To the extent your reality does not fit the law’s picture, your rape is not illegal. The implications of this for everyday sex life are that any man who knows a woman of the same race can probably get away with raping her. The better he knows her, the more likely he is to get away with it. Married women in states that do not have a law against marital rape are the ultimate example…
What does all this mean for having no mean no? When no can legally mean yes, what does yes mean in everyday life? When rape passes legally as intercourse, what is sexual intimacy? The law of rape deeply affects sexual intimacy by making forced sex legally sex, not rape, every night. Every day, because women know this, they do not report rapes nine times out of ten. When a woman does report, the media have the legal right to print her name and picture, making her into everyday pornography…Many women, no matter how violated they were, do not call what happened to them rape if they do not think a court would agree with them. In this ultimate triumph of law over life, law tells women what happened to them and many of us believe it. When asked, “Have you ever been raped?” many women answer, “I don’t know.
…The realm in which women’s everyday life is lived, the setting for many of these daily atrocities, is termed “the private.” Law defines the private as where law is not, that into which law does not intrude, where no harm is done other than by law’s presence. In everyday life, the privacy is his….Wives are raped in private. Women’s labor is exploited in private. Equality is not guaranteed in private. Prostitution, when acts of sex occur out of public view, is often termed private….
Women in everyday life have no privacy in private. In private, women are objects of male subjectivity and male power. The private is that place where men can do whatever they want because women reside there. The consent that supposedly demarcates this private surrounds women and follows us wherever we go. Men seem to reside in public where laws against harm exist — real harm, harm to men and whoever has the privilege to be hurt like men — and follow them wherever they go. Having arranged the law against rape and battering and sexual abuse of children so virtually nothing is done about them, and having supported male power in the home as a virtual absolute, the law then proclaims its profoundest self-restraint, its guarantee of liberty where it matters most, in “the right to be left alone.” This home is the place Andrea Dworkin has described from battered women’s perspective as “that open grave where so many women lie waiting to die.” As a legal doctrine, privacy has become the affirmative triumph of the state’s abdication of women. Sanctified by the absolution of law, the private is the everyday domain of women in captivity, abandoned to their isolation and told it is what freedom really means.–Catharine A. MacKinnon, “Law in the Everyday Life of Women,” in Women’s Lives, Men’s Laws, Belknap Press of Harvard University Press, Cambridge, Massachusetts, 2005
In the same chapter from which I excerpted the above quote, MacKinnon makes the point that women in the United States have so far made at least one law: the law against sexual harassment. Before sexual harassment law, sexual harassment was simply everyday life for women, something men did to women with impunity. When women’s experiences of being sexually harassed were made the basis for a law against that harassment, life began to change for women. Men didn’t stop sexually harassing us, but there was a name for what they did now, and, as MacKinnon says, the experience had an “analysis that placed it within the collective reality of gender, a forum for controntation with some dignity and the possibility of relief. … Changing what could be done by law changed the way it felt to live through [sexual harassment] in life, and the status of women took a step from victim to citizen.”
In this same tradition of working for, advocating for, creating laws that work for women, that reflect our experiences as women — especially in domains heretofore protected (by men and for men’s benefit) under the aegis of male definitions of “privacy” — back to us, Deana Pollard Sacks blogged about “intentional sex torts” over at Feminist Law Professors last week. Sacks notes in her post that four states have now enacted laws which recognize “fraudulent inducement of sex” as rape: Alabama, California, Michigan and Tennessee. A Massachusetts attorney filed a similar bill in Massachusetts this past February which would recognize “stealing another’s sexual autonomy” as a crime:
Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person’s consent by the use of fraud, concealment, or artifice and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, `fraud’ or `artifice’ shall not be construed to mean a promise of future consideration.
Intentional sex tort laws would require fair disclosure for giving of consent to be recognized as valid, with issues of intent to offend and offensive contact factored in, as with battery. As Sacks says, “In a world filled with dangerous sexual diseases, it is particularly important to protect women’s rights to protect their own bodies, not just against physical violence, but against fraudulent inducement of sexual decisions and all of the dangerous consequences that can result from a lack of truly informed consent to sexual relations.”
Laws that recognize and punish theft of sexual autonomy (by, for example, lying about important things, like who someone is or whether he has STD’s, in order to get women to agree to have sex with him), name a theft most women have experienced as rape and, as with sexual harassment law, offer an analysis and recognition of our lived reality which could powerfully change it.
How likely laws are to bring about real change for women can often be gauged by men’s response to their proposal. Following are a few choice responses from male attorneys who blogged in response to Sacks’s post. They give us some idea how large is the boulder we might have to move up the mountain and how steep the mountain might be.
Geeklawyer had thought that feminism was a joke that after 25 years was confined to history and the odd nostalgic memory of decaying overweight women with sagging breasts and moustaches…
Apparently a bunch of strapon wearing bull-dyke feminist law professors are asserting that lying to a woman in order to give her the pleasure of one’s Pork Sword is rape. American professors are a breed with less intellectual credentials than one would accept in the UK. Across the pond ‘Professor’ is merely a job title rather than, as it is here, a recognition of intellectual prowess.
A commenter to Above the Law’s post about intentional sex torts offers a piece of his mind he really might should try to hold onto:
I find Professor Sack’s bigoted description of sexual dynamics disgusting. Why is it that men are depicted as sexual predators doing anything possible to “invade” a women’s bodies? And women are these bastions of sexual virtue knitting in the castle tower only trying to fend off attacks from the raving hordes below? Does she not realize that all human beings are sexual animals and will occassionally lie to get it?
Expanding tort law to cover dishonest sexual encounters is a horrifying proposition. We have to be left to be human — even if that means that some immoral, abhorrent, and even disgusting behavior will leak through the sieve of our legal system… For as long as we live and love, someone will lie about their feelings to someone else… I’mnot simply arguing that boys will be boys. I am arguing that this is the yin to the yang of love, passion and ecstasy.
Every time you meet someone or f*** someone you are taking a risk. That’s part of the thrill!
Yeah, coming up positive for HPV is just so damned hawt and sexxxeeeeee.
Well, it should be interesting. Thanks to Ann Bartow for the distant early warning and especially for introducing me to Deana Pollard Sacks. I’m looking forward to reading everything she writes and passing it along.