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

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

[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 black blouse.

[applause]

Catharine says WE TALKED LAST NIGHT ABOUT
THE CONTEXT OF GENDER
INEQUALITY BETWEEN WOMEN
AND MEN AS CREATING
POWER IN MEN AND LESS
POWER IN WOMEN.
WHAT I WANT TO TALK
ABOUT THIS AFTERNOON
IS THE CONCEPT OF CONSENT WHICH
OCCUPIES A CENTRAL PLACE
IN WESTERN LIBERAL DEMOCRATIC
THEORY AND OPERATES
TO LEGITIMATE MANY THINGS THAT
WOULD OTHERWISE BE SEEN AS
TYRANNICAL AND TO REDUCE OR
QUALIFY OR EVEN ELIMINATE
WHAT WOULD BE SEEN AS FORMS
OR PRACTICES OF DOMINATION;
THAT IS, IF SOMEONE
CONSENTS TO SOMETHING,
THE IDEA SEEMS TO BE THAT
EVEN THOUGH THAT WOULD
OTHERWISE BE SAY SLAVERY,
IT ISN'T ANYMORE.
WHAT I WANT TO TALK ABOUT
IS WHAT THE CONCEPT OF CONSENT
MEANS WHEN APPLIED
BETWEEN THE SEXES
IN THE CONTEXT OF THE
LARGER DISCUSSION
OF GENDER INEQUALITY AS
DISCUSSED LAST NIGHT.
I SPECIFICALLY WANT TO ASK
THE MORE FOCUSED QUESTION
IN TWO DIFFERENT AREAS.
THE QUESTION, DO WOMEN
CONSENT TO SEX INEQUALITY?
OR ON THE OTHER - TO
REVERSE THAT QUESTION,
DOES SEX INEQUALITY OPERATE
TO UNDERMINE OR VITIATE
THE MEANINGLESSNESS OF
WHAT IS CALLED CONSENT
IN A VARIETY OF AREAS.
NOW CONSENT IS A TERM
THAT'S GENERALLY USED AS
A SYNONYM IN NORMAL EVERYDAY
PARLANCE FOR FREEDOM,
OR FOR FREE CHOICE,
OR FOR UNBURDENED
SELECTION BETWEEN OPTIONS.
THE IDEA IS THAT IF
SOMEBODY IS COERCED
INTO ONE CHOICE OR ANOTHER,
THAT THAT ISN'T REALLY
WHAT CONSENT IS
SUPPOSED TO MEAN.
WHAT IS ALSO, I
THINK, THE CASE,
IS THAT IN SEXUAL ACTIVITY
OR IN DISCUSSIONS
OF SEXUAL ACTIVITY, THE
WORD CONSENT IN NORMAL,
EVERYDAY DISCUSSION TENDS
TO FUNCTION - YOU KNOW,
IF YOU ASK YOURSELF, WHAT
DO PEOPLE MEAN BY THE WORD
CONSENT WHEN THEY USE
IT IN A SEXUAL CONTEXT,
IT TENDS TO FUNCTION
AS A STAND-IN,
NOT ONLY FOR FREEDOM,
THAT IS SEXUAL FREEDOM,
BUT ACTUALLY FOR
MUTUALITY OF DESIRE.
AND IN FACT AS A SYNONYM
FOR WHAT PEOPLE WANT.
WHAT I FIND IS THAT IF YOU
MEASURE THE ACTUAL USE
OF THE WORD CONSENT AS
APPLIED IN REAL SITUATIONS
OF ALLEGED SEXUAL ABUSE, OR
INEQUALITY AS IMPOSED BY
ONE PERSON ON ANOTHER, WHAT
YOU TEND TO FIND IS THAT
INEQUALITY ON THE BASIS
OF SEX AS WE DISCUSSED
IT LAST NIGHT IS IGNORED SO
THAT THE WORD CONSENT
CAN FUNCTION AS A STAND-IN
FOR FREEDOM,
AND OPERATES TO MAKE
IT APPEAR THAT WHAT'S
HAPPENING IS MUTUALITY OF
DESIRE WHEN IN FACT
THE SEXUAL ACTIVITY UNDER
DISCUSSION IS OFTEN
ANYTHING BUT WHAT THE WOMAN
INVOLVED ACTUALLY WANTS.
IN OTHER WORDS, THE WORD
CONSENT IS USED AS A PROXY
FOR FREEDOM, DESIRE, AND
MUTUALITY IN SETTINGS
WHERE THAT ISN'T ACTUALLY
WHAT IS HAPPENING.
THERE'S ACTUALLY - JUST
SORT OF ORDINARY LANGUAGE
CORRELATE TO ALL THIS -
THERE'S A STRANGE PARADOX
OR DISJUNCTION IN THE
WAY PEOPLE TALK ABOUT
THE WORD CONSENT IN
THE SEXUAL SETTING,
OR THE WAY THEY JUST
USE THE WORD CONSENT.
FIRST OF ALL, IT'S AS IF
CONSENT ISN'T A WORD THAT
YOU HAVE TO SAY WHAT IT
MEANS WHEN YOU'RE USING IT.
YOU CAN JUST USE IT.
AND WHEN THEY SPEAK OF SEX,
WHAT TENDS TO HAPPEN IS,
FOR INSTANCE, IF SOMEONE
IS TALKING ABOUT
A SEXUAL INTERACTION THAT
THEY HAD RECENTLY,
OR SEX THAT THEY HAD THAT
THEY WANTED TO HAVE
WITH SOMEONE, THEY DON'T SAY,
OH, IT WAS SO TERRIFIC,
YOU KNOW, I HAD
SEX LAST NIGHT.
IT WAS REALLY GREAT, AND
THEN FOLLOW IT UP WITH,
I CONSENTED.
I MEAN, THAT'S LIKE -
THAT'S A BUMMER AT THE END
OF IT BY COMPARISON, RIGHT?
OR IF A YOUNG MAN, SAY, IS
TALKING ABOUT SEX HE HAD
WITH A YOUNG WOMAN THAT
HE'D BEEN WANTING TO HAVE
SEX WITH FOR SOME LONG
PERIOD OF TIME, IT'S LIKE,
OH, SWELL, WE HAD
THIS WONDERFUL
SEXUAL INTERACTION.
IT WAS JUST SO TERRIFIC.
SHE WAS MARVELOUS,
SHE CONSENTED.
I MEAN, IT JUST DOESN'T
GO WITH IT, RIGHT?
HOWEVER WHEN PEOPLE TALK
ABOUT ALLEGATIONS OF
SEXUAL ABUSE, THAT IS SAY
YOU OR THE YOUNG WOMAN
IN THE FOREGOING STORIES WOULD
SAY THAT THEY WERE ASSAULTED
UNDER THOSE CIRCUMSTANCES,
PEOPLE DON'T - THE OTHER
SIDE DOESN'T RESPOND
TYPICALLY BY SAYING,
OUTRIGHT, SHE HAD
A TERRIFIC TIME.
SHE LOVED IT.
SHE WANTED IT, ALTHOUGH
SOMETIMES THEY DO SAY THAT.
BUT WHAT THEY ALWAYS
SAY IS, IT ISN'T TRUE,
SHE WASN'T ASSAULTED.
SHE CONSENTED.

A caption appears on screen. It reads "Catharine Mackinnon. 'Politics and law: Consent.' University of Michigan."

Catharine continues THEY TALK ABOUT THEN WHEN
YOU HAVE AN ALLEGATION
OF SEXUAL ABUSE, THEY USE
CONSENT AS THE WORD THAT
IS ADEQUATE TO WHAT PEOPLE
WANT FROM A SEXUAL INTERACTION,
ALTHOUGH WHEN THEY'RE TALKING
ABOUT SEXUAL INTERACTIONS
THAT PEOPLE HAD
THAT THEY WANTED,
THEY NEVER
USE THE WORD CONSENT.
THEY USE OTHER WORDS.
SO IN AN ALLEGATION
OF SEXUAL ASSAULT,
IT'S USED AS IF IT'S
EQUIVALENT TO MUTUALITY,
RECIPROCITY, AND INTIMACY.
BUT WHEN YOU ACTUALLY HAVE
MUTUALITY, RECIPROCITY,
AND INTIMACY, CONSENT IS
NOT THE WORD PEOPLE USE.
NOW IN BETWEEN THE GAP,
BETWEEN THOSE TWO THINGS,
FALLS THE SHADOW, RIGHT,
OTHERWISE CALLED THE LAW.
SO THAT'S WHAT I'M GOING
TO BE TALKING ABOUT TODAY,
WHAT HAPPENS IN
BETWEEN THE GAP BETWEEN
THOSE TWO VERY DIFFERENT
USES OF THE WORD CONSENT.
AND I WANT TO EXPLORE THE
MEANINGS THAT IT HAS AND
MEASURE IT IN THE CONTEXT
OF WOMEN'S EXPERIENCE OF
INEQUALITY, AS I'VE SAID,
AND KEEP IN MIND WHAT A SEX
EQUALITY STANDARD FOR A
CONCEPT LIKE CONSENT
MIGHT MEAN OR
MIGHT LOOK LIKE.
ONE SORT OF STANDARD
MEANING OF THE TERM CONSENT
THAT I JUST WANT TO MENTION
AT THE OUTSET AND SORT OF
PUT IT OUT THERE WHICH IS
NOT USED EXPRESSLY
IN THE LAW, BUT IS PART OF
THE THEORETICAL BACKDROP
OF WESTERN - IN WESTERN
DEMOCRATIC AND LIBERAL
THOUGHT - IS THE BASIC
CONTRACTARIAN MEANING OF IT
IN POLITICAL THEORY.
I HAVE PARTICULARLY IN MIND
JOHN LOCKE AND WHAT IT IS,
HAS TO DO WITH
CONSENT TO THE STATE,
AND HOW YOU KNOW THAT
PEOPLE ARE CONSENTING TO
A STATE THERE AND THIS ALSO
CHARACTERIZES HOBBES
TO SOME EXTENT IS,
THAT YOU DON'T LEAVE.
NOW I THINK, YOU KNOW, THIS
MEANING ALSO EMERGES
IN SITUATIONS OF
SEXUAL ASSAULT.
IT CERTAINLY EMERGES IN THE
STANDARDS BY WHICH PEOPLE
TACITLY MEASURE WHETHER
A BATTERED WOMAN
WAS BATTERED OR NOT.
IT COMES UP IN THE "WHY
DOESN'T SHE LEAVE?" QUESTION
ABOUT BATTERING WHICH IN
THIS CONTEXT CAN BE SEEN
TO CARRY WITH IT THE
IMPLICATION THAT SHE MUST
HAVE CONSENTED TO
BEING BATTERED
OR SHE WOULD HAVE LEFT.
AND I THINK IMPLICIT IN IT
ALSO IS SOMETHING LIKE
A NOTION THAT MAYBE
SHE LIKES IT.
THAT'S WHY SHE
DOESN'T LEAVE.
BUT IT'S A USE THAT
OPERATES ONLY TACITLY,
I THINK, IN EXPRESSLY
LEGAL SETTINGS,
AND MOSTLY PEOPLE DON'T
ASK THE QUESTION ANYMORE,
"IS THE STATE LEGITIMATE?"
SO THEREFORE THEY'RE NOT
TRYING TO COME UP WITH,
"IF IT WASN'T, HOW
WOULD WE KNOW?"
AND THE ANSWER WOULD
BE THAT PEOPLE LEFT.
WHETHER IT'S REALLY
REALISTIC AS A STANDARD
FOR CONSENT - I MEAN, WHETHER
LEAVING IS A REALISTIC
STANDARD FOR CONSENT IS
JUST SOMETHING
I WOULD LIKE TO RAISE
A QUESTION ABOUT;
THAT IS, WOMEN FOR, EXAMPLE,
HAD NO VOICE IN SETTING UP
THE INSTITUTIONS OF THE
STATE UNDER WHICH WE LIVE.
IT DOESN'T NECESSARILY TO
ME SUBSTANTIATE A VALID
MEANING OF THE WORD CONSENT
THAT WE DON'T LEAVE.
THAT WE HAD NO VOICE IN IT
DOESN'T - AND IT MAY MEAN
WE DON'T CONSENT TO IT.
I DON'T RECALL EVER HAVING
CONSENTED TO THE STATE.
BUT SOMEHOW IT'S TACITLY
THOUGHT TO BE SOMETHING
THAT WOMEN ALL CONSENT TO
JUST BECAUSE WE'RE STILL HERE.
NOW WHERE WE'RE
SUPPOSED TO GO,
HOW WE'RE SUPPOSED
TO GET THERE,
WHERE MIGHT BE A PLACE THAT
WOULD CARE IF WE DISSENTED
FROM THE EXISTENCE
OF THE STATE,
OR WOULD EVEN NOTICE
OR LISTEN ARE JUST
SORT OF LEFT
OUT OF THIS.
IT'S ALL KIND OF...
IT'S VERY FOGGY,
THIS CONSENT IDEA.
YOU KNOW IT DOESN'T SEEM
TO TAKE PLACE AT
A SINGLE POINT IN TIME.
THERE ARE NO STANDARDS
FOR ITS VALIDITY.
PEOPLE WHO DON'T CONSENT,
HOW DO YOU KNOW?
HOW'S LIFE DIFFERENT FOR
THEM IF THEY'RE STILL
IN THAT SETTING EVEN THOUGH
THEY DISSENTED FROM IT?
I MEAN, NONE OF
THIS IS SPECIFIED.
PEOPLE SORT OF RUSH TO THE
JUDGMENT THAT THE STATE
MUST BE LEGITIMATE
BECAUSE WE ALL CONSENT
BECAUSE WE'RE
STILL AROUND.
IT'S A VERY PASSIVE, I
MUST SAY, STANDARD FOR IT.
MORE TO BE CONTINUED ON THE
SUBJECT OF THE PASSIVITY
OF THE STANDARD.
NOW I THINK AT LEAST IN
THIS ONE MEANING OF IT,
YOU MIGHT DEDUCE THAT I
HAVE SOME QUESTION ABOUT
WHETHER THE WORD CONSENT
IS EQUIVALENT TO FREEDOM.
IN OTHER WORDS, IS IT
OUR FREEDOM THAT WE ARE
EXERCISING THAT WE
DON'T LEAVE EVERY DAY,
WHEN IT IS INFERRED
FROM THAT FACT
THAT WE CONSENT
TO THE STATE?
I MEAN, I DON'T KNOW THAT
IT'S WHAT FREEDOM LOOKS
LIKE JUST - I THINK
IT ISN'T ACTUALLY,
JUST THAT WE
HAVEN'T LEFT.
NOW HERE ARE SOME OTHER
DEFINITIONS OF CONSENT AND
I JUST WANT TO PUT THEM
OUT THERE BECAUSE THEY
ARE RATHER SCARCE AND
CANADA'S SEXUAL ASSAULT LAW
IS ACTUALLY QUITE - IS
SPECIAL IN HAVING ONE.
MOST SEXUAL ASSAULT LAWS
DON'T DEFINE CONSENT AT ALL.
THEY JUST SORT OF SAY -
THEY LEAVE IT TO
THE CASE-BY-CASE PROCESS,
TO THE COMMON LAW.
BLACK'S DICTIONARY IS
A STANDARD REFERENCE
FOR DEFINITION OF
TERMS IN THE LAW,
AND IT HAS QUITE A LONG
AND ELABORATE SET
OF POSSIBLE MEANINGS
OF THE TERM CONSENT.
AND I JUST WANT TO BEGIN
BY TALKING ABOUT THEM
A LITTLE BIT.
IT BEGINS RIGHT AT THE TOP
BY DEFINING CONSENT
AS "CONCURRENCE OF WILLS."
I REALLY LIKE THAT ONE.
IT DOESN'T ANSWER EVERY
QUESTION YOU MIGHT HAVE
ABOUT IT, SUCH AS HOW
EVERYONE'S WILL
CAME TO COINCIDE.
BUT AS FAR AS IT GOES, AND
IT CERTAINLY IS LIMITED
IN TIME, YOU KNOW, A
CONVERGENCE OR CONCURRENCE
OF WILL, IT SUGGESTS IT
IS AT LEAST POSSIBLE
THAT TWO PEOPLE, HERE'S OUR
A PLUS B COMING TOGETHER,
MAGICALLY, OR IN WHATEVER
WAY, TO HAVE C HAPPEN
AT A SINGLE POINT
IN TIME.
SO IT MAY BE A LITTLE
ATOMISTIC IN TERMS OF
YESTERDAY'S DISCUSSION AND
IT DOESN'T SAY WHO IS WHO,
BUT ASSUMING THAT WILLS ARE
EQUAL AND THAT CONCURRENCE
IS LIKE THE CONFLUENCE
OF TWO STREAMS,
YOU HAVE SOMETHING
LIKE AN APPROXIMATION
OF MUTUALITY AS A
DEFINITION OF CONSENT.
THEN IT GOES ON.
IT'S A LITTLE BIT DOWNHILL
FROM THERE IN BLACK'S,
BUT ONLY SLOWLY.
THE NEXT DEFINITION IS,
"VOLUNTARILY YIELDING
THE WILL TO THE
PROPOSITION OF ANOTHER."
DOES THAT SOUND
EQUAL TO YOU?
WELL, IT ISN'T AS BAD AS
INEQUALITY MIGHT GET, RIGHT?
INEQUALITY MIGHT BE
INVOLUNTARILY YIELDING
THE WILL TO THE
PROPOSITION OF ANOTHER.
NOW THAT WOULD BE UNDER
THIS NOT CONSENT, OKAY?
BUT VOLUNTARILY YIELDING
THE WILL TO THE PROPOSITION
OF ANOTHER SOUNDS LIKE A
PROPOSES TO B
THAT THEY DO C, AND B GOES
ALONG WITH IT IN SOME WAY.
THAT IS, IT HAS - YOU
KNOW HOW THOSE SIGNS -
DO YOU HAVE SIGNS IN CANADA -
I THINK WE DO -
THAT SAY YIELD
RIGHT OF WAY?
OKAY, HERE'S THE
RIGHT OF WAY -
YOU KNOW, GOING ALONG.
YIELDING THE WILL TO THE
OTHER INVOLVES SOMEHOW
CONVERGING WITH THE ONE
THAT HAS THE RIGHT OF WAY.
YIELDING TO IT, AND THEN
YOU GO ALONG TOGETHER.
THAT'S SORT OF HOW
I IMAGINE THIS.
IT'S SORT OF - I
MEAN, WHAT IT IS,
IS ONE HAS THE
RIGHT TO PROCEED,
MAKES THE PROPOSITION,
THE OTHER YIELDS TO IT,
I.E., ACQUIESCES IN
IT, AND GOES FORWARD.
NOW THIS IS - I MEAN,
ONE THING ONE WOULD WANT
TO SAY ABOUT THIS, I THINK,
IS THAT IT IS NOT A MODEL
FOR A PRECISELY EQUAL
INTERACTION SINCE
ONE PROPOSES AND THE
OTHER YIELDS.
AT THE SAME TIME, IT
DOESN'T NECESSARILY HAVE
TO MEAN THAT THE SECOND
PERSON IS OVERRIDDEN, OKAY?
YOU'RE NOT LIKE TRAMPLED
IN THIS YIELDING BUSINESS.
IT'S A LITTLE TOP-DOWNISH
BUT IT'S NOT
AS BAD AS IT GETS, OKAY.
NOW A THIRD ONE OR
THE THIRD ONE -
BY THE WAY, ACQUIESCENCE
OR COMPLIANCE
IS THOUGHT TO BE
INCLUDED IN THAT LATTER;
THUS, COMPLIANCE MEANS GOING
ALONG WITH SOMETHING
SOMEONE'S TRYING
TO GET YOU TO DO,
AS DOES ACQUIESCENCE,
WHICH HAS SORT OF A LIKE
FALLING BACK WHILE SOMETHING
GETS DONE IMAGE TO IT.
NOW THE THIRD ONE IS,
"INTELLIGENT CHOICE
TO DO SOMETHING
PROPOSED BY ANOTHER."
INTERESTING THAT'S
DIFFERENT FROM YIELDING
THE RIGHT OF WAY, RIGHT?
INTELLIGENT CHOICE TO DO
SOMETHING PROPOSED
BY ANOTHER SEEMS TO PUT
SORT OF INTELLIGENT TO MEAN
ESSENTIALLY KNOWING - YOU
KNOW WHAT YOU'RE CHOOSING.
SOMEONE COMES ALONG,
POPS THE QUESTION,
YOU SAY YES OR NO, AND
INTELLIGENT MEANS, I THINK,
WITH APPRECIATION OF WHAT
IS ABOUT TO FOLLOW
OR WITH INTELLIGENCE ABOUT
WHAT THE POSSIBLE
CONSEQUENCES MIGHT BE.
NONETHELESS, IT HAS BUILT
INTO IT STILL THIS MODEL
OF ONE PROPOSES AND THE OTHER
DECIDES TO DO IT OR NOT.
NOW THAT MAY BE A MODEL
FOR SOME KIND OF EQUALITY.
IT ISN'T, HOWEVER, THE
CONCURRENCE OF WILLS' MODEL.
THE FOURTH NOTE IS,
"DISTINGUISHED FROM SUBMISSION."

[laughter]

Catharine continues GOOD, RIGHT?
THAT IS CONSENT
IS ONE THING,
SUBMISSION IS ANOTHER.
YOU MAY HAVE BEEN GETTING
A LITTLE NERVOUS AS YOU'VE
GONE THROUGH THESE MEANINGS
WHEN YOU READ ACQUIESCENCE
AND COMPLIANCE CAN BE
CONSISTENT WITH WHAT
IS CONSIDERED TO
BE CONSENT.
SUBMISSION, HOWEVER,
ACCORDING TO THIS, ISN'T.
WE'RE GOING TO GET IN A MINUTE
TO SEE WHETHER LAW DOES
ANYTHING LIKE ANY
OF THIS.
THAT IS, YOU'RE NOT ALLOWED
ACCORDING TO THIS -
TO READ CONSENT DIRECTLY
OUT OF SUBMISSION.
AND THEN THERE IS A FAIRLY
LONG DISCUSSION OF WHAT
IS CALLED ACTIVE ACQUIESCENCE
VERSUS SILENT ACQUIESCENCE.
ACTIVE ACQUIESCENCE
IS APPARENTLY
MORE CONSENT-LIKE.
SILENT ACQUIESCENCE
IS AMBIGUOUS.
NOW THE ACTIVE
ACQUIESCENCE IS, I GATHER,
THE PROPOSITION TO
WHICH SOMEONE SAYS YES.
THAT WOULD BE LIKE ACTIVELY
AGREEING TO SOMETHING
THAT SOMEONE ELSE
HAD PROPOSED.
AND THE SILENT
ACQUIESCENCE,
IT SEEMS TO ME, IT LOOKS
MORE LIKE NOT SAYING NO,
AND IT HAPPENS ANYWAY.
SO THERE'S THAT DISTINCTION
GOING ON IN IT.
NOW THERE IS THEN A FURTHER
EXPRESSED DISCUSSION OF RAPE
AND IT SAYS THIS:
"IF A WOMAN RESISTS" - NOW
WE'RE TALKING ABOUT IT,
RIGHT, CONSENT?
"IF A WOMAN RESISTS TO WHERE
FURTHER RESISTANCE WOULD BE
USELESS, OR IS OVERCOME
BY FORCE OR VIOLENCE,
SUBMISSION AFTER
THAT IS NOT CONSENT."
WELL I'M REALLY
GLAD TO HEAR IT,
BUT IT'S A LITTLE
NERVOUS-MAKING THAT THERE
IS AT LEAST CONSIDERED
TO BE THE POSSIBILITY
THAT A WOMAN COULD RESIST
TO WHERE - I MEAN,
THAT IS, THAT IT IS
ENVISIONED THAT CONSENT
COULD BE POTENTIALLY
CONSISTENT
WITH A CIRCUMSTANCE IN
WHICH THERE WAS PRIOR
EITHER FORCE OR RESISTANCE.
THAT IS TO SAY, HERE WE
HAVE A WOMAN OVERCOME
BY FORCE OR VIOLENCE.
SAY SHE RESISTS BUT IS NOT
NECESSARILY OVERCOME
BY FORCE OR VIOLENCE,
BUT GIVES UP.
I MEAN THERE'S A FAIR AMOUNT
OF POSSIBILITY IN HERE
FOR CONSENT TO BE CONSISTENT
WITH PRIOR FORCE,
PARTICULARLY IF A
TRYER OF FACT DECIDES THAT
THE FORCE ITSELF WASN'T
ENOUGH TO HAVE
OVERCOME HER BY VIOLENCE.
SO THAT SEEMS TO
BE SOMETHING OF
A QUALIFICATION ON THE
MEANINGFULNESS ABOUT SUBMISSION.
NOW A FURTHER DEFINITION OF
CONSENT THAT IS IN THE 1994
CRIMINAL CODE OF CANADA
SEXUAL ASSAULT STATUTE
IS ANOTHER ONE THAT I'D LIKE
TO PUT OUT THERE BECAUSE IT'S,
I THINK, BETTER
COMPREHENDS SOME OF THE ISSUES
THAT I TALKED ABOUT
LAST NIGHT AND IS GOING
TO BE A MORE
INTERESTING BASIS
FOR FURTHER DISCUSSING
THE SUBJECT TODAY.
CONSENT FOR THIS PURPOSE
AND IT SAYS HERE IS
"VOLUNTARY AGREEMENT OF THE
COMPLAINANT TO ENGAGE IN
THE SEXUAL ACTIVITY
IN QUESTION."
SO WE NEED ACTUAL
VOLUNTARY AGREEMENT.
AND THEN IT DEFINES NO
CONSENT IS OBTAINED WHERE,
AND THERE ARE SEVERAL
SPECIFIC CIRCUMSTANCES.
ONE BEING THAT SOMEBODY
ELSE AGREES ON YOUR BEHALF.
THIS ISN'T VOLUNTARY
AGREEMENT ACCORDING TO THIS.
THIS WILL BECOME
SIGNIFICANT.
IT IS SIGNIFICANT BUT IT
WILL BECOME SIGNIFICANT
LATER THIS AFTERNOON.
B, "THE COMPLAINANT IS
INCAPABLE OF CONSENTING
TO THE ACTIVITY."
SAY SHE'S ASLEEP OR
DRUGGED OR PASSED OUT,
OR UNDER AN AGE WHERE IT'S
MEANINGFUL OR OF A MENTAL
CAPACITY THAT IS INCAPABLE
OF CONSENTING TO IT.
AND C, ONE OF THE MOST
INTERESTING FOR OUR PURPOSES,
"THE ACCUSED INDUCES THE
COMPLAINANT TO ENGAGE
IN THE ACTIVITY
BY ABUSING A POSITION
OF TRUST, POWER,
OR AUTHORITY."
ALL RIGHT, NOW THERE'S
OUR POWER WORD.
I DON'T WANT TO SUGGEST
THAT THE LAW UNDERSTANDS
THAT GENDER IS
A FORM OF POWER,
BUT IT DOES STRIKE ME AS AN
IMPORTANT QUESTION TO RAISE
NOW FOR THE SECOND
TIME IN THIS SERIES.
WE THEN HAVE FURTHER
EXCLUSIONS
FROM THE MEANINGFULNESS
OF CONSENT INCLUDING
"THE COMPLAINANT EXPRESSES
BY WORD OR CONDUCT,
LACK OF AGREEMENT TO
ENGAGE IN THE ACTIVITY."
SHE SCREAMS AND RUNS
AWAY, FOR EXAMPLE,
GENERALLY AN INDICATION
ONE DOES NOT WISH
TO ENGAGE IN THE
ACTIVITY.
SHE SAYS NO,
THINGS LIKE THAT.
EXPRESSING BY WORDS
LACK OF AGREEMENT.
THEN, "THE COMPLAINANT HAVING
CONSENTED TO ENGAGE IN IT" -
SHE SAID SHE WANTED TO OR
WAS ENGAGED IN DOING IT BY
CONDUCT, THEN SAYS, "LACK OF
AGREEMENT TO CONTINUE
TO ENGAGE IN IT."
THIS IS ACTUALLY QUITE A
BIG DEAL IN THE LAW OF RAPE.
TRANSLATED IN
NORMAL PARLANCE,
"SHE LED HIM ON AND THEN."
BY WHICH IS GENERALLY MEANT,
HE INFERRED THAT SHE
WANTED TO DO IT AND
THEN SHE DECISIVELY TOLD
HIM THAT SHE DIDN'T.
IN CANADA THAT
MEANS NO CONSENT.
NOW, JUST TO ASK
THE QUESTION,
ARE THESE STANDARDS
GENERICALLY IN APPLICATION?
THAT IS, NOT ONLY IN THE
LAW OF CANADA BUT NOW
TAKING MORE BROADLY CASES
OF RAPE OUT THERE AND HERE
I'M INCLUDING IN PARTICULAR
CASES IN THE UNITED STATES,
YOU HAVE THESE MEANINGS
GENERALLY IN LAW,
AND THEN YOU HAVE WHAT
CONSTITUTES CONSENT
IN FACT IN RAPE CASES.
AS APPLIED, IT WOULD SEEM
IN THE FOLLOWING KINDS OF
CIRCUMSTANCES THESE INCLUDE
SITUATIONS IN WHICH CONSENT
HAVE BEEN FOUND,
AND THIS IS...
IN CASES IN WHICH THE
WOMAN WAS SAYING
SHE DID NOT WANT
TO HAVE SEX,
THAT IS, SHE BROUGHT
A RAPE CHARGE.
THEY INCLUDE CASES OF
TRICKERY AND DECEPTION.
THAT IS, WHERE A WOMAN -
THESE ARE NOW PRINCIPALLY
IN THE UNITED STATES AND
NOT NECESSARILY UNDER
THE NEW CANADIAN STANDARDS -
NEWER CANADIAN STANDARDS,
THAT TRICKERY AND DECEPTION
WHERE SAY A DOCTOR
PERSUADES A WOMAN THAT
EITHER HE IS ENGAGING IN
A MEDICAL PROCEDURE OR SHE
HAS TO IN SOME WAY DO WHAT
AMOUNTS TO HAVING SEX WITH
HIM OR SHE'LL DIE VERY SOON
OF A DEADLY DISEASE,
SOMETHING ALONG THESE LINES,
THAT IS CONSIDERED TO BE
CONSENT IF THE WOMAN
THEN ACCEPTS THE HAVING
OF SEXUAL INTERCOURSE.
CONSENT IS SEEN TO BE GIVEN
WHERE AN EMPLOYER SAYS IF YOU HAVE SEX WITH ME,
I'LL GIVE YOU THIS JOB,
AND IF YOU DON'T HAVE
SEX WITH ME, I WON'T,
OR I'LL GIVE YOU
THIS PROMOTION,
WITHIN THE
EMPLOYMENT SETTING.
CONSENT IS SEEN TO BE
GIVEN TO SEX WHEN A DOCTOR
ADDICTS A WOMAN TO DRUGS
AND THEN REQUIRES HER
TO HAVE SEX WITH HIM IN
ORDER TO GET A FURTHER
PRESCRIPTION
FOR THOSE DRUGS.
CONSENT TO SEX IS SEEN TO
BE GIVEN WHEN A WOMAN WHO
IS ILLEGALLY IN A COUNTRY
TO WHICH SHE HAS FLED
FOR A VARIETY OF REASONS,
THEN HAS TO HAVE SEX WITH
AN IMMIGRATION OFFICER IN
ORDER TO BE ALLOWED TO STAY
IN THE COUNTRY, OR WITH A
MAN TO WHOM SHE DOES NOT
WANT TO BE MARRIED IN ORDER
TO HAVE A MARRIAGE SO THAT
THROUGH THAT MARRIAGE SHE
CAN STAY IN THE COUNTRY
AND NOT GO BACK TO THE
SITUATION IN WHICH
SHE MIGHT BE PERSECUTED
OR OTHERWISE INJURED.
CONSENT IS SEEN TO BE GIVEN
IN CASES WHERE A YOUNG
WOMAN WAS TOLD BY HER HIGH
SCHOOL COACH THAT IF
SHE DIDN'T HAVE SEX WITH
HIM, HE WOULD NOT LET
HER GRADUATE FROM
HIGH SCHOOL.
WHEN A YOUNG WOMAN HAD SEX
WITH HER STEPFATHER
IN ORDER NOT TO DISTURB HER
MOTHER IN THE NEXT ROOM
AND BECAUSE SHE
WAS TERRIFIED.
IN CASES IN WHICH A YOUNG
WOMAN IS OUT BIKING,
PICKED UP BY A MAN - A MAN
JUST SORT OF SAYING,
HI, HOW ARE YOU.
THEY START TALKING.
HE'S TWICE AS
TALL AS SHE IS.
PICKS HER UP, TAKES HER
INTO THE WOODS, RAPES HER,
AND THEN TAKES HER BACK AND
PUTS HER ON HER BICYCLE.
THIS IS WHAT
CONSENT LOOKS LIKE,
AT LEAST IN SOME STATES.
CONSENT HAS BEEN SAID TO
HAVE EXISTED WHEN POLICE
OFFICERS HAVE STOPPED
WOMEN FOR REAL OR IMAGINED
INFRACTIONS AND IMPLIED
THAT THEY WOULD WAIVE
THE ARREST IF THE WOMEN WOULD
HAVE ORAL SEX WITH THEM.
CONSENT HAS BEEN FOUND IN
CASES IN WHICH YOUNG WOMEN
IN SCHOOLS WAKE UP WITH
YOUNG MEN ON TOP OF THEM
AND INSIDE OF THEM AND FIND
THEMSELVES TERRORIZED,
SCARED, PARALYZED
WITH FEAR OR WHATEVER.
THE SEX TAKES PLACE WHICH
USUALLY MEANS IN THESE CASES
THE MAN COMES,
AND HE THEN GETS OFF.
THIS IS CALLED
ACQUIESCENCE.
CONSENT IS ALSO FOUND IN
THE SITUATION OF WHERE
ONE HAS HAD A RELATIONSHIP
WITH A MAN IN THE PAST,
FINDS - ENCOUNTERS
HIM IN SOME SETTING,
WHICH INCLUDE, HE'S BEEN
FOLLOWING YOU AROUND.
YOU GO BACK TO SOME PLACE
WHICH CAN INCLUDE HIS HOME.
A SERIES OF EVENTS OCCUR
IN WHICH YOU SAY YOU DON'T
WANT TO HAVE SEX
BUT NONETHELESS DO.
IT'S THEN IMPLIED OR
FOUND TO BE IMPLIED
THAT YOU CONSENTED.
CONSENT HAS ALSO BEEN FOUND
IN GANG RAPE SITUATIONS,
NOT THE FIRST GUY,
NOT THE SECOND GUY,
BUT THE THIRD GUY AT THE
POINT AT WHICH THE WOMAN
IS LYING THERE SEMI-COMATOSE
AND NAKED ON THE BED,
AND THE GUY WHO WATCHED
THE FIRST TIME AND
THE SECOND TIME,
YOU KNOW, PILES ON.
THE FACT THAT THE WOMAN
IS "JUST LYING THERE."
HAS IN SOME INSTANCES
BEEN FOUND TO SHOW CONSENT,
AND IF NOT CONSENT,
THEN MISTAKEN BELIEF
IN CONSENT ON THE PART
OF THE THIRD MAN.
WHAT'S A GUY
SUPPOSED TO THINK?
NOW I WOULD JUST SAY ABOUT
THESE CASES THAT
THEY ARE ALL DESCRIBED
UNCONTROVERSIALLY BY SAYING
THAT THE YOUNG WOMEN
IN THOSE CASES
DID NOT WANT TO
HAVE SEX.
NEITHER DID THE
OLDER WOMEN.
THAT IS, THESE ARE
SITUATIONS IN WHICH CONSENT
WAS FOUND AND THE WOMEN
DIDN'T WANT THE SEX.
WHAT WE LEARN FROM THIS IS
THAT UNDESIRED ACQUIESCENCE
UNDER CONDITIONS
OF INEQUALITY,
WHICH INCLUDES CONDITIONS
OF SEX INEQUALITY,
ALSO INCLUDES MANY, MANY
FORMS OF HIERARCHY.
SOMETIMES PILED ON
TOP OF EACH OTHER,
AND CAN ALSO INCLUDE A
LOT OF FORMS OF ACTUAL
PHYSICAL FORCE,
CAN PRODUCE A LEGAL
FINDING OF CONSENT.
IN ORDER WORDS, CONSENT
AS LEGALLY APPLIED
CAN MEAN SEX YOU
DON'T WANT TO HAVE.
IT CAN ALSO MEAN AND
INCLUDE SITUATIONS
THAT ONE CANNOT
GET OUT OF.
SITUATIONS IN WHICH MANY
FORMS OF FORCE ARE AT WORK.
USUALLY OTHER THAN SIMPLY
THE IMMEDIATE PHYSICAL FORCE
WHICH, AS I
SAID LAST NIGHT,
IS THE PRIMARY MODEL
FOR WHAT FORCE IS -
FOR WHAT POWER IS.
BUT THERE ARE MANY, MANY
OTHER FORMS OF IT.
IN THESE EXAMPLES WE HAVE
EVERYTHING FROM, YOU KNOW,
FAMILY TO THE POWER OF THE
STATE, THROUGH THE POLICE,
THROUGH DOCTORS,
TO EMPLOYMENT,
PROVIDING ECONOMIC
LEVERAGE,
TO ONE'S ACCESS TO
AN EDUCATION
AND THE BENEFITS OF IT.
DID I SAY FAMILY?
JUST - YES, JUST FAMILY.
THE PATRIARCHAL POWER IN
ITS MOST NARROW FORM.
THE POWER OF BEING TWICE
AS BIG OFTEN MEANS
THAT ONE DOESN'T HAVE
TO BEAT SOMEONE UP
IN ORDER TO HAVE SEX.
IT'S JUST POINTLESS TO
TRY TO RESIST UNDER
THOSE CIRCUMSTANCES MANY
WOMEN EXPERIENCE.
AND ALSO SORT OF THE POWER
OF PRIOR CONSENT BEING
EFFECTIVELY FACTORED IN,
EVEN IF AS A LEGAL MATTER
IT'S NOT SUPPOSED
TO HAVE BEEN.
AND YOU KNOW YOU CAN SEE
FROM THIS BACKDROP OF CASES,
THE CANADIAN STATUTE
TRYING TO THINK THROUGH WAYS
OF ADDRESSING
A GOOD MANY OF THEM,
AND SOME OF THEM,
IT DOES.
NOT ALL OF THEM.
MY POINT HOWEVER IS THAT
WHENEVER THESE KINDS OF CASES
HAPPEN AND THEY
CONTINUE TO HAPPEN
IN A VARIETY OF WAYS, WHAT
YOU HAVE IS A FINDING
OF CONSENT, THE USE OF
THE TERM CONSENT,
IN WHICH THE REAL ACTUAL
MEANING OF IT INCLUDES SEX
THAT PEOPLE CAN'T NOT
HAVE BUT DIDN'T WANT.
NOW, THAT IS, IT INCLUDES
PUTTING UP WITH THINGS
YOU CAN'T GET OUT OF,
AND IT INCLUDES HAVING
LITTLE CHOICE BUT
TO COMPLY.
IT ALSO, OF COURSE, INCLUDES
THINGS THAT ARE FREELY
CHOSEN, CONSENT DOES.
BUT THAT ISN'T A
PROBLEM, RIGHT?
IN OTHER WORDS, HOWEVER
MUCH SEX PEOPLE ARE HAVING
OUT THERE THAT REALLY
IS FREELY CHOSEN,
THAT THEY REALLY
DO WANT TO HAVE,
DOES NOT POSE ANY
PARTICULAR PROBLEM
FOR PURPOSES OF
SEX INEQUALITY.
WHAT DOES POSE A PROBLEM
IS ACTIVITY THAT IS
HARDLY FREE, INDEED
ANYTHING BUT,
IS HARDLY WANTED...
BUT ENCOMPASSES WHAT WOMEN
BECAUSE OF SEX INEQUALITY
HAVE LITTLE PRACTICAL
CHOICE BUT TO DO.
YET THEN SOMEHOW BECOMES
TRANSFORMED
INTO A PRESENTATION OF
IT AS SOMEHOW FREE
BY TERMING IT CONSENSUAL,
WHEN, IN FACT, IT ISN'T FREE.
IT'S UNEQUAL.
IT'S NOT FREE.
IT'S ABSOLUTELY UNEQUAL BUT
IT'S CALLED CONSENSUAL.
IT SEEMS TO ME THAT
ACTIVITY UNDER THE KINDS
OF SITUATIONS THAT I'VE
ENUMERATED WOULD NOT BE
CONSIDERED FREE IN ANY AREA
OTHER THAN THE SEXUAL.
WHAT I WOULD NOW LIKE TO
TALK ABOUT AND
HOW I'D LIKE TO APPLY
THIS ANALYSIS INVOLVES
THE AREA OF PROSTITUTION.
THERE IS A SUBSTANTIAL
DEBATE ABOUT WHETHER WOMEN
WHO ARE PROSTITUTED, WOMEN
WHO ARE IN PROSTITUTION,
CONSENT TO IT.
AND THIS DEBATE REVOLVES
AROUND WHETHER THEY ARE FREELY
ACTING OR WHETHER
THEY ARE CONSTRAINED
AND IF CONSTRAINED
TO WHAT EXTENT.
AND IT ALSO REVOLVES AROUND
A USE OF THE TERM CONSENT,
SUCH THAT IT IS
DEEMED, FOR EXAMPLE,
THAT PROSTITUTION
IS VICTIMLESS BECAUSE
WOMEN CONSENT TO IT.
AND IT IS SPECIFICALLY
THOUGHT THAT THEY CONSENT
TO IT LARGELY BECAUSE
THEY ARE PAID FOR IT.
WE ARE ESSENTIALLY TOLD
THAT WOMEN CONSENT
TO PROSTITUTION, I.E.
FREELY CHOOSE TO BE IN IT,
IN THAT FREEDOM-LIKE
USE OF THE WORD CONSENT,
BECAUSE THEY
ARE PAID FOR IT.
NOW I'D JUST LIKE TO FIRST
GIVE A BRIEF EMPIRICAL
DESCRIPTIVE BACKDROP
OF WHAT GOES ON
IN PROSTITUTION, HOW
WOMEN - WHO'S IN IT,
HOW MAINLY WOMEN
GET INTO IT,
AND WHAT SOME OF ITS
CONSEQUENCES ARE,
AND THEN DISCUSS - TRY
TO GIVE AN ANATOMY
OF THE TERM CONSENT IN
THIS PARTICULAR SETTING.
IT'S A SEXUAL SETTING LIKE
THE RAPE LAW SETTING
IS A SEXUAL SETTING,
SO THERE'S SOMETHING -
THERE'S GOING TO
PARALLEL THERE.
DESCRIPTIVELY IN
PROSTITUTION MOST
OF THE PEOPLE WHO ARE
IN IT ARE WOMEN.
THEY ARE WOMEN
AND CHILDREN.
THERE ARE SOME
MEN IN IT.
MOST MEN WHO ARE IN
PROSTITUTION
ARE PROSTITUTING
AS WOMEN.
WHY IT IS THAT MOST
PROSTITUTED PEOPLE ARE WOMEN
SEEMS TO ME TO BE AN
IMPORTANT QUESTION TO ASK
IN A SEX EQUALITY
SETTING.
MOST OF THOSE WOMEN AND
THE WOMEN AND CHILDREN,
AND THE MEN, MOST OF WHOM
ARE PROSTITUTING
AS WOMEN, ARE POOR.
THEY ARE VASTLY
DISPROPORTIONATELY -
DISPROPORTIONATELY
WOMEN OF COLOUR.
THEY ARE SUBJECTED, MOST OF
THEM, TO A TREMENDOUS AMOUNT
OF COLLATERAL VIOLENCE,
THAT IS, OTHER THAN THE SEX
IN THE SITUATION HOWEVER IT
IS YOU EVALUATE THAT SEX.
THERE IS A TREMENDOUS
AMOUNT OF WELL-DOCUMENTED
VIOLENCE IN THE
ACTIVITY ITSELF.
MOST OF THEM ARE WELL
DOCUMENTED TO HAVE BEEN
SEXUALLY ABUSED AS CHILDREN
BEFORE THEY GOT INTO
PROSTITUTION, ALTHOUGH
MOST WOMEN IN PROSTITUTION
ENTERED IT AS CHILDREN.
WHEN ASKED, MOST OF THEM
AND THIS IS A CANADIAN
STUDY - SAY THAT THEY
WOULD LEAVE IF THEY COULD
BUT FEEL THAT THEY CAN'T,
DO NOT KNOW HOW TO.
THEY HAVE A DEATH RATE
ABOUT 40 TIMES THE NATIONAL
AVERAGE - THAT'S
A CANADIAN FIGURE.
AND IN INTERNATIONAL
STUDIES,
THEIR RATE OF
POST-TRAUMATIC STRESS
IS HIGHER THAN THAT OF MEN
WHO HAVE SURVIVED TORTURE
IN CONCENTRATION CAMPS
AND SITUATIONS
OF MASS SLAUGHTER
IN A WAR.
NOW THE FIRST THING I WANT
TO SAY IN THAT SETTING
ABOUT THE NOTION THAT MONEY
CONSTITUTES CONSENT TO SEX
IN PROSTITUTION IS
ACTUALLY A TRIVIAL POINT,
BUT A REAL ONE.
AND THAT IS THAT THE
WOMEN IN PROSTITUTION,
IF PAID AT ALL, ARE
NOT PAID VERY MUCH.
WOMEN ARE SOLD THESE DAYS,
JUST AS AN EXAMPLE,
INTO BROTHELS IN EASTERN
EUROPE FOR ABOUT THE THIRD
OF THE PRICE OF A STOLEN
CAR IN THE SAME LOCATION.
THE OTHER OBSERVATION
I'D LIKE TO MAKE ABOUT
NOT GETTING PAID VERY
MUCH FOR PROSTITUTION,
APART FROM THE FACT THAT IT
SHOWS THAT THIS AND WOMEN
HAVE A LOW VALUE, IS THAT
NOBODY SAYS THAT WOMEN CONSENT
TO UNEQUAL PAY BECAUSE
THEY ACCEPT THE MONEY
IN THE JOBS IN WHICH
THEY'RE PAID LOW.
THERE ARE LEGAL CLAIMS
FOR UNEQUAL PAY AT WORK.
THEY ALL APPLY TO PEOPLE
WHO'VE ACCEPTED THAT PAY.
THEY WANTED THE JOBS.
THEY TOOK THEM.
THEY WERE GIVEN THIS VERY
LITTLE MONEY AND THEN
OF ALL UNGRATEFUL ACTS,
SUED TO GET MORE MONEY.
NOBODY SAYS, WHAT'S
YOUR PROBLEM,
YOU CONSENTED TO TAKE LESS
PAY SO WHAT ARE YOU NOW
DOING TURNING ABOUT AND
ACTING AS THOUGH
THERE'S AN INJURY THAT'S
BEEN DONE TO YOU?
YOU ACCEPTED IT.
YOU ACQUIESCED IN IT.
YOU COMPLIED IN IT.
YOU EVEN ASKED FOR IT.
YOU WENT AND GOT THIS JOB
THAT PAYS THIS CRUMMY
AMOUNT OF MONEY.
I MEAN NONE OF THAT
HAS ANYTHING TO DO
WITH AN EQUALITY STANDARD
FOR GETTING PAID.
I JUST - I CAN'T GET
AROUND THAT, YOU KNOW,
THAT IF YOU ASK
THE QUESTION,
DO WOMEN CONSENT
TO INEQUALITY,
THE ANSWER FOR MONEY IS
NO AMOUNT OF CONSENT
MAKES UP FOR THE INEQUALITY
IF IT'S UNEQUAL PAY.
BUT THE ANSWER FOR SEX APPEARS
TO BE ENTIRELY DIFFERENT.
NOW THIS IS, I THINK, THE
MORE IMPORTANT POINT.
I WANT TO ASK HOW IT IS THE
MONEY IN PROSTITUTION WORKS
TO MAKE SEX THAT THE
WOMEN ARE HAVING THERE
DEEMED CONSENSUAL THEN
TRANSFORMED INTO FREE,
THAT IS FREELY CHOSEN.
SHE'S EXPRESSING HER
FREEDOM WHEN SHE'S
ENGAGING IN PROSTITUTION.
MY QUESTION IS, DOES
MONEY MAKE SEX FREE?
IT SEEMS TO ME THAT
GENERALLY WHEN PEOPLE
HAVE SEX WITH EACH OTHER, THEY
DON'T PAY EACH OTHER MONEY.
THE POINT OF SEX WITH
ANOTHER PERSON
IS USUALLY ITS OWN
REWARD, RIGHT?
I MEAN, YOU'RE
DOING IT TO DO IT.
WHAT YOU GET OUT OF IT
IS THAT YOU'RE DOING IT.
AT LEAST THAT'S
SUPPOSED TO BE THE IDEA.
IT SEEMS THAT SEX IN
PROSTITUTION IS SEX
THAT THE WOMAN WOULDN'T BE
HAVING IF SHE WEREN'T
BEING PAID FOR IT.
IT SEEMS TO ME THEREFORE
THE MONEY OPERATES
AS A FORM OF FORCE
IN PROSTITUTION;
THAT IS, TO GET HER TO DO
SOMETHING SHE WOULDN'T
OTHERWISE DO,
NAMELY SEX...
IT'S THEN DEEMED CONSENSUAL
AND TRANSFORMED INTO FREE
IN THIS MAGICAL WAY.
WHEN IN FACT WHAT SEEMS TO
ME IS GOING ON THERE
IS THAT WITH THE MONEY
OPERATING AS A FORM OF FORCE,
THAT THE PAYMENT OF
MONEY IS AN EXPRESSION
OF THE INEQUALITY IN
THE RELATIONSHIP,
NOT SOMETHING THAT
MAKES THE RELATIONSHIP
INTO AN EQUAL ONE.
I MEAN, DO YOU MAKE A
CUSTOMER, YOU KNOW,
THE TRICK AND THE
PROSTITUTED WOMAN EQUALS
BY THE EXCHANGE OF MONEY?
I MEAN, DOES IT CREATE
EQUALITY BETWEEN THEM,
HIM PAYING HER?
IT SEEMS TO ME THAT THE
MONEY THAT IS SAID TO MAKE
PROSTITUTION FREE ONLY
PROVES THAT IT'S FORCED.
IN A WAY THAT SORT OF
TAKES THIS POINT FURTHER,
THE COALITION AGAINST
TRAFFICKING IN WOMEN SAYS THIS,
THEY SAY THAT "THE MONEY IN
PROSTITUTION REDEFINES
AS PROSTITUTION THE
RAPE, BATTERING,
AND SEXUAL ABUSE THAT
THE CUSTOMER COMMIT;."
IN OTHER WORDS,
PROSTITUTION IS THOUGHT OF
AS BEING CONSENSUAL BECAUSE
YOU HAVE SEX WITH A WOMAN
WHO WOULD NEVER OTHERWISE
HAVE SEX WITH YOU
AND THROW MONEY AT HER.
IT'S THEREFORE
PROSTITUTION,
DEEMED CONSENSUAL, AND SHE IS
SAID TO BE FREELY ACTING.
IT SEEMS TO ME AT THIS
POINT THAT IT'S WORTH
OBSERVING THAT IF YOU PUT
UP WITH SOMETHING THAT
WOULD OTHERWISE BE ABUSE,
BECAUSE YOU'RE PAID FOR IT,
THAT DOESN'T MAKE
YOU FREE.
IT MAKES YOU EXPLOITED.
AND IN THE AREA OF LABOUR,
I THINK EVERYONE KNOWS THIS.
PEOPLE UNDERSTAND THAT
IF YOU ARE DOING A JOB
THAT YOU WOULD
NEVER OTHERWISE DO,
THAT HAS A DEATH RATE 40
TIMES THE NATIONAL AVERAGE,
THAT PRODUCES A STRESS RATE
IN WHICH YOU HAVE REPEATED
DISTURBING MEMORIES,
YOU AVOID THINKING
OR TALKING ABOUT IT,
YOU LOSE INTEREST IN
ALL OTHER ACTIVITIES,
YOU FEEL DISTANT, CUT OFF,
EMOTIONALLY NUMB AND UNABLE
TO HAVE LOVING FEELINGS
ABOUT PEOPLE CLOSE TO YOU,
YOU THINK YOUR FUTURE IS
ABOUT TO BE CUT SHORT,
HAVE A PHYSICAL REACTION
LIKE YOUR HEART IS POUNDING,
YOU'RE SWEATING, YOU HAVE
TROUBLE BREATHING,
TROUBLE SLEEPING, ARE
IRRITABLE AND HYPER ALERT -
ALL OF WHICH ARE THE
SYMPTOMS OF POST-TRAUMATIC
STRESS - THAT YOU'RE
BEING EXPLOITED AT WORK.
IF IT'S WORK OR WHATEVER
OTHER SITUATION THAT YOU'RE IN,
AND THAT THE AMOUNT
OF MONEY THAT SOMEONE
IS GIVING YOU TO DO THAT
DOESN'T MAKE YOU FREE.
IT MAKES YOU STUCK.
IT MAKES YOU, IN A
CERTAIN SENSE, ENSLAVED.
NOW ALL OF THIS HAS BEEN
ON THE ASSUMPTION
THAT THE WOMAN ACTUALLY
GETS THE MONEY.
MOST WOMEN IN PROSTITUTION
ARE PIMPED, WORLDWIDE.
NOT ALL.
AT LEAST SO FAR AS IS
KNOWN MOST WOMEN ARE.
AND I JUST WANT TO TALK
ABOUT THAT VERY LARGE
CATEGORY OF WOMEN IN
PROSTITUTION WHO ARE PIMPED.
WHEN THEY ARE -
THIS IS, BY THE WAY,
WHAT IS CALL OFTEN
TRAFFICKING.
YOU KNOW PROSTITUTION THUS
ACQUIRES AN AURA OF FREEDOM
WHILE TRAFFICKING IS
THOUGHT TO BE THAT FORCED PART,
WHICH IS PRETTY MUCH A
FALSE DISTINCTION,
I THINK, IN THE SENSE - IN
CONTEXT OF THIS ANALYSIS.
SO NOW, HERE ARE MOST WOMEN
WHO ARE IN PROSTITUTION WHO
ARE BEING PIMPED SUCH THAT THEY
ARE NOT RECEIVING THE MONEY.
THE PIMP IS
RECEIVING MOST OF IT.
I WANT TO KNOW WHO'S DOING
THIS MAGICAL THING CALLED
CONSENT IN THIS PICTURE?
THE IDEA IS THAT SHE
CONSENTS TO HAVE SEX
BECAUSE ONE MAN PAYS
ANOTHER MAN TO USE HER.
SOMEHOW THE CONSENT NOTION
STILL ATTACHES TO HER EVEN
THOUGH SHE DOESN'T EVEN
GET WHAT IS SUPPOSED
TO PROVIDE THE CONSENT,
NAMELY, THE MONEY.
AT THIS POINT YOU BEGIN
TO THINK THAT WOMEN ARE
SORT OF WALKING
CONSENT OR SOMETHING.
WHENEVER SEX HAPPENS,
WE CONSENTED TO IT.
WELL SHE CONSENTED TO IT
BECAUSE SHE DIDN'T SCREAM
AND RUN AWAY AND SAY
NO, OR EVEN IF SHE DID,
SHE CONSENTED TO IT BECAUSE
SHE WAS PAID FOR IT,
EVEN IF SHE HAD NO
OTHER OPTIONS IN LIFE.
NOW WE GET SHE'S CONSENTED
TO IT BECAUSE SOMEONE ELSE
GETS PAID FOR IT AND IS
EITHER KEEPING HER ADDICTED
TO DRUGS, OFTEN THERE'S
A SUBSTANTIAL AMOUNT
OF VIOLENCE GOING ON, OR
BECAUSE SHE HAS NO OPTION
FEW OPTIONS, NO
GOOD ONES, OTHERWISE.
NONETHELESS, IT IS
CALLED CONSENT
AND SHE'S DEEMED
TO BE FREE.
NOW IT SEEMS TO ME THAT THIS
TERM CONSENT MORE OR LESS
FROM BEGINNING TO END
IS A REALLY POOR
EXCUSE FOR FREEDOM.
IT IS A SHABBY COVER-UP
FOR INEQUALITY.
AND IT IS A NOTION OF
FREEDOM THAT WOULD
NEVER BE ACCEPTED AND IS NOT
ACCEPTED AND IS NOT APPLIED
AND IS NOT USED IN ANY
OTHER AREA OF LIFE
OTHER THAN THIS ONE.
IF WOMEN AND MEN WERE
EQUAL, IT SEEMS TO ME,
AND EVEN ASSUMING EQUALITY
BETWEEN WOMEN AND MEN IN SEX,
IT DOESN'T UNDER
CERTAIN CIRCUMSTANCES
NONE OF IT IS MET BY THE
ACTUAL TERM, ACTUAL WAY,
ACTUAL CONTENT,
ACTUAL APPLICATION
OF THE TERM CONSENT IN
AUTHORITATIVE SETTINGS.
IT ALSO MAKES ONE WONDER AT
THIS POINT JUST WHAT REALLY
IS THE DISTINCTION
BETWEEN PROSTITUTION
AND RAPE IN REALITY.
IT SEEMS TO ME
THERE THAT...
PHYSICAL FORCE AND OTHER
FORMS OF HIERARCHY
PROVIDE THE FORCE IN
RAPE THAT MONEY
AND OTHER FORMS
OF HIERARCHY INCLUDING
ECONOMICS PROVIDE
IN PROSTITUTION.
AND THAT PROSTITUTION
IS DESCRIBABLE
IN THIS ANALYSIS, IN THESE
TERMS, AS SERIAL RAPE.
MONEY OR NO MONEY.
NOW THAT'S A USE
OF THE TERM RAPE
THAT TAKES THE INEQUALITY
SERIOUSLY.
OF COURSE GIVEN THAT
CONSENT IS A DEFENSE
TO RAPE IN THE LAW, IT ISN'T A
LEGAL USE OF THE TERM RAPE
AT ALL, BECAUSE MOST
PROSTITUTION IS OF COURSE
DEEMED CONSENSUAL.
NOW I'D JUST LIKE TO GIVE
ONE BRIEF COUNTER-EXAMPLE
OF AN ALTERNATIVE APPROACH
TO THIS WHOLE ISSUE.
MY WHOLE POINT,
AS YOU'VE SEEN,
HAS BEEN THAT CONSENT, THE
REAL MEANING THAT IS GIVEN
TO CONSENT IS NOT WHAT
IS MEANT BY FREEDOM.
IT IS CERTAINLY NOT WHAT
IS USUALLY MEANT -
USUALLY MEANT BY FREEDOM.
IT IS CERTAINLY NOT WHAT
IS MEANT BY EQUALITY.
WELL WHAT WOULD IT LOOK
LIKE TO HAVE A LEGAL STANDARD
THAT MET AN
EQUALITY STANDARD,
ONE THAT DIDN'T
BUILD IN INEQUALITY
THE WAY THIS ONE HAS.
IT SEEMS TO ME THAT ONE
REAL POSSIBILITY IS PRESENT
IN THE LAW OF SEXUAL
HARASSMENT AND THAT IS
THE LAW OF SEXUAL HARASSMENT
WHEN IT LOOKS AT - IT'S AN
EQUALITY LAW, AN AREA THAT
IS ATTEMPTING TO PROMOTE
EQUALITY IN SOCIETY AND TO
MEET AN EQUALITY STANDARD,
AND TO SET ONE, RIGHT?
THERE AREN'T EQUALITY
STANDARDS, IT WOULD SEEM,
FOR THE CRIMINAL LAW, AS
WE'VE JUST BEEN LOOKING AT.
NOT SEX EQUALITY STANDARD.
BUT SOMETHING
THAT, YOU KNOW,
AN AREA OF LAW THAT IS A
SEX EQUALITY AREA
THAT DOES MEET THESE
STANDARDS SEEMS TO ME
IS THE SEXUAL
HARASSMENT LAW.
AND IT DOESN'T HAVE A CONSENT
STANDARD FOR LOOKING AT
WHEN SEXUAL RELATIONSHIPS
BETWEEN WOMEN AND MEN,
SAY IN THE WORKPLACE
OR IN EDUCATION,
ARE DISCRIMINATORY,
I.E., UNEQUAL OR NOT.
IT HAS INSTEAD AN
UNWELCOMENESS STANDARD.
IT DOESN'T LOOK AT
VOLUNTARY COMPLIANCE.
IT DOESN'T LOOK AT
SUBMISSION UNDER CONDITIONS
OF INEQUALITY AND
SAY, OH, WELL,
I GUESS SHE WASN'T
SEXUAL HARASSED.
IT DOESN'T LOOK AT RAPE
SITUATIONS AND SAY,
WELL, SHE PUT UP WITH
IT TO KEEP HER JOB
SO I GUESS IT
ISN'T RAPE.
SHE CONSENTED.
IT LOOKS AT IT AND SAYS,
SHE PUT UP WITH IT
TO KEEP HER JOB.
THAT MEANS IT
WAS UNWELCOME.
IT MEANS SHE DIDN'T
WANT THE SEX.
IT'S AMAZING HOW STRENUOUS
YOU HAVE TO GET TO SORT OF
GET ACROSS THE POINT THAT
IT'S WHAT WOMEN WANT
THAT IS THE REAL
ISSUE HERE.
AND THAT THERE'S SOMETHING
AFFIRMATIVE ABOUT THAT.
SO THAT SAY VOLUNTARY
COMPLIANCE DOESN'T COUNT.
WELCOMENESS
MEANS, YOU KNOW,
WHAT YOU FREELY DESIRE,
WHAT YOU ACTUALLY WANT,
WHAT YOU OPENLY SEEK.
YOU KNOW, IT'S THE
DIFFERENCE BETWEEN SAYING YES
AND MEANING IT UNDER
CONDITIONS UNDER WHICH
IF YOU SAY NO, THE BOTTOM
ISN'T ABOUT TO DROP OUT.
AND ALL THESE OTHER
CIRCUMSTANCES.
THAT IS, UNWELCOMENESS
IS NOT A COVER FOR
THE REAL CONSTRAINTS
OF SEX INEQUALITY
THAT ARE BUILT IN TO THE
EXISTING LAW OF CONSENT;
IT IS, IN FACT,
STRUCTURED AROUND WHAT
WOMEN AFFIRMATIVELY
WANT.
THANK YOU FOR LISTENING
AND WE CAN NOW
HAVE A DISCUSSION.

[applause]

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Big Ideas, TVONTARIO, Box 200, Station Q, Toronto, Ontario, Canada. M4T 2T1.

Producer, Wodek Szemberg.

Associate Producer, Mike Miner.

Sound, Horst Mueller.

Executive Producer, Doug Grant.

A production of TVOntario. Copyright 2001, The Ontario Educational Communications Authority.

Watch: Catharine Mackinnon on Consent and Rape Laws