CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, October 20, 2016

Guest post: Dan Subotnik: “Redefining Rape”? Let’s Hope Not; Or Catharine MacKinnon is at it Again

Subotnik danOur Genitals, Ourselves.

For many years, chaired Harvard law professor, feminist icon, and mother of sexual harassment jurisprudence Catharine MacKinnon has held that, far from being an emotional and physical blessing, sex is an attack on women’s bodies and a model, if not the very foundation, of gender inequality. Except for women in deep emotional relationships (to be defined and discussed below), sex is unwanted and injurious and, accordingly, should be criminalized.

Is this another example of how, when applied to specific problems, the consuming ideologies of even the smartest and best-trained people can yield irrational and unhealthy solutions?  Or is this engagement with MacKinnon another example of patriarchal overreach?    

In any event, consistent with the foregoing view, MacKinnon’s recent piece “Redefining Rape,” (Harvard Law & Policy Review v. 10)  portrays men as the doing-to—and women as the done-to—sex.  This binary is not new.  Leading feminist law professor Robin West developed the theme twenty years ago.  A  number of women and I have critiqued these “sex-negative” views.  On the basis of this existing literature, there would seem to be no need for a response to MacKinnon’s piece.  But given her stature, the arrival of a new generation of young people, and the continuing and intense debates over unwanted sex, “Redefining Rape” should not be ignored.    

One can readily understand the “attack” part, given the physicality of sex.  And yet intercourse can be understood in other ways.  Richard Posner has suggested that the sexual act can as easily be seen as the woman enveloping the man. A number of commentators have pointed out that rather than empowering the man, sex juices and enfeebles him, highlighted by his quick retreat.  According to MacKinnon, unwanted sex-- defined here and by MacKinnon as sex that women would not participate in if they were really free to choose--stems from the culture of gender inequality produced by patriarchy, in the absence of which there might well be no rape. (Query whether this means anything more than that if there is no sex, there is no rape.)

Sex further, according to MacKinnon, is not just its nuts and bolts.   Men shape women’s values and behavior through the media and through personal threats. The result is that women are “coerced” into having sex with the men around them, including not only boyfriends but also employers, supervisors, attorneys, doctors, teachers, and others with “social power” (never defined) over them.  

An additional contributor to unwanted sex, says MacKinnon, is that women can become frozen by the intimate attentions of men. As a result, they cannot muster the strength to say no, an inability that experience tells them may end in unpleasantness, or worse.  

As for damage from morally tarnished sex, West writes that when a woman makes love,  “at least ideally,” the woman loses a part of her identity, of her very self, which can never be recovered. But should our criminal law be grounded on “ideal” love-making rather than on run-of- the-mill-sex?  It is a question we shall come back to.

 The precise effects of the claimed psychic amputation of the woman in this ideal case are unclear.  It would seem that she develops a sense of self-loathing which prevents her from living a full life and from objecting to further depredations. This being the case, the law must protect women against most sex.

Seen this way, however, (1) shouldn’t all sex, including say, the marital kind, be deemed rape, as West implies?   (2) Why has the law not stepped up?  (3) Are MacKinnon and West describing real women’s sexual experience?  

As to the first question, politics may be at play. Perhaps MacKinnon believes, quite reasonably, that without the support of married women, a legislative platform of rape reform would stand no chance of success. As to the second, the law is limited in what it can do to protect women from their dates because evidence of who initiates, who is providing the pressure, and what is said and done in the privacy of the bedroom or couch is often deficient in the context of a preponderance-of-the evidence regime, much less that of beyond a reasonable doubt. MacKinnon proposes that the law  shift its attention from what the woman said to “what the man did.” But how to know what is really wanted without listening to what the woman says she and he did?  In a liberal regime, what the woman says is critical. The more central objection to MacKinnon here is that she explicitly rejects a choice-based liberal regime on the ground that sex too often is harmful.      

As for threats, those involving force are already within the purview of the criminal law. But that law is handicapped in dealing with other kinds of threats that MacKinnon may be worried about.  Assuming, for example, that the man explicitly or implicitly threatens to find   gratification elsewhere if he does not get his way, the law is helpless. The man surely has a right  to the pursuit of his own happiness.

Regarding coercion by social status, offsetting the evidentiary problems is the protection offered through employment discrimination rules and professional codes of conduct. While these are far from perfect, as MacKinnon rightfully points out, abuses by men can lead to loss of licenses and suits for damages, and this can discourage men from exploiting women.     

The third and most important question can be put off no longer: while it is easy to lose your self in sex, is that loss permanent?  West compares engaging in sex to selling a computer, where women do not give up a part of themselves.  But is “giving up” sex like. say,  giving up a body part, which may be illegal?  The metaphor does not work, for when you give up sex, not to put too fine a point on it, “you can eat your cake” and “have it too.”

 Criminalizing sex by men because, as a woman feels it, sex = self, although rational in MacKinnon’s terms, has toxic implications.  If through sex, the man has appropriated the essence of his partner, she is no longer the same person. But do we really want to revive a convention that has wrecked countless women’s lives historically and in our own time?

Denying women the power to make her own sexual decisions, more generally, infantilizes them and undermines their general sense of agency. If a woman’s yes has no meaning, if she does not know herself well enough to cut a deal, she can hardly exercise political or economic power in this world.     

To honor MacKinnon we need to find other ways of testing  her notion of female sexual victimization.  Economic power differentials between the sexes has been offered as one. In this respect, however, it can no longer be presumed, as arguably it could be at the time of MacKinnon’s first salvo, that, wielding the economic power, the man can get his needs satisfied. Women are now the primary breadwinners in 40% of American families. A (short)  psycholinguistic inquiry may be instructive here. I  carefully, if boldly, approached a few women students at my school and, providing trigger warnings, asked them how, if they were drinking at bar with a close friend, they might describe the good sex that they had had the previous night with a new date. (Reader alert:  I wanted to continue the study, and if possible, do so in an empirically satisfying way, but after receiving complaints, the administration told me to stop.) Would they, for example, report “we made love” “we had sex,” “we slept together,” “I slept with him,” “he fucked me”  “I got laid,” “I fucked him”? 

The responses and explanations were illuminating. “We made love” was dismissed because it wasn’t love. No one said “we had sex” because the phrase was too clinical to capture the excitement of the moment. “I got laid” was too passive to reflect their active participation in the act as was “he fucked me. “I fucked him” was too crude.  The plurality response was “I slept with him” or “we slept together.”  No loss of self is even hinted at.  

To be sure, this was a “night-after” characterization and respondents might have opted for a response that would help show their own control, not their victimization, to their friends. That is, the response might be less descriptive than “performative.”  We can’t know for sure.   

A more reliable answer may emerge from the following question:  Do women view themselves as being mostly dragged into unwanted and unenjoyable sex?  It is astonishing that MacKinnon seems not to have asked other women how they felt about the matter. You don’t have to be an ivory tower academic to have something useful to say about sex.  

Erica Jong’s provocatively titled anthology, “Sugar in My Bowl: Real Women Write about Real Sex” highlights the point and serves to shorten what otherwise might be a long treatise. The thirty-five well-known women writers of all ages speak candidly. Here is how author Fay Weldon concludes a short memoir on her own life, while perhaps speaking for many of the anthologized women: “The psychoanalyst told me that I suffered from low self-esteem, but my version is I was just born to like sex, and inherited the tendency from my father.” 

Writ larger, Jong’s reporters copulate willingly and happily not only with long-term partners who warm their hearts, those with whom in MacKinnon terms they find “mutual, joyous, enthusiastic, sexual interactions of intimate connection.”   They also sleep with men, willingly and for the most part happily, for reasons of lust, distraction, independence from family or others, companionship, experimentation, getting past the pressures of virginity, and simple gift-giving. (What about exercise?)  Especially to be noted, no contributor characterizes sex that she did not swoon over (my term) as debilitating. Nor do any of the women fix on reservations that they may have had. Like Edith Piaf, elles ne regrettent rien.  Far from being an existential threat, sex made them stronger, wiser, and happier.  

Beyond  ignoring women’s self-reported desires, as captured in Jong’s book, MacKinnon’s plan presents insurmountable evidentiary problems. If the woman does not resist sex in some way, how can a court enter into her mind to determine the extent of any reservations she might have?  Probing the man’s state of mind is no easier; the depth of the relationship has to be measured by his commitment as well the woman’s.  Should the law simply presume mens (men’s) rea?  

On another level, if only sex in a deep relationship is permitted, how can that intimacy develop when the road leading up to it is closed?  A journey of a thousand miles, after all, must begin with one single step.

What is likely fueling MacKinnon—as it does Peggy Ohrenstein, author of a recent book about sexuality in teenage girls—is personal humiliation over a perceived imbalance in received pleasure.  Women reportedly do not quicken, much less achieve orgasm, as often as men; women give oral sex more than they receive it.  However disquieting, this perception cannot be the basis of rape reform; pleasure measuring would require probing women electronically for sexual response, a technique that, according to well-known author Daniel Bergner, is currently in use in our sexual dysfunction labs. 

Studies show that women initiate sex at 1/3 the rate of men; does this not say something about comparative drives for sex and pleasure?  Not according  to  Bergner.  When social pressures are removed, he reports, and when women know that no one is judging them, they show themselves to be no less randy and aggressive than men.  “She’s got to have it” too.

A look at what takes place in the moments before sex helps confirm women’s sex-positive natures. Seeking to find out how women showed their consent to sex, whether physically, orally, or otherwise, professors Charlene Muehlenhard  and Lisa Hollabaugh found thirty years ago that a plurality of women did “nothing.”  They let it happen. The sexual world has since changed, to be sure, but to prefer to keep your sexual desire a little under cover, is probably still not tantamount to registering opposition or even indifference to it.   

A new movie about sex and college students depicts a sexual interaction in living color. On their first real date Olivia fellates Marcus because, she later reports, she likes him, and not out of any obligation. Olivia has emotional problems, but viewers get no sense that she is desperate or selling her self out. To be sure,  Olivia does not achieve orgasm, much less benefit from any requited act by Marcus. But this surely cannot be a touchstone of injury.  What if Marcus fondles Olivia’s genitals?  Would he have a case against her if she did not respond in kind? 

The pleasure of sex, more important, would seem to be in the giving and the taking, in both the empowerment and submission. Take oral sex, which shows both elements clearly at play:  causing your partner to squirm, squirt, and moan at your whim and, at the same time, subordinating yourself to him/her. Probably the best handle on the role of subordination in sex lies in the “I love you” moment, which surely means that declarers, perhaps weary of bearing the daily existential burdens, have committed their bodies and souls into the hands of the beloved.  Do we want to hold that proof of injury lies in the loving? 

None of the foregoing means that unwanted sex should never be criminalized.  There is plenty of that to be concerned with.  The point here is that sexual experience cannot be captured in a binary of exaltation and extinction of self.  

It is worth considering, nevertheless, whether there are more MacKinnonites than Jongites in America.  Fortunately, however, we need not probe the matter too deeply to resist the impulse to criminalize.  The important thing is that there are an appreciable number of Jongites who are not ready to jump on MacKinnon’s bandwagon. If these women’s desired partners can find no protection through consent, they will be less inclined to provide Jong and her associates with what they claim to want: good, if not great, sex.  That would seem to make MacKinnon’s project not feminist but anti-feminist. No one is telling MacKinnonites that they have to have sex.

What sense, in the end, can be made of MacKinnon’s piece?  Quite apart from a feeling of sadness about her cramped view of women’s sexuality when sex has been generally so gratifying, it seems clear that MacKinnon is not really interested in sexual justice, as most people might size that matter up.   Her treatment of prostitution is salient: the remedy for the prevalence of randy, even desperate, men is to prosecute them for perpetuating gender inequality.  As for the prostitutes, by contrast, they should be forgiven;  they have been led to their profession by the systemic abuse they have endured throughout their lives. In so holding, MacKinnon ignores a sizeable literature featuring prostitutes who protest that they like the lifestyle, the freedom, and the income of their profession.  

The foregoing further suggests that what motivates an argument such as McKinnon’s is as least as much taking men down as it is lifting women up, a strain of feminism that has surely tamped down  its successes.  It calls to mind at the same time an old feminist bumper sticker:   “Men have needs too but who really gives a damn?”

I do. I feel called to participate in the debate on rape reform; men, it need hardly be stressed, have a stake in this endeavor too, as we do on other “women’s” issues.  And yet, too often we are marginalized in debates. I speak from much experience here.  

Aware of my handicap, I contacted the Harvard Law & Policy Review in advance for permission to respond to MacKinnon, Asked to submit my CV, I did so and shortly thereafter was invited to contribute an essay. I submitted my piece almost a month later, but the journal rejected it.  It was OK to entertain MacKinnon’s call for revolution, but not mine for sticking with the status quo. Query: Is this piece not to the point?  Is it otherwise objectionable?  Most important, is it not clear that the feminist project has no chance of realization unless its leaders loosen their grip and invite men’s active, if critical, participation?      

-- Dan Subotnik

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