Are Women Human?: And Other International Dialogues by Catharine A. MacKinnon

Author:Catharine A. MacKinnon
Language: eng
Format: mobi, epub
Tags: Human Rights, Social Science, Political Science, Women's Rights, International, Law, Women's Studies
ISBN: 9780674025554
Publisher: Harvard University Press
Published: 2006-01-02T06:00:00+00:00

part four

on the cutting edge

23

Defining Rape Internationally

A Comment on Akayesu

Each time a rape law is created or applied, or a rape case is tried, communities rethink what rape is. Buried contextual and experiential presumptions about the forms and prevalence of force in sexual interactions, and the pertinence and modes of expression of desire, shape determinations of law and fact and public consciousness. The degree to which the actualities of raping and being raped are embodied in law tilt ease of proof to one side or the other and contribute to determining outcomes, which in turn affect the landscape of expectations, emotions, and rituals in sexual relations, both everyday and in situations of recognized group conflict.

Illegal rape is commonly defined to revolve around force and unwantedness in sexual intercourse.1 Many jurisdictions—by statute, interpretation, or in application—tend to emphasize either compulsion or lack of agreement. Some weight one to the relative exclusion of the other; some permit one or the other alternately or simultaneously.2 Many require proof of both.3 In life, the realities of compulsion and lack of accord in sexual interactions overlap and converge. Force abrogates autonomy just as denial of self-determination is coercive. Although the determinants of desire and techniques of compulsion (and the mutual interactions of the two) are far from simple, anyone who has sex without wanting to was compelled by something, just as someone who had sex they wanted was not forced in the conventional sense. Yet conceptually speaking, emphasis on noncon-sent as definitive of rape sees the crime fundamentally as a deprivation of sexual freedom, a denial of individual self-acting.4 Emphasis on coercion as definitive, on the other hand, sees rape fundamentally as a crime of inequality, whether of physical or other force, status, or relation.5

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