Redefining rape

[Jux]

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 redefining rape in laww*. 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.

This seems pertinent, I've not had a chance to read it yet

twitter.com/JeanHatchet/status/1598571612307017728?s=20&t=KzdAj8RzUeXTwip9v5Ra7w

There has to be some serious debate and discussion about sexual coercion; it's obvious that 'consent' is an inadequate standard. I have no idea how those proposed changes in the law would work but just starting the debate is important.

But RACHEL MCKINNON. Jesus fuck, that can't be good. And why is any TRA supporting this? Even this brief description shows it is clearly incompatible with their 'sex work is work' doctrine.

How would that actually work in practice though? I don't see how using that definition would help you to prove rape. Consent/lack off consent is always difficult to prove because it can come down to he said/she said but at least its something concrete -and it can be backed up by physical evidence etc etc. Basing it on a power dynamic sounds really difficult because who is judging those "multiple inequalities of power". I can see that massively backfiring if a rape victim is considered higher on the ever changing power hierarchy than the rapist.
Of course, teaching young men and women that the sex they are having should be "willing, wanted, respectful and mutual" is an excellent plan.

And why is any TRA supporting this? Even this brief description shows it is clearly incompatible with their 'sex work is work' doctrine.

No. Because a sex worker may well be very empowered by their work. Especially if they are Cis, white, heterosexual or benefitting from "pretty privilege aka the privilege of being in a body our western media view sees as the beauty standard". Whereas the client who attacks her might well be suffering from: a disability, mental illness, sex addiction, stigma due to his sexual proclvities, social marginalisation due to being a creepy wierdo .
"Therefore m'lud my client cannot be guilty of the crimes he was accused of. In fact I argue that it is the "so called victim" who is really guilty using her privileged position to put my client in a position where he/she/they had no choice but to have sex with her. Case closed, 50 lashes to the rape victim for being a wicked temptress."

Not Rachel McKinnon but longstanding feminist activist and legal scholar, Professor Catharine A MacKinnon as well as Mandu Reid, leader of the Women’s Equality Party

As the linked article says I'd be very worried that this is a way of saying that powerless transwomen cannot rape privileged women.

Does the definition still include penises? Or is that disappearing at the same time as an attempt to rename the trans penis as a very big clitoris?

And also, actually it could affect men too. Let's say a man is raped by another man and the victim happens to be straight, Does that automatically put him in a privileged position compared to his attacker? In many situations a straight man (or straight women) does have more privilege. But in a case of sexual assault?* And the quote directly refers to sexual orientation as an example.

*Actually I can think of examples where being gay might make it harder to report/not be believed. But that's not really the point here.

Or staying, even?

Or saying 'person' and lot if confusing stuff that just muddies the water, creates doubt and loopholes for lawyers?

So many ways to obfuscate.

There’s a lot of whataboutery in the paper, but her thesis statement is:

My point is, when a sexual interaction is equal, consent is not needed and does not occur because there is no transgression to be redeemed. Call it sex. And when a sexual incursion is not equal, no amount of consent makes it equal, hence redeems it from being violative. Call it sexual assault.

She is mostly arguing too that sex can never be equal between a man and a woman. Or white and non-white. Or upper class and lower class. Or upper caste and lower caste. Or older and younger. Or punter and prostitute. She argues that sex should be categorically outlawed between unequal parties the same as it is for adults and underage teens.

I think her paper is batshit tbh. She’s cherry picked US laws too.

There has to be some serious debate and discussion about sexual coercion; it's obvious that 'consent' is an inadequate standard.

Is it? That's not obvious to me.

Rape is just rape, it was never intended to be a catch-all term for "everything people do sexually that is morally problematic". Even less for "everything people do sexually within the context of societal power inequalities".

The problem with defining rape as "sex that is influenced by cultural inequalities of power" or similar, is that it pretends there's some kind of sex - or even some area of human life anywhere - that isn't.

And also that power is rarely one-dimensional or one-directional so lawyers (who are paid to be good at finding imaginative ways to argue things) would have a field day arguing which power issue is stronger, more heinous or more relevant to the sex at hand, with all kinds of potential unintended consequences.

So if I have consensual sex with someone who has more power than me (because they are a man, because they are richer whatever) that means it is rape? And if I have sex I don't want with someone who has the same or less power than me (according to whatever mathematical formula we use to calculate that) it can't be rape. Batshit!
And ten years ago I would have considered the take above ridiculously pedantic and paranoid. But after the nonsense of the last few years I am automatically sceptical.

Consent (or apparent consent) might not be enough.

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

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 was in a conversation about increasing prosecution rates. We were pondering 'reckless inattention to consent' to try and address those cases where men 'accidentally' have sex with someone who hasn't consented, but mysteriously failed to realise the lack of consent.

But anything with Rachel McKinnon involved is bad news. Unless leopards have got stripy when I wasn't looking.

I notice gender identity is on there. I did see something stating a TW could never be accused of raping someone as they are more marginalised and therefore as this cuckoo seems to argue, it would never be rape as rape is a crime of power.

My point is, when a sexual interaction is equal, consent is not needed and does not occur because there is no transgression to be redeemed. Call it sex.

The likelihood of me meeting my perfectly equal doppelgänger down to the same sex, race, birth day, class, income and disabilities is let’s say 1 in a billion. But if I meet such a woman, apparently I can just pounce on her and have sex without it being considered rape? I don’t see how consent is ever not needed.

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

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.

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

Yes. Consent is essential.

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.

(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.)

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.

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".

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