATIVE.
THEY DO ADD UP.
THEY ARE, IN FACT, IN MANY
RESPECTS EVEN TODAY, MUCH
MORE LIKE FEUDAL STATUS
THAN ANYTHING ELSE.
THEY ARE A SET OF RANKINGS
THAT GET EMBEDDED AND
EMBODIED IN PEOPLE, IN
GROUPS, IN INSTITUTIONS, IN
INSTITUTIONAL PREFERENCES
AND WAYS OF VIEWING MERIT,
WAYS OF GIVING WEIGHT AND
CREDIBILITY TO PEOPLE,
INCLUDING IN THE LAW, THAT
REALLY ARE, AGAIN, MUCH
MORE FEUDAL-LIKE AS STATUS
RANKINGS, RATHER THAN EVER
HAVING YET REACHED THE
STAGE OF BEING RELATIVE TO
MERIT, OR RELATIVE TO
INDIVIDUAL PARTICULARITY,
AS PEOPLE SEEM TO IMAGINE
TAKES PLACE UNDER CAPITALISM.
THE OTHER THING ABOUT IT
IS, YES, IT IS ULTIMATELY
SANCTIONED BY PHYSICAL FORCE
AND VIOLENCE, AND THERE IS
A TREMENDOUS AMOUNT OF
PHYSICAL FORCE AND VIOLENCE
THAT ENFORCES MALE SUPREMACY
AS A POLITICAL SYSTEM.
HOWEVER, IT IS REALLY
OFTEN AT THE SAME TIME
UNNECESSARY TO RESORT
TO THAT VIOLENCE.
IT IS ONLY ACTUALLY
NECESSARY EITHER TO DO IT
SOMETIMES, OR TO NEVER HAVE
NECESSARILY INFLICTED IT ON
A INDIVIDUAL, BUT TO HAVE
INFLICTED IT ON MEMBERS OF
THAT INDIVIDUAL'S GROUP
THAT PARTICULARLY WITH
SUBORDINATED PEOPLES,
SUBORDINATED PEOPLES KNOW
THAT ANYTHING THAT'S DONE
TO ANYONE CAN BE DONE TO
ANY OTHER ONE.
AND THEREFORE, THEY KNOW
THEY'RE A GROUP IN A WAY
THAT MEMBERS OF DOMINANT
GROUPS TEND NOT TO KNOW
THAT THEY'RE
MEMBERS OF A GROUP.
THEY THINK THEY'RE
INDIVIDUALS.
SO THAT ONCE... TO WORK AS
AN INSTRUMENT OF TERROR,
FOR EXAMPLE, ALL YOU HAVE
TO DO IS RAPE SOME WOMEN,
AND ALL WOMEN KNOW THAT
THAT COULD HAPPEN TO THEM.
EXCEPT THOSE WHO FIND WAYS
TO DENY THAT TO THEMSELVES,
WHICH CAN BE A SURVIVAL
MECHANISM, BUT IN GENERAL,
WOMEN TEND TO KNOW THAT
WAYS IN WHICH SOME WOMEN
ARE TREATED ARE WAYS IN WHICH
THEY COULD BE TREATED, TOO.
AND THEN THEIR RESPONSES
TO THAT ARE EITHER TO FACE
THAT OR DENY IT
OR SOMETHING.
BUT THOSE ARE ALL RESPONSES
TO THE ACTUAL GUT LEVEL I
BELIEVE RECOGNITION OF
BEING A MEMBER OF A GROUP.
THEREFORE, THERE WILL BE A
LOT OF VIOLENCE, BUT THE
VIOLENCE IS GOING TO BE
JUST REALLY THE TIP OF THE
ICEBERG, THE LEAST OF IT,
THE FAR OUT END OF IT AS
THE WAY MALE
POWER IS ENFORCED.
AND PEOPLE WHO ARE GOING
AROUND TRYING TO FIGURE OUT
WHY WOMEN DO THINGS THEY DO
WHEN THERE'S NO GUN AT OUR
HEAD, ARE IN THE LIGHT OF THIS,
ASKING THE WRONG QUESTION.
NOW, THERE ARE SOME GENERAL
FEATURES THAT EMERGE FROM
THIS ANALYSIS OF POWER
ON THE MALE MODEL.
AND I JUST WANT TO BE
REALLY BRIEF ABOUT THESE.
THE FIRST IS THAT, I THINK,
WHEN YOU LOOK AT IT THIS
WAY, YOU COME TO THE
CONCLUSION THAT SOCIAL
POWER, AT LEAST IN ITS MALE
FORM, AND MAYBE IN OTHER
FORMS AS WELL, IS
FIRST CONCRETE.
AND IT'S ONLY ABSTRACT IN
THE MINDS OF ACADEMICS.
IN OTHER WORDS, THERE'S NO
SUCH THING AS POWER, PER SE,
WHICH THEN TAKES THE FORM OF
MALE POWER, WHITE POWER, ETC.
THIS SUGGESTS THAT
POWER BUILDS ITSELF FROM
THE GROUND UP FIRST IN REAL
SOCIAL LIFE, AS A FORM OF
DOMINATION, AND THEN...
THAT IS IT ONLY EXISTS IN
CONCRETE FORM.
THEN, PEOPLE TALKING ABOUT
POWER LIKE IT'S SOME CLOUD
UP THERE, A DARK ONE, NO
DOUBT, WHICH SORT OF THEN
COMES DOWN AND FIXES ITSELF
ON CERTAIN, WHO KNOWS WHY
IT CAME TO FIX ITSELF ON
THESE PARTICULAR WHAT
PEOPLE CALL DIFFERENCES
OR DIVISIONS.
THAT'S ONE THEORY
OF IT, RIGHT?
IT STARTS IN THE CLOUDS,
RIGHT, AND THEN IT COMES
DOWN ONTO THE GROUND.
WHAT I'M SUGGESTING HERE
FROM THIS ANALYSIS IS IT IS
FIRST ON THE GROUND
SOMEWHERE, AND YOU NEED TO
THINK ABOUT WHERE ON THE GROUND
IT LIVES AND STARTS BECAUSE
ITS ROOTS ARE HERE.
AND IT'S ONLY UP IN THE
CLOUDS, AS I SAY, FOR PEOPLE
WHO HAVE THE LUXURY
OF THINKING ABOUT IT.
THE NEXT THING THAT I THINK
YOU NOTICE IF YOU'RE WITH
ME SO FAR WITH THIS ON
MALE POWER AS A FORM OF
POLITICAL POWER, THAT
IS POLITICS BEING ABOUT
FUNDAMENTALLY THE ANALYSIS
OF POWER, AS A FORM OF
POWER, HENCE HAVING A
POLITICS, THAT THE SECOND
THING THAT I THINK YOU
NOTICE JUST IN GENERAL
ABOUT IT IS THAT IT
HAS AN ORGANIZATION.
IT HAS A COHERENCE.
IT HAS REGULARITIES
OF MOTION.
IT HAS AN ORDER.
IT CAN BE DESCRIBED AND
CAPTURED, MUCH AS IT LOOKS
CIRCULAR, MUCH AS IT
WORKS LIKE GRAVITY.
WE'RE STILL WAITING FOR
THINGS TO FALL UP, YOU KNOW?
IT DOESN'T HAPPEN LIKE THAT.
AND THAT DOESN'T MEAN, FOR
PEOPLE STILL EVEN AT THIS
MOMENT IN THIS TALK, IN THE
GRIPS OF THE LIBERAL VIEW
THAT IT HAS TO BE
CONSCIOUS, THAT DOESN'T
MEAN IT'S A CONSPIRACY.
I'M ON RECORD NOW.
AND IT DOESN'T MEAN MEN SIT
AROUND AND TRY TO FIGURE
OUT HOW TO HAVE
POWER OVER WOMEN.
THEY DON'T NEED TO.
IT DOES, HOWEVER,
HAVE A LOGIC.
ITS LOGIC IS LIKE THE LOGIC
OF ANY FORM OF POWER.
IT SEEKS ITS OWN ADVANTAGE.
IT SEEKS ITS OWN
PRESERVATION, AND IT SEEKS
ITS OWN GROWTH.
LIKE ANY OTHER FORM
OF POWER, RIGHT?
AND IT RESISTS JUST
DESCRIPTIVELY RESISTS
LETTING THINGS HAPPEN
THAT WILL UNDERMINE ITS
ADVANTAGE, DESTROY IT FROM
PRESERVING ITS OWN SELF,
AND GET IN THE
WAY OF ITS GROWTH.
NOW THAT DOESN'T THAT MEAN NEVER
DOES ONE GET IN THE WAY OF IT.
IT DOESN'T MEAN NEVER
DO YOU QUALIFY IT.
IT DOESN'T MEAN YOU CAN'T
SORT OF REMOVE THE LIMBS,
AND IMPROVE THE SITUATION,
BUT IT DOES MEAN THAT IN
ADDRESSING ISSUES THAT
RAISE QUESTIONS OF MALE
DOMINANCE AND MALE POWER,
THIS IS WHAT YOU'RE UP
AGAINST, RIGHT?
AND AS I SAID, INDIVIDUALS
AREN'T THE UNIT OF THIS ONE,
GROUPS ARE.
BUT ANOTHER FEATURE OF IT
IS THAT WHILE INDIVIDUALS
EMBODY IT, ARE AFFECTED BY
IT, IT DOESN'T NECESSARILY
WORK ITSELF OUT ONE TO ONE
TO A DISCRETE INDIVIDUAL.
CERTAINLY NOT WITH ALL THE
OTHER FORMS OF POWER THAT
ARE INVOLVED HERE, WHICH
INVOLVE RACE, ETHNICITY,
RELIGION, LANGUAGE, CLASS,
SEXUALITY IN ITS BROADEST
FORM, AND SO ON.
CERTAINLY, IT DOESN'T
NECESSARILY WORK OUT ONE
TO ONE TO INDIVIDUALS.
BUT IT IS, IN THIS ANALYSIS
OF IT ANYWAY, NEVER NOT THERE.
IT ISN'T THE ONLY
THING THAT'S THERE.
IT ISN'T ALL THAT'S THERE,
BUT IT'S NEVER NOT THERE.
THE OTHER THING THAT I
NOTICE ABOUT IT, THINKING
THIS WAY, IS THAT THE WAY
IT WORKS ISN'T LIKE A RULE,
YOU KNOW?
IT ISN'T A SIMPLE
RULE LIKE THING.
IT'S MORE LIKE A NORM.
THAT IS, IT'S A TENDENCY, A
TROPISM, A REGULARITY, SUCH THAT
THAT WHICH IS MALE GETS MORE,
HAS MORE, RISES TO THE TOP.
SORT OF TENDS TO PREDOMINATE
RATHER THAN A RULE THAT IS
NEVER BROKEN.
THIS FLEXIBILITY OF IT, THAT
IS IN THIS WAY ITS LACK OF
BEING UTTERLY MONOLITHIC
IS ONE OF THE THINGS THAT
ENABLES IT IN ITS CHARACTER
TO BE UTTERLY RELENTLESS.
IT TRANSFORMS ITSELF
CONSTANTLY WHILE ACTUALLY
LOOKING LIKE IT'S
CHANGING, YOU KNOW?
IT LOOKS LIKE YOU'VE
DONE SOMETHING WITH IT.
AND THEN YOU FIND
IT'S BACK, RIGHT?
AND, YOU KNOW, YOU GO AFTER
ITS MOST VISIBLE FORMS, AND
YOU CHANGE THOSE, RIGHT?
YOU PUT A WOMAN UP
THERE, AND THEN YOU FIND
EVERYTHING ABOUT THE
MASCULINITY OF THE JOB
DESIGN, EVERYTHING ABOUT
THE MASCULINITY OF NORMS TO
WHICH THIS WOMAN NEEDS TO
BE ACCOUNTABLE IF SHE STAYS
IN THIS POSITION,
EVERYTHING ABOUT ALL THE
MEN AROUND WHO ARE MAKING
SURE THAT SHE HAS TO, ETC.,
IT JUST TAKES NEW FORMS,
RIGHT, AND INDEED CAN
EMBODY ITSELF IN WOMEN.
IT'S NOT... THE GOOD NEWS,
IT'S NOT BIOLOGICAL, RIGHT?
IT'S A SOCIAL AND
POLITICAL SYSTEM, RIGHT?
IT PREFERS MEN, RIGHT?
BUT IT ISN'T ULTIMATELY
THAT PICKY ABOUT HOW IT
PRESERVES ITSELF, RIGHT?

[laughter]

Catharine continues NANCY GETS MY JOKES EVERY
SINGLE TIME, RIGHT?
NOW, WHAT IT PRODUCES,
THEREFORE, IS A FORM OF
HIERARCHY THAT PERVADES
SOCIAL RELATIONS, AND CAN
BE WELL DOCUMENTED BY A
NASTY LOOKING SERIES OF
BELL-SHAPED CURVES AND
GRAPHS AND PILES OF DATA,
WHICH OTHERWISE WOULD LOOK
LIKE A BODY COUNT IF NUMBERS
COULD SCREAM.
IT CAN BE DOCUMENTED
BY ECONOMICS, THE
IMPOVERISHMENT OF WOMEN
RELATIVE TO MEN BY STATUS
RANKINGS, THAT IS, WHATEVER'S
MOST VALUED IS MAINLY FOUND
BEING DONE BY MEN, NOT
WOMEN, WHATEVER WOMEN DO IS
MAINLY FOUND NOT BEING VERY
HIGHLY VALUED, FAR LESS PAID.
THAT PRESTIGE, ETC., STATUS,
STATURE, RANK, ALL ATTACH
THEMSELVES IN GENERAL TO
MASCULINITY, AGAIN, NOT
EQUALLY TO ALL MEN, BUT TO
THE MASCULINITY OF MEN, ALL
RIGHT, WHICH SOME MEN
DISAVOW, SOME MEN CHALLENGE,
SOME MEN QUESTION,
SOME MEN ARE DEPRIVED
OF HAVING, SAY ON A
RACIAL OR ETHNIC BASIS,
AS IS WELL SEEN IN THE
UNITED STATES WITH AFRICAN
AMERICAN MEN IN PARTICULAR,
ALL OF THAT REMAINS THE CASE.
BUT THE MASCULINITY OF IT
AND THEM REMAINS A SOCIAL
FORM OF POWER, WHETHER
DISAVOWED, WHETHER IT'S A
DEPRIVATION, WHETHER ONE
IS DEPRIVED OF IT OR NOT.
THE OTHER THING YOU NOTICE
IS A HIERARCHY OF RESPECT,
A HIERARCHY OF VOICE, WHOSE
VOICE COUNTS, AND ALSO, IN
AN INTERESTING WAY, A
HIERARCHY OF VIOLENCE.
AND THAT IS NOT TO SAY THAT
MEN AREN'T VIOLENT TOWARD
EACH OTHER, THEY ARE.
AND IT'S A WAY THEY CREATE
HIERARCHIES AMONG MEN.
BUT THERE IS ALSO THE
SPECIFIC FORM OF VIOLENCE
AGAINST WOMEN, THAT IS
OVERWHELMINGLY BY MEN
AGAINST WOMEN, WHICH
REMAINS GENDER MARKED, EVEN
THOUGH MEN ALSO DO AT LEAST
SOME OF THOSE SAME ACTS TO
EACH OTHER.
NOW, IF ONE IS GOING TO TAKE
THIS SKETCH AND MAP IT ONTO
SEXUALITY, SPECIFICALLY
HETEROSEXUALITY, THE
DOMINANT MODALITY OF
SEXUALITY, THAT IS TO SAY
MALE DOMINANT SEXUALITY,
YOU GET SOMETHING ROUGHLY
THAT LOOKS LIKE THIS.
INCULCATED IN PEOPLE'S
BODIES AND ATTITUDES AND
THE SOCIAL NORMS THAT
CONSTRUCT SEXUAL
INTERACTIONS, YOU HAVE
MASCULINE AND FEMININE
SCRIPTS THAT HAVE
HIERARCHICAL ROLES BUILT
INTO THEM ABOUT WHO DOES
WHAT TO WHOM WHEN, WHO
CHOOSES, WHAT HAPPENS, WHO
COMES FIRST, AS IT WERE,
WHICH REPLAYS, EROTICIZES,
INSTITUTIONALIZES, AND
REPRODUCES A WHOLE
RANGE OF DOMINATING AND
SUBORDINATING ACTIVITIES
WITH TYPICALLY
CHARACTERIZING THE
DOMINANT ACTIVITIES BEING
MEN-MASCULINE, AND THE
SUBORDINATE ACTIVITIES,
WOMEN-FEMININE.
THERE ARE EXTENSIVE
STATUS ROOTS TO THIS
AND IMPLICATIONS FOR IT.
AMONG THE IMPLICATIONS ARE
INCLUDED, FOR EXAMPLE, IF
YOU LOOK AT IT ALONG THESE
LINES, THE NECESSITY TO
KEEP WOMEN POOR SO THAT
HETEROSEXUAL ACCESS CAN BE
ENFORCED ON THEM BY MEN.
AND THEN YOU ALSO FIND
ULTIMATELY THE SANCTION OF
INTIMATE PHYSICAL VIOLENCE
WHICH BEGINS, AND IT'S ODD
TO HAVE THIS NOW IN A
SENTENCE THAT BEGAN WITH
'ULTIMATELY' SINCE THIS
IS ACTUALLY WHAT HAPPENS
FIRST, WITH SEXUAL
ABUSE OF CHILDREN, GIRLS
DISPROPORTIONATE TO BOYS,
BUT BOTH OF THEM AND
EVENTUATES IN RAPE
AND SEXUAL MURDER.
THAT WOULD JUST BE A WAY OF
APPLYING THAT ANALYSIS TO
SHOW HOW MALE POWER
EXPRESSES ITSELF IN AND
THROUGH THE BROADER SOCIAL
CONSTRUCTION OF HETEROSEXUALITY.
NOW, WE ARE IN SOMETHING OF
A POSITION TO BRING TO BEAR
THIS ANALYSIS ON THESE
FEATURES OF MALE POWER IN
THE LAW OF RAPE, SEE HOW
THEY ARE EMBODIED THERE AND
ASK OURSELVES NOW THE
QUESTION, DOES MALE POWER,
AS DESCRIBED, HAVE ANYTHING
TO DO WITH WHY THE RAPE LAW
DOES NOT WORK FOR WOMEN?
WHICH IS THE QUESTION
I WANT ANSWERED.
WHICH, BY THE
WAY, IT DOESN'T.
THERE HAS LONG
BEEN A RAPE LAW.
WOMEN CONTINUE
TO BE RAPED.
I SAY THAT SENTENCE AGAINST
THE BACKDROP OF THE RARE
ASSUMPTION THAT RAPE
IS NOT INEVITABLE.
THEREFORE, IT WOULD SEEM TO
ME THAT IF YOU MADE A CRIME
OUT OF SOMETHING, MAYBE IT
WOULDN'T HAPPEN ANYMORE.
THERE IS A MASSIVE
DISPARITY, IN THE UNITED
STATES, A 10-TO-1 JUST
ABOUT DISPARITY BETWEEN THE
NUMBER OF RAPES THAT
HAPPEN, AND THE NUMBER OF
RAPES THAT ARE EVER REPORTED
TO THE LEGAL SYSTEM.
YOU HAVE A MASSIVE
DISPROPORTIONATE ATTRITION
OF RAPES REPORTED IN
THE LEGAL SYSTEM COMPARED
WITH THE NUMBERS THAT ARE
EVER FURTHER PURSUED BY
THAT SYSTEM AT ALL.
IN THE UNITED STATES,
WE HAVE A THING CALLED
'UNFOUNDING RAPES'.
WHAT THIS MEANS IS THEY
FOUND THEM, AND THEN THEY
UNFOUND THEM.
THAT IS TO SAY, WOMEN REPORT
THEM TO THEM, AND THE POLICE
DECIDE THIS WASN'T
REALLY A RAPE.
NAMELY, SHE WAS TAKING
DRUGS, OR SHE IS A
PROSTITUTED WOMAN, OR THEY
DON'T BELIEVE HER OR WHATEVER.
SO EVEN THAT REPORT OF RAPE
TO THE POLICE, THERE IS AN
UNFOUNDING RAPE IN
THE UNITED STATES.
AND IT'S SUBSTANTIAL.
THEN, THERE IS A
FURTHER ATTRITION, A
DISPROPORTIONATE ONE,
ACTUALLY, COMPARED WITH
OTHER CRIMES OF WHAT ARE
CALLED BY THE PEOPLE WHO
KEEP THESE FIGURES,
COMPARABLY SERIOUS CRIMES,
INTERESTING TERM.
COMPARABLY SERIOUS,
WHAT WOULD THAT BE?
THEY DON'T MEAN MURDER.
THEY DO MEAN BATTERY,
THOUGH, A MAN HITTING OTHER
MEN, ASSAULTING OTHER MEN.
THEY AREN'T TALKING ABOUT MEN
RAPING OTHER MEN, ACTUALLY.
AND SO THERE IS A DRAMATIC
FALL OFF IN PROSECUTIONS
COMPARED TO WHAT THEY
CONSIDER TO BE COMPARABLY
SERIOUS CRIMES, AN
EVEN SMALLER NUMBER ARE
SUCCESSFULLY PROSECUTED.
AND ONCE SUCCESSFULLY
PROSECUTED, A MINUSCULE
NUMBER ARE GIVEN SENTENCES
BEYOND THE MINUSCULE.
YOU THEREFORE HAVE A PICTURE
OF SYSTEMIC FAILURE, AND
THIS IS WITHOUT EVEN
TALKING ABOUT THE DESIGN OF
THE INJURY OF RAPE ITSELF,
WHICH I'M GOING TO DO A
LITTLE BIT MORE TOMORROW
WHEN I TALK ABOUT CONSENT
AND ITS PLACE IN LAW.
THIS IS JUST, AGAIN,
THE BODY COUNT.
SO I DECIDED TO TRY TO MAKE
MYSELF A LIST OF WHAT WAS
THE POWER OF MEN AS
EXPRESSED IN THIS
BIG-PICTURE TAKE
ON THE RAPE LAW.
IF I WERE TO SAY TO MYSELF,
WHAT FORMS DOES MALE POWER
TAKE IN RAPE LAW SUCH
THAT THIS HAPPENS?
AND AT THIS POINT, IT'S, I
THINK, IMPORTANT, TO NOTE
THAT THE MAJOR AND ACTUALLY
ONLY EXCEPTION TO THE
PICTURE THAT I'VE JUST
GIVEN, WHICH IS ULTIMATELY
NOT AN EXCEPTION AT ALL,
AS I'LL EXPLAIN, IS IN THE
UNITED STATES, IN
PARTICULAR AGAIN, THE
PROSECUTION OF AFRICAN
AMERICAN MEN, LARGELY FOR
RAPES THEY DID NOT COMMIT,
AGAINST WHITE WOMEN.
SO WHAT YOU'VE GOT IS A
RAPE LAW THAT WORKS OUT
DISPROPORTIONATELY NOT
PROSECUTING RAPES THAT
LARGELY ONE SUPPOSES
DID HAPPEN, AND
DISPROPORTIONATELY
PROSECUTING RAPES THAT
ACTUALLY
HISTORICALLY DIDN'T.
IN OTHER WORDS, THERE IS AN
INVERSE RELATION BETWEEN
DOING SOMETHING ABOUT
ACTUAL MALE POWER AS
EXPRESSED THROUGH RAPE AND
THE WAY THE RAPE LAW WORKS.
IT NOT ONLY DOESN'T WORK,
IT WORKS IN REVERSE.
IT DOESN'T DO RAPED WOMEN
ANY GOOD AT ALL, JUST TO
PUT IT IN VERY SIMPLY, IS
THIS IN ANYONE'S INTEREST?
IT DOESN'T DO RAPED
WOMEN ANY GOOD AT ALL TO
PROSECUTE A MAN FOR RAPE
WHO DIDN'T RAPE THE WOMAN.
FAR LESS DOES IT DO HIM ANY
GOOD OR THE SUBORDINATED
COMMUNITY ANY GOOD.
SO IT HAS THIS INVERSE
RELATION TO THE ACTUAL
OCCURRENCE OF RAPE.
SO I MADE MYSELF A LIST OF
THE FORMS THAT IT SEEMS TO
ME MALE POWER TAKES
IN THE RAPE LAW.
AND, BASICALLY, THEY
LOOK LIKE THIS.
THE FIRST ONE I WOULD CALL
THE POWER OF INVIOLABILITY.
AND THAT'S A PRIOR
ASSUMPTION THAT THE RAPE
LAW IS ESSENTIALLY BUILT
ON THAT MEN ARE NOT RAPED.
WHICH IS FALSE.
BOTH AS CHILDREN AND AS
ADULTS, MEN, PRINCIPALLY MEN,
ALSO RAPE OTHER
MEN AND BOYS.
BUT MEN ARE DEFINED AS
INVIOLABLE IN A WAY THAT
STICKS THE PRESUMPTION
OF VIOLABILITY ON WOMEN.
WHAT THEN HAPPENS IS THAT
WOMEN ARE SOCIALLY DEFINED
AS THE VIOLABLE SEX IN A WAY
THAT CREATES, I GUESS TO
PUT IT REALLY SIMPLY, THE VERY
OPPOSITE OF ZERO TOLERANCE.
IT CREATES A MARGIN
OF TOLERATION.
THE ASSUMPTION THAT RAPE IS
INEVITABLE IS BUILT INTO IT.
THAT WOMEN QUA WOMEN.
A CERTAIN NUMBER ARE JUST
GONNA BE RAPED, AND YOU CAN
ONLY JUST DO SO
MUCH ABOUT IT.
AND THIS BOTH SELLS OUT MEN
WHO ARE RAPED ENTIRELY, AND
DEFINES AS RAPED ONLY THOSE
WOMEN WHO ARE SUBJECTED TO
WHAT MEN CALL, ON THE
MALE-TO-MALE STANDARD
STEREOTYPICAL MODEL
VIOLENCE, ONLY WHEN ALL
THAT EXTRA STUFF HAPPENS
TO WOMEN THAT DOESN'T LOOK
LIKE SEX, WHICH IS
RECOGNIZED AS VIOLATION,
BUT NOT ACKNOWLEDGED
AS SUCH.
ONLY WHEN ALL THAT EXTRA
STUFF HAPPENS ARE WOMEN
SEEN TO HAVE BEEN RAPED.
SO VIOLENCE AGAINST WOMEN
ONLY LOOKS LIKE VIOLENCE
WHEN THE KINDS OF ACTS
THAT MEN DO WHEN THEY'RE
FIGHTING WITH EACH
OTHER TAKE PLACE.
THAT IS, BEATING.
GENDER NEUTRAL VIOLENCE,
YOU MIGHT WANT TO CALL IT.
IT'S ALSO PART OF THE VIEW,
IN THE RAPE LAW, THAT JUST
PERVADES IT, THAT REALLY
THERE'S NOT MUCH OF AN
INJURY HERE.
THAT RAPE, PER SE, DOESN'T
INJURE WOMEN, IT JUST...
IT WAS JUST SORT
OF A BAD NIGHT.
OR JUST HAPPENED TO
BE THE WRONG GUY.
BUT AS THE CRIMINAL LAW IS
FIXATED ON THESE ONE-TO-ONE
INTERACTIONS, AND THE THING
THEY CALL THE ACT ITSELF,
IT REALLY ISN'T SEEN AS
MUCH OF AN INJURY TO A WOMAN.
I THINK THIS UNDERLIES IN
PART THE STRENGTH OF THE
ATTACHMENT THAT THE LEGAL
SYSTEM HAS TO KEEPING RAPE LAW
CRIMINAL RATHER THAN CIVIL.
JUST AS ONE LEGAL
OUTCOME OF IT.
THAT IS, THE BIGGEST EFFECT,
OBVIOUSLY, IS NOTHING IS
DONE ABOUT RAPE, RIGHT?
BUT IT'S ALSO PARTLY, I
THINK, REFLECTED IN THE
RESISTANCE TO RECOGNIZING THAT
WHEN RAPE HAPPENS A WOMAN IS
INJURED, AND THEREFORE
SHE SHOULD HAVE A REMEDY.
THE IDEA THAT IT'S A CRIME
HAS BUILT INTO IT THE
NOTION THAT WHEN RAPE
HAPPENS THE COMMUNITY'S
RULES WERE BROKEN.
WELL, I'M HERE TO SAY
A WOMAN WAS BROKEN.
AND THE IDEA THAT THE
COMMUNITY'S RULES ARE THIS
OTHER THING COMES FROM THE
ORIGINAL COMMON-LAW BACKDROP
IN WHICH RAPE WAS REGARDED
AS A PROPERTY CRIME
COMMITTED BY, ESSENTIALLY,
BY A MAN AGAINST ANOTHER
MAN'S PROPERTY.
AND IT WAS EITHER THE WOMAN
WHO WAS THE DAUGHTER WHO
WAS THE PROPERTY OF HER
FATHER, OR IT WAS A WOMAN
WHO WAS MARRIED, AND SHE WAS
THE PROPERTY OF HER HUSBAND.
SO THERE'S A COMMUNITY RULE
AGAINST IT, SUPPOSEDLY.
BUT THERE IS NO IDEA IN
THERE THAT IT'S DONE TO A
PERSON, OR A MEMBER OF A
GROUP QUA GROUP MEMBERSHIP.
IN OTHER WORDS, IF IT WAS A
CIVIL INJURY, AS I'LL TALK
ABOUT IN A LITTLE BIT IT
SHOULD PERHAPS RECOGNIZE
THAT GROUP BASIS.
BUT THERE IS REAL RESISTANCE
TO GIVING WOMEN THE POWER
TO PROCEED OVER DECIDING
WHETHER TO GO FORWARD WITH
CLAIMS OF RAPE AND IT SEEMS
TO ME THAT THIS IS PART OF
THE BACKDROP FOR THAT.
NOW, A SECOND THING THAT I
NOTICE AS A MALE FORM OF
POWER IN THE LAW OF RAPE IS
WHAT I WOULD CALL THE POWER
TO DEFINE RATIONALITY.
THAT IS, THE POWER OF
RATIONALITY SUCH THAT WHAT
MAKES SENSE FROM
YOUR POINT OF VIEW?
THAT IS TO SAY, WHAT MAKES
FOR MAINTAINING ONE'S
POSITION OF POWER IS
CONSIDERED TO BE LOGIC.
WHAT I PARTICULARLY WOULD
POINT TO HERE IN THE LAW OF
RAPE IS ITS STACKED
STANDARDS OF WHAT A FAIR
TRIAL LOOKS LIKE.
IN PARTICULAR, THE STRUGGLE
OVER A WOMAN'S SEXUAL
HISTORY AND ADMITTING
IT INTO RAPE TRIALS.
IT'S SEEN TO BE ONLY
REASONABLE FROM THE
STANDPOINT OF MALE EXPERIENCE,
THAT IF A WOMAN HAS HAD SEX
WITH ONE MAN, SHE MIGHT
HAVE WANTED TO HAVE SEX
WITH ANOTHER ONE.
WELL, MEN MAY THINK THAT
THEY ARE FUNGIBLE, BUT
WOMEN KNOW THERE IS A
DIFFERENCE BETWEEN THEM.

[laughter]

Catharine continues AND THEREFORE, IT IS NOT
TO US LOGICAL, AS IT IS TO
THEM, THAT A WOMAN'S SEXUAL
HISTORY MAKES ANY SENSE IN
A RAPE TRIAL OF ONE PERSON.
BUT IT IS CONSIDERED JUST
RATIONAL, LIKE THE LAWS OF
GRAVITY, THAT FAIRNESS OF
TRIAL IS ENHANCED BY HAVING
A WOMAN'S SEXUAL HISTORY
SPREAD ALL OVER THE THING.
AND THAT INCLUDES, BY THE
WAY, HER PAST FORCED SEXUAL
HISTORY IN MANY
INSTANCES, AS WELL.
NOW, I'M NOT HERE TALKING
ABOUT THE PARTICULARS OF
CANADA'S STRUGGLE, A
PRODUCTIVE ONE, WITH THIS
ISSUE, BUT JUST THE ENTIRE
IDEA THAT ONE HAS TO FIGHT
AGAINST WHAT IS REGARDED AS
THE RATIONALITY, IT'S JUST
RATIONAL TO DO THIS.
AND I'M SAYING THE POWER TO
DEFINE WHAT'S RATIONAL IS A
FORM OF POWER THAT
TAKES A MALE FORM.
IT COMES FROM
THEIR EXPERIENCE.
THEY ARTICULATE IT, THEY
EMBODY IT IN INSTITUTIONS,
THEY PUT IT OUT THERE IN THE
RULES, THEN WE'RE THE ONES
THAT ARE CALLED IRRATIONAL
WHEN IT DOESN'T CORRELATE
WITH OUR EXPERIENCE
AND MAKES NO SENSE.
OKAY.
NOW, THE THIRD THING THAT I
NOTICE IN THE LAW OF RAPE IS
WHAT I CALL, FOR LACK OF
A BETTER TERM, MAYBE YOU'LL
HELP ME COME UP WITH A BETTER
ONE, THE POWER OF COUNTING.
AND BY THIS I MEAN
OF HAVING WEIGHT.
OF HAVING A VOICE, OF
HAVING A VOTE, OF PRESENCE.
AND I PARTICULARLY SEE THAT
WOMEN DON'T COUNT WHEN I
NOTICE HOW MANY WOMEN IT
TAKES TO HAVE TO ACCUSE A
MAN OF A SEXUAL VIOLATION
BEFORE IT'S TAKEN SERIOUSLY.
HOW MANY OF US HAVE TO WEIGH
IN BEFORE WE WEIGH ANYTHING?!
IT'S HAVING NO VOICE.
IT'S HOW, YOU KNOW, HOW LOUD
DO YOU HAVE TO SPEAK BEFORE
ANYONE LISTENS?
HOW BIG A SCENE DO YOU HAVE
TO MAKE FOR WHICH YOU ARE
THEN CALLED NUTTY, BEFORE
YOUR PRESENCE IS REGARDED AS
BEING PRESENT?
RIGHT?
AND THE WAY THIS WORKS IN
THE LAW OF RAPE IS, FIRST
OF ALL, IT TAKES A LOT OF
WOMEN TO GET ACROSS THE
POINT THAT MAYBE THIS MAN
DID IT TO ONE OF THEM.
THERE AGAIN, THE ASSUMPTION
OF FUNGIBILITY, IN THIS
CASE OF THE WOMEN.
IF HE DID IT TO ONE, MAYBE
HE DID IT TO THE OTHER ONE.
INTERESTING THAT THE
ASSUMPTION MEN ARE NOT
SELECTIVE, RIGHT?
HOWEVER, WHAT WE THEN HAVE
IS A LEGAL REGIME THAT
SEEKS TO KEEP ALL THESE
OTHER WOMEN OUT OF TRIAL AS
PRESENTING INADMISSIBLE
EVIDENCE, UNLESS WHAT HE
DID TO THIS WOMAN IS SO
WEIRD, AND SO FAR OUT AND
SO DIRECTLY AND PRECISELY,
AND TO THE ABSOLUTE LETTER
REPLICATED WITH EACH ONE
OF THEM, THAT YOU CAN
SOMETIMES GET IT IN THESE
VERY NARROW EXCEPTIONS TO
THIS PRECLUSION ON TALKING
ABOUT OTHER CRIMES.
BECAUSE OF COURSE, IT
WOULDN'T BE RIGHT, WOULD IT,
TO SUGGEST THAT THE GUY'S A
BAD GUY, AND THEREFORE HE
MIGHT HAVE, IF HE DID THIS
BAD THING TO THIS WOMAN,
AND THIS BAD THING TO THIS
WOMAN, HE MIGHT HAVE DONE
THE VERY SAME BAD THING
TO THIS WOMAN HERE WHO IS
ACCUSING HIM OF A RAPE.
WE CAN'T HAVE THAT BECAUSE
THESE ARE ALL ABOUT
INDIVIDUAL INTERACTIONS,
SEE, ONE AT A TIME, SEE,
AND THEY HAVE NOTHING TO DO
WITH GROUPS, SEE, HOWEVER
IT TAKES A GREAT MANY OF
THEM FOR ANYONE TO BELIEVE
THAT IT HAPPENS, BUT THAT'S
WHY WE'VE GOT TO MAKE SURE
THAT NO MORE THAN ONE CAN
EVER BE ADMITTED INTO THIS
GUY'S TRIAL.
NOW, THAT MEANS WE DON'T
COUNT, IS WHAT I'M SAYING.
NOW THE FOURTH THING I NOTICE
ABOUT THE LAW OF RAPE IS
THIS THING I CALL THE
POWER OF CREDIBILITY.
AND HOW YOU KNOW THAT MEN HAVE
CREDIBILITY IS THAT THEY DON'T
HAVE TO MAKE SENSE
TO BE BELIEVED.

[laughter]

Catharine continues IT MEANS THEY CAN STAND
UP AND SAY UTTERLY
INCONSISTENT THINGS, AND
PEOPLE WILL NOD GRAVELY.
IT MEANS IT'S SOMETHING
YOU JUST CARRY WITH YOU
BY VIRTUE OF YOUR SEX.
AND, AGAIN, IT
ISN'T UNIFORM.
THE MORE STATUS YOU HAVE
AMONG MEN, THE MORE
CREDIBILITY YOU HAVE, IE,
THE MORE MALE YOU ARE
IN THIS SENSE.
THE MORE MALE
POWER YOU BRING.
THE WAY IT WORKS WITH WOMEN,
AND HOW IT IS WE'RE NOT
CREDIBLE IN THE RAPE LAW IN
PARTICULAR CAN BE SEEN IN
THE ANCIENT ASSUMPTION
THAT, EMBODIED IN AN
INSTRUCTION, THAT
ALLEGATIONS OF RAPE WERE
UNIQUELY LIKELY
TO BE FABRICATED.
THAT IS YOU CAN'T EVEN USE
YOUR REGULAR NORMAL, YOU AS
A JURY, PROCESSES OF
PERCEPTION AND DETECTION
FROM LIFE EXPERIENCE THAT
SOMEBODY MIGHT BE TRYING TO
PULL ONE OVER ON YOU WITH
THIS WOMAN WHO IS ACCUSING
THIS MAN OF RAPE, WHICH IS
WHAT A JURY IS SUPPOSED TO
DO, BY THE WAY, USE THEIR
NORMAL, ORDINARY, LIFE
PROCESSES THAT THEY'VE
LEARNED THROUGH LIFE TO
DETECT WHETHER SOMEBODY'S
TELLING THE TRUTH OR NOT,
THERE NEEDED TO BE A
SPECIFIC INSTRUCTION TO THE
JURY THAT RAPE ALLEGATIONS
WERE UNIQUELY LIKELY TO BE
MADE UP.
NOW, WE GOT RID OF THAT.
AND WHAT WE HAVE NOW ARE
THESE THINGS BELOW THE
EXPLICIT LEVEL WALKING
AROUND AND TROMPING IN
THROUGH OUR JURIES AND
AFFECTING OUR TRIALS, AND
WE'RE LIVING AMONG THESE
THINGS CALLED RAPE MYTHS,
WHICH ARE NOTHING BUT
THAT SAME ATTITUDE ON THE
ATTITUDINAL LEVEL, THAT IS
TO SAY THE VIEW THAT WOMEN
INVENT RAPE, MAKE UP RAPE,
LOVE TO BE RAPED, DRESS FOR
RAPE, LIVE TO BE RAPED, GO
TO WORK TO BE RAPED, WALK
DOWN THE STREET ASKING TO
BE RAPED, ARE NOT HURT BY
RAPE, SAY WE'RE RAPED
WHEN WE'RE NOT, REASONS
UNDISCLOSED FOR THIS ONE,
BUT USUALLY IT'S CALLED
"TO GET ATTENTION," IN ORDER TO
BE SMEARED IN THE PRESS, TO
LOSE THEIR JOBS, AND SO ON,
TO BE REGARDED AS TAINTED
BY THEIR FAMILIES
AND SO ON.
ANYWAY, THESE RAPE MYTHS ARE
THINGS THAT GIVE WOMEN NO
CREDIBILITY WHEN THEY
SAY THEY WERE RAPED.
AND ACTUALLY ARE WELL
DOCUMENTED TO DO THAT.
THE RAPE MYTH RESEARCH IS
AMONG THE BEST SOCIAL SCIENCE
OUT THERE IN TERMS OF ITS
REGULARITIES AND REPLICABILITY.
IT'S ALSO BEEN DONE
CROSS CULTURALLY.
SO WHAT YOU HAVE IS JUST
THAT WHEN WOMEN SAY THEY
WERE RAPED, THEY DON'T HAVE
THE POWER OF CREDIBILITY.
AND WHEN A MAN SAYS HE
DIDN'T DO IT, PARTICULARLY
IF HE'S WHITE, AND
I'M SPEAKING THERE
ESPECIALLY IN THE U.S. CONTEXT,
HE'S MORE LIKELY TO BE
BELIEVED BECAUSE
THAT'S CREDIBLE.
BECAUSE HE'S A MAN.
I'M JUST SAYING THIS
IS ENTIRELY CIRCULAR.
I'M JUST TRYING
TO DESCRIBE IT.
NOW, THE FINAL THING THAT
I NOTICE AND WANT TO TALK
ABOUT WITH REGARD TO THE
LAW OF RAPE, AS A FORM THAT
MALE POWER TAKES IS WHAT I
CALL THE POWER OF REALITY.
AND THAT IS THE POWER TO
HAVE YOUR EXPERIENCE AND
PERCEPTIONS STRUCTURE
THE RULES BY WHICH YOU
THEN ARE MEASURED.
AND IN THIS ONE, I THINK A
PARTICULARLY GOOD EXAMPLE IS
THIS LEGAL DOCTRINE WHICH
CANADA STILL USES, NUMBER OF
STATES IN THE UNITED STATES
USES, ENGLAND USES, CALLED
MISTAKEN BELIEF IN CONSENT.
THE WAY IT WORKS IS THIS.
WHATEVER ITS REALITY, IF A
WOMAN CONSENTS TO SEX THAT IS
NOT A RAPE.
HOWEVER, IF A WOMAN DOESN'T
CONSENT TO SEX, AND A MAN,
HAVING SEX WITH HER THINKS
SHE DOES, IN OTHER WORDS,
TO HIM, THE REALITY IS SHE
IS CONSENTING, HE'S WRONG,
ALL RIGHT, BUT TO HIM
THE REALITY IS SHE IS
CONSENTING, THAT
ISN'T A RAPE.
NOW, THIS IS CALLED
MISTAKEN BELIEF IN CONSENT.
IT IS A DEFENCE
TO A RAPE CHARGE.
IT MEANS TO SAY IT ONE MORE
TIME, IF A MAN BELIEVES A
WOMAN CONSENTED TO HAVE SEX
WITH HIM, EVEN IF SHE DID
NOT, AND THEN THERE'S SOME
DISCUSSION ABOUT IN SOME
PLACES ABOUT WHETHER HIS
BELIEF HAS TO BE REASONABLE
OR NOT.
IN SOME PLACES, HIS BELIEF
HAS TO BE REASONABLE.
IN OTHER PLACES IT DOESN'T
BECAUSE HE DIDN'T HAVE THE
PROPER MENTAL STATE YOU'RE
LOOKING FOR IN A RAPIST, HE
COULDN'T HAVE BECAUSE HIS
OWN SINCERE MENTAL STATE
WAS SUCH THAT HE THOUGHT
SHE WAS CONSENTING.
IT DOESN'T MATTER IF IT
WAS REASONABLE OR NOT.
HE DIDN'T HAVE THE RIGHT
MENTAL STATE TO BE A RAPIST
BECAUSE HE DIDN'T KNOW
HE WAS RAPING HER.
HE WAS, BUT HE DIDN'T KNOW
HE WAS, THEREFORE HE WASN'T.
ALL RIGHT?
NOW, THERE ARE PEOPLE WHO
KNOW I AM MERELY DESCRIBING
IT IN THIS ROOM RATHER THAN
CARICATURING IT, BUT TO
DESCRIBE IT SOUNDS
LIKE A CARICATURE.
HOWEVER, THIS IS WHAT I MEAN
BY THE POWER OF REALITY.
HIS
REALITY BECOMES
THE LEGAL REALITY.
WHAT WAS TO HIM REAL
BECOMES THE REALITY OF
WHAT HAPPENED TO HER.
IT DOESN'T MATTER
WHAT HAPPENED TO HER.
HE HAS THE
POWER OF REALITY.
AND THE RULES ARE DESIGNED
TO MAKE WHAT IS HIS REALITY
DEFINE HERS IN
COURT, IN LAW.
NOW, I THINK THIS IS A LOT
OF POWER, THESE THINGS.
AND I THINK IT GOES FAR TO
EXPLAIN WHY THE RAPE LAW
DOESN'T WORK.
WHICH, AS I
SAY, IT DOESN'T.
ALL THIS RESULTS IN
UNACCOUNTABILITY.
WHICH IS PERHAPS THE
ULTIMATE POWER OF ALL,
WHICH IS THE POWER NEVER
TO HAVE TO ANSWER TO THE
PEOPLE YOU VIOLATE.
THE POWER TO JUST GO RIGHT
AHEAD AND KEEP DOING IT.
THERE ARE A FEW POSITIVE
DEVELOPMENTS IN THIS AREA,
AND I'VE MENTIONED
A COUPLE OF THEM.
AS I WENT ALONG I MENTIONED
A COUPLE OF THINGS THAT
HAVE CHANGED.
I'D LIKE TO SAY A COUPLE
OF THINGS I THINK ARE
PARTICULARLY IMPORTANT
THAT COULD CHANGE IT.
AND THERE MAY BE OTHERS, AND
WE CAN TALK ABOUT THEM AND
THINK ABOUT THEM TOGETHER.
ONE, OF COURSE, AS HAD TO
DO WITH THE DEVELOPMENTS IN
THE AREA OF SEXUAL HISTORY.
HOWEVER, WE STILL DON'T
GET TO GET ALL THOSE OTHER
WOMEN, FOR THE MOST PART,
THAT WERE SEXUALLY ASSAULTED.
ALTHOUGH THERE ARE
INNOVATIVE PROSECUTORS WHO
FIGURE OUT WAYS,
TRY
TO
FIGURE OUT WAYS TO GET THAT
OTHER EVIDENCE IN.
BUT THERE ARE TWO PARTICULAR
THINGS I'D LIKE TO CALL
YOUR ATTENTION TO THAT I
THINK ARE AMONG THE MOST
PROMISING I'VE SEEN,
DEVELOPMENTS IN THIS AREA
AND ARE THINGS THAT COULD
BREAK MALE POWER AS
INSTITUTIONALIZED
IN RAPE LAW.
ONE OF THEM IS THE AMERICAN
VIOLENCE AGAINST WOMEN ACT.
IT WAS PASSED IN 1992, AND
RECOGNIZES THAT SEXUAL
VIOLENCE IS SOMETHING THAT
HAPPENS ON THE BASIS OF SEX.
THAT IS, IT BRINGS THE
GROUP-BASED RECOGNITION INTO
THE PURSUIT OF A RAPE
CHARGE, AND IT IS CIVIL,
NOT CRIMINAL.
OR RATHER, IT
WAS.
THE SUPREME COURT OF THE
UNITED STATES FOUND IT
TO BE UNCONSTITUTIONAL.
THIS IS WHAT I MEAN ABOUT
HOW MALE POWER WORKS.
IT WILL NOT ALLOW, TO THE
EXTENT IT CAN, ACTIONS THAT
INTERFERE WITH ITS POWER,
WITH ITS STRUCTURES OF POWER.
SUBSTANTIVELY, IT WON'T.
IT WILL CALL THEM ALL
KINDS OF ABSTRACTIONS.
IN THE CASE OF THE VIOLENCE
AGAINST WOMEN ACT, THEY
CALLED THOSE ABSTRACTIONS
FEDERALISM, WHICH MEANS
SOMETHING SLIGHTLY DIFFERENT
IN THE UNITED STATES THAN HERE,
BUT IT'S STILL FEDERALISM,
WHICH IS A BIG ABSTRACTION.
AND ALSO, THEY SAID THAT IT
WASN'T CONSTITUTIONAL FOR
FEDERAL CONGRESSIONAL
LEGISLATION BECAUSE IT
WASN'T PART OF
INTERSTATE COMMERCE.
NOW, ACTUALLY, WE AMAZINGLY
SHOWED THAT VIOLENCE
AGAINST WOMEN COSTS A LOT.
THAT IT'S EXPENSIVE TO
WOMEN AND TO THE ECONOMY.
MAGICALLY, OUR LABOUR
SUDDENLY HAD VALUE WHEN
ATTEMPTING TO EXPLAIN THAT
WOMEN WHO ARE CONSTANTLY
BEING BEATEN AND ABOUT TO
BE RAPED CAN'T BE PRODUCERS.
HOWEVER, IT WASN'T ENOUGH
FOR THE SUPREME COURT OF
THE UNITED STATES TO HAVE
VIOLENCE AGAINST WOMEN BE
RECOGNIZED AS PART OF
INTERSTATE COMMERCE, THAT
RATHER LARGE ABSTRACTION.
BUT SUBSTANTIVELY, WHAT I'M
HERE SUGGESTING IS THAT
VIOLENCE AGAINST WOMEN IS
A FORM OF THE EXERCISE OF
MALE POWER OVER WOMEN, AND
THEREFORE, LEGISLATION THAT
DECISIVELY STRIKES AT IT,
CHALLENGES IT, UNDERMINES IT,
GOES DIRECTLY AT IT, IS
LIKELY TO BE EXPERIENCED AS
THREATENING TO SOMETHING
INDEFINABLE, PERHAPS NOT
CONSCIOUSLY, AND WAYS WILL
BE FOUND TO MAKE SURE THAT
IT ISN'T ABLE TO BE USED.
WELL, THAT HAPPENED.
BUT WHAT IT DID WAS
RECOGNIZE REALITY AS WOMEN
EXPERIENCE IT IN THE
AREA OF SEXUAL VIOLENCE.
AND ACTUALLY, THE LAW OF
SEXUAL HARASSMENT GOES A
LONG WAY TO DOING THAT, AS
WELL, AND HAS YET TO BE
INVALIDATED.
THE SECOND DEVELOPMENT THAT
I'D LIKE TO CALL TO YOUR
ATTENTION IS A RULING BY
THE RWANDA TRIBUNAL, THE
INTERNATIONAL TRIBUNAL FOR
THE PROSECUTION OF CRIMES,
INTERNATIONAL
CRIMES IN RWANDA.
A CASE CALLED AKAYESU.
AND WHAT THAT CASE FOUND,
WHAT IT DID WAS ACTUALLY
DEFINE THE CRIME OF RAPE
FOR THE FIRST TIME UNDER
INTERNATIONAL LAW.
RAPE HAS LONG BEEN A CRIME
UNDER INTERNATIONAL LAW,
BUT IT HAS NEVER
BEEN DEFINED.
AND WHAT AKAYESU DID, IN
A CONTEXT OF GENOCIDE IN
PARTICULAR, WAS DEFINE
RAPE AS AN ACT OF A SEXUAL
NATURE COMMITTED UNDER
COERCIVE CONDITIONS.
THINK ABOUT IT.
YOU KNOW, IF, IS GENDER
INEQUALITY A COERCIVE CONDITION?
I MEAN, THEY DON'T HAVE TO
ANSWER THAT QUESTION IN THE
INTERNATIONAL TRIBUNAL
BECAUSE THE STATUTE IS
LIMITED TO SERIOUS BREACHES
OF INTERNATIONAL LAW, SO IT
WILL BE UNDER CONDITIONS OF
WAR, AND UNDER CONDITIONS
OF GENOCIDE, SUCH AS TOOK
PLACE IN RWANDA, AND ALSO
IN BOSNIA AND HERZEGOVINA,
AND CROATIA AND KOSOVO.
BUT IN THIS PARTICULAR CASE,
IN THIS RECOGNITION, IT
SEEMS TO ME DOES A MAJOR
MOVE IN PUTTING THE ONUS OF
THE COERCION, THE LOCATION
OF THE COERCION, BOTH
WITHIN THE RAPE, BUT OUTSIDE
THE ONE-ON-ONE PARTIES.
IN OTHER WORDS, IT
UNDERSTANDS THERE IS SUCH
A THING AS COERCIVE
CONDITIONS, UNDER WHICH AN
ACT OF A SEXUAL NATURE
TAKES PLACE COULD BE A RAPE.
SO THOSE ARE JUST
TWO SUGGESTIONS.
AKAYESU IS
CURRENTLY ON APPEAL.
WE'LL SEE WHAT HAPPENS TO
ITS DEFINITION OF RAPE.
THERE ARE OTHER COMPETING
ONES IN THE APPELLATE
CHAMBER TO WHICH IT'S
APPEALED THAT DO NOTHING OF
THE KIND, I MEAN, JUST MORE
OR LESS REPRODUCE ALL THESE
OTHER PROBLEMS.
WHAT I'VE BEEN TRYING TO
SKETCH WITH YOU IS HOW LAW,
ONE PARTICULAR AREA OF LAW,
BUILDS SEX INEQUALITY IN.
I ACTUALLY THINK ONE COULD
TAKE THESE SAME DIMENSIONS
THAT I PULLED OUT, LOOK AT
THE WAY OTHER AREAS OF LAW
DEFINE RATIONALITY, TREAT
CREDIBILITY, DEFINE REALITY,
AND ASK SUBSTANTIVE SOCIAL
QUESTIONS ABOUT THEM, ABOUT
PRIVILEGE AND DOMINANCE, AND
COME UP WITH A SUBSTANTIVE
ANALYSIS OF THE WAY CLASS
IS BUILT IN TO AREAS OF LAW
THAT ARE ATTEMPTING TO
ADDRESS THOSE ISSUES.
ABOUT THE WAY RACISM IS
BUILT IN TO AREAS OF LAW
THAT PURPORT TO
ADDRESS THOSE AREAS.
AND IT SEEMS TO ME THAT
PRIOR TO ALL LEGAL REFORM
EFFORTS SOMEHOW, ARE
THESE VERY LARGE SYSTEMIC
REGULARITIES THAT ARE
DISCRIMINATORY, THAT ARE
SYSTEMIC, AND THAT ARE BUILT
INTO LAW QUA LAW, THAT LOOK
ABSOLUTELY ABSTRACT, AND THAT
ARE ANYTHING BUT, IN FACT.
ARE ENTIRELY BIASED
AND SUBSTANTIVE.
AND I THINK WE NEED TO FACE
UP TO THE NATURE OF THESE
DIMENSIONS IN ORDER TO SEEK
THE KIND OF SOCIAL AND
POLITICAL JUSTICE THAT WE'RE
TRYING TO ACHIEVE WHEN WE
CHANGE LAW.
SO THANKS.

[applause]

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Watch: Catharine Mackinnon on Power and Rape Laws