Page 2 | Redefining rape

Jux · 2022-12-02T14:56:23+00:00

Right to Equality . org are hoping to redefine rape in law. This, afaics, is the specific bit. *"**World-renowned feminist legal scholar and advisor to Right to Equality, Professor Catharine A. MacKinnon adopts a transformative approach to* [[https://www.law.ox.ac.uk/sites/default/files/2022-11/MacKinnonRapeRedefined.pdf redefining rape in law]]w**. MacKinnon argues that consent is an intrinsically unequal concept and should be eliminated from the law of sexual assault. To redefine rape as the crime of inequality that it is, the prohibited act should centre instead on a concept of force that, beyond physical force, incorporates multiple inequalities of power* --* such as age, race, disability, celebrity, caste, sexual orientation, gender identity, and sex/gender*-- * when used to coerce a sexual interaction. Instead of focusing on what he did to her or what she ‘allowed’ him to do to her body, the court should scrutinise the context in which sex happened: Was the sex willing, wanted, respectful and mutual?"* I'm interested in what you think of this. I should also say that this org includes Jo Maugham and Rachel McKinnon.

tiredofpplcoveringtheirarses · 03/12/2022 07:37

Sallysue82 · 02/12/2022 17:06

From the telegraph June 2021.
An Oxfam staff training document says “privileged white women” are supporting the root causes of sexual violence by wanting "bad men" imprisoned.

In the wake of sex scandals that have rocked the charity, Oxfam has produced guidance which states that: “Mainstream feminism centres on privileged white women and demands that ‘bad men’ be fired or imprisoned”.

Accompanied by a cartoon of a crying white woman, it adds that this “legitimises criminal punishment, harming black and other marginalised people”.

It advises staff to read a controversial book which concludes: “Mainstream feminism is supporting, not undoing, the root causes of sexual violence.”

Oxfam said that the training was voluntary, and the views are not presented as its own but designed to help staff understand the issues.

However, the charity was warned on Wednesday night that the document, compiled by its LGBT network and seen by The Telegraph, could breach equality laws as it suggests reporting rape is "contemptible".

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Wtf?!

ResisterRex · 03/12/2022 07:21

I agree with pondering and porky. If the GRA has shown us anything, it's that hard cases make bad law.

Thanks for spotting the date Onnabugeisha. The reason I was curious is that a while ago, MacKinnon was - so I thought - sensible. If this is 2016 then that would make sense, time-wise.

This is a highly dangerous, unevidenced and barking mad idea. Our Sexual Offences Act doesn't need to be changed.

Ponkyandthebrain · 03/12/2022 07:15

Ponderingwindow · 03/12/2022 04:43

There is a kernel of truth here. There are certain circumstances where the power imbalance is so extreme that consent can not be accepted. Prisoner and guard, student and teacher, adult and teenager. We can look at these situations and say that even if both parties are adults and happy to participate, the onus is on the party with more power to stop the situation from proceeding. The power imbalance is simply too great to trust that consent is truly freely given.

you can’t use that to redefine rape entirely. Just because you can easily see the obvious cases where consent can’t exist, doesn’t mean that you can create a formula to decide exactly when every matchup is balanced.

The first two of those are already crimes. The last is an issue but I don’t think it’s properly resolved this. It would just become a farcical argument in court about who is powerful instead of whether the suspect committed rape

Ponkyandthebrain · 03/12/2022 07:11

I just think this is a nightmare in practice. You can already prosecute rape (and I have) where there is consent that is coerced. It’s not true consent. The suspect has to reasonably believe the victim consents and if you are bullying, abusing and even threatening someone you don’t really believe they’re overcome with lust for you do you. This believe is on objective belief too. The jury have to believe it. The suspect can’t say ‘well I know it’s an unreasonable belief but I believed it’ that’s not the rules for this crime.

Ponderingwindow · 03/12/2022 04:43

There is a kernel of truth here. There are certain circumstances where the power imbalance is so extreme that consent can not be accepted. Prisoner and guard, student and teacher, adult and teenager. We can look at these situations and say that even if both parties are adults and happy to participate, the onus is on the party with more power to stop the situation from proceeding. The power imbalance is simply too great to trust that consent is truly freely given.

you can’t use that to redefine rape entirely. Just because you can easily see the obvious cases where consent can’t exist, doesn’t mean that you can create a formula to decide exactly when every matchup is balanced.

Itisbetter · 03/12/2022 02:46

It sounds a bit like the most vulnerable people in society might be able to force sex on whoever they want.

IcakethereforeIam · 03/12/2022 02:38

Someone archived it

archive.ph/lyFlc

MangyInseam · 03/12/2022 02:34

This sounds like it is saying that any sexual encounter that is seen as in some way "unequal" would become possible rape.

I realize of course that wouldn't be the intent, but I'm not sure good intentions matter in terms of making good laws.

IcakethereforeIam · 02/12/2022 23:18

The medium account I posted a link to earlier has been suspended! I didn't get a chance to read it.

The writer is going to try to repost it, so I'll keep an eye out.

Onnabugeisha · 02/12/2022 22:20

@ResisterRex
it says 2016 in the top left corner of every other page, so think that is the year.
I agree she cherry picked US law, ignoring the states where forcing someone to penetrate you is also considered rape (woman raping a man).

ResisterRex · 02/12/2022 21:21

What's the date on the Catharine MacKinnon paper? I couldn't see it. I know a number of US states have what some UK academics would call more "progressive" rape laws.

Guess how? They don't use the term "penis" or "he":

https://newyork.public.law/laws/n.y.penalllaw partt3 titleeh articlee130

https://newyork.public.law/laws/n.y.penalllaw sectionn130.35

"§ 130.35 Rape in the first degree. A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:
1.
By forcible compulsion; or
2.
Who is incapable of consent by reason of being physically helpless; or
3.
Who is less than eleven years old; or
4.
Who is less than thirteen years old and the actor is eighteen years old or more. Rape in the first degree is a class B felony."

This project is one to be enormously wary of. We do not want the Sexual Offences Act changed.

BellaAmorosa · 02/12/2022 20:41

RedToothBrush · 02/12/2022 16:47

Is this so woman can be convicted of rape because not enough without penises are?

I think so.

Signalbox · 02/12/2022 20:40

McKinnon from around 5 years ago...

I have always seen discrimination against trans people as a form of sex-based discrimination. I’ve taught it that way since 1977; it can be found throughout my casebook Sex Equality (2007). One of my earliest clients was a transwoman who was imprisoned in male prison. Her situation was absolutely horrific. My views on this have not changed one iota over time, although they have become more informed as more trans people have written, spoken out, and more discussion has been engaged, and as I have met more and more out trans people (mostly transwomen) all over the world.

My basic feeling, with Simone de Beauvoir, is “one is not born, one rather becomes a woman.” How one becomes a woman is not, I think, our job to police, even as everything about that process is worth inquiry and detailed understanding. Having been surrounded by born women who do not identify as women particularly, and reject feminism as having nothing to do with them, it has been inspiring to encounter transwomen who do identify as women, actively oppose violence against women including prostitution (in which those who engage have little choice), and are strong feminists. “Woman” can be, in part, a political identification. To be a woman, one does have to live women’s status. Transwomen are living it, and in my experience bring a valuable perspective on it as well.

www.transadvocate.com/sex-gender-and-sexuality-the-transadvocate-interviews-catharine-a-mackinnon_n_15037.htm

Signalbox · 02/12/2022 20:20

It's pretty opaque language isn't it? Makes me suspicious.

Thelnebriati · 02/12/2022 19:31

I googled and its surname confusion. The author appears to be a female academic.

TastefulRainbowUnicorn · 02/12/2022 17:12

Also, is the cyclepath involved or is it just surname confusion? 🗣 previously claimed 🗣 was raped by 🗣 ex wife, I think the rationale was that 🗣 had sex 🗣 didn't enjoy while not in woman costume.

Onnabugeisha · 02/12/2022 17:07

namitynamechange · 02/12/2022 17:03

There are definately cases where the power imbalance is so unequal consent can't be freely given (eg a prisoner and prison guards, woman in brothel who can't speak English and seedy man who has booked her through a pimp etc). And other cases where the power imbalance doesn't equal rape but might equal professional misconduct (e.g. adult student and teacher).
But we know about those already. Proposing that any power imbalance makes sex rape regardless of consent is something else.

Exactly, consent given under duress is well recognised to not be actual consent.

Sallysue82 · 02/12/2022 17:06

ControversialOpening · 02/12/2022 16:30

i don’t think I can be understanding this properly. To me it seems to be suggesting something like this:

Rich, white, middle-class, educated, middle-aged, employed women = 6 areas of privilege vs 1 area of disadvantage.
Poor, black, working-class, uneducated, young, jobless man = 6 areas of disadvantage vs 1 area of privilege.
Therefore it would not be rape if the man had sex with the woman without consent, as she has so much more privilege than him.

That cannot be right, but I can’t see how else to read it. Can someone explain to me please?

From the telegraph June 2021.
An Oxfam staff training document says “privileged white women” are supporting the root causes of sexual violence by wanting "bad men" imprisoned.

In the wake of sex scandals that have rocked the charity, Oxfam has produced guidance which states that: “Mainstream feminism centres on privileged white women and demands that ‘bad men’ be fired or imprisoned”.

Accompanied by a cartoon of a crying white woman, it adds that this “legitimises criminal punishment, harming black and other marginalised people”.

It advises staff to read a controversial book which concludes: “Mainstream feminism is supporting, not undoing, the root causes of sexual violence.”

Oxfam said that the training was voluntary, and the views are not presented as its own but designed to help staff understand the issues.

However, the charity was warned on Wednesday night that the document, compiled by its LGBT network and seen by The Telegraph, could breach equality laws as it suggests reporting rape is "contemptible".

namitynamechange · 02/12/2022 17:03

There are definately cases where the power imbalance is so unequal consent can't be freely given (eg a prisoner and prison guards, woman in brothel who can't speak English and seedy man who has booked her through a pimp etc). And other cases where the power imbalance doesn't equal rape but might equal professional misconduct (e.g. adult student and teacher).
But we know about those already. Proposing that any power imbalance makes sex rape regardless of consent is something else.

TastefulRainbowUnicorn · 02/12/2022 17:03

(But it seems like the conversation these people want to have isn't the one I hoped for. I was hoping it was about sex work and sexual exploitation, because of Catherine McKinnon, and despite the unpromising language. I hadn't read the article upthread.)

TastefulRainbowUnicorn · 02/12/2022 16:58

Is it? That's not obvious to me.

I'm thinking of all the cases where it is claimed the victim consented to, effectively, her own murder. I 'm also thinking about pimps and johns, who should be prosecuted. There are also probably some edge cases but those examples aren't even edge cases and consent shouldn't be a defence.

Onnabugeisha · 02/12/2022 16:50

ErrolTheDragon · 02/12/2022 16:27

Consent (or apparent consent) might not be enough.

But sex without consent is rape regardless of the relative 'privilege' of the victim and perpetrator.

Yes. Consent is essential.

Happylittlechicken · 02/12/2022 16:50

RedToothBrush · 02/12/2022 16:47

Is this so woman can be convicted of rape because not enough without penises are?

Yes. It also explains the push to define TW as the most marginalised and vulnerable group. They could then claim any sex was non consensual as they are at the bottom of the power structure, but also they could not rape anyone for the sane reason. Call me cynical but, it smells very rotten to me

Onnabugeisha · 02/12/2022 16:49

ControversialOpening · 02/12/2022 16:30

i don’t think I can be understanding this properly. To me it seems to be suggesting something like this:

Rich, white, middle-class, educated, middle-aged, employed women = 6 areas of privilege vs 1 area of disadvantage.
Poor, black, working-class, uneducated, young, jobless man = 6 areas of disadvantage vs 1 area of privilege.
Therefore it would not be rape if the man had sex with the woman without consent, as she has so much more privilege than him.

That cannot be right, but I can’t see how else to read it. Can someone explain to me please?

I think by her paper, the woman might be sexually assaulting the man? No matter how much he has expressed consent, its still unequal sex.

RedToothBrush · 02/12/2022 16:47

Is this so woman can be convicted of rape because not enough without penises are?