Legal Practice and Theories on Rape
"Man's structural capacity to rape and woman's corresponding structural vulnerability are as basic to the physiology of both our sexes as the primal act of sex itself. had it not been for this accident of biology, an accommodation requiring the locking together of two separate parts, penis and vagina, there would be neither copulation nor rape as we know it."
Susan Brownmiller
"Against Our will: Men Women and Rape" (1975)
"Penetration in these instances is neither the result of invitation nor a prelude to intensifications in "reciprocal incarnation." It is the result of cultural linkage between sex and aggression that is based not on an economy of nature but on the myth of the phallus, a larger than life cultural exaggeration of penile display. It is in consequence and acts of degradation on one hand and of unconditioned power on the other. In this fact lies a fundamental meaning of the conception of females as being "in the form of a hole."
Maxine Sheets-Johnstone
Chapter IV, Corporeal Types: Sex and Aggression
from "The Roots of Power: Animate Form and
Gendered Bodies" 1994
That "Rape" is horrific, and a cruel act, need not ever be debated. Or so it seems.
In the realm of law, it is quite conveniently "framed" as what most people probably think it ought to be, a penalized, prohibited act. It is a crime with penal consequences and arising liabilities for the perpetrator/s. Yet even by this very token, by "Rape" being a crime, that is a societal sanctioned (deliberate) act, does not even begin to say all there is really in terms of our beliefs about Rape (why it happens, how it happens, who we believe as "victims" and who we doubt).
If "Rape" is anything in law, (especially case law) it is neither simple nor straightforward. "Cases of Rape" in the Philippine Supreme Court Annotations are quite in a sense comparable to the myth and lore of ages, handing down the narratives of "Rapes" as we know and recognize them, as lawyers in the context of legal practice, as well as everyday, ordinary people who hear about rapes, talk about it, and even debate on it.
What Rape Is: Aggression? Sex? Violence?
I always ask my law students to read familiar rape cases they already read about in criminal law class and ask them to "recite" the case in class. Like "good" law students, they take this to mean "in law school fashion," and proceed going into the "format" of reciting on a case: FACTS/ISSUE/DECISION and RATIO DECIDENDI.
When law students (and lawyers) "read" rape cases, they read is it the way they would other "cases" (but somehow you occasionally get a few giggles and that is another discussion) and "report" on it. Of course reading rape cases resolved in the level of the Supreme Court only deals occasionally with the actual fact of rape as THE issue. By the time cases get to the Supreme Court (rape cases included), the "facts" have usually been settled at the level of the lower court and the legal issues before the highest court can be as mundane as the manner of proving age (presentation of original documents or proof of their destruction etc.) or even the application of penalties.
To be able to actually study what rape cases are about, I ask my students to open up and think about their own biases about rape. For instance, the simple question of what makes them doubt a charge of rape usually begins the discussion about many societal assumptions about it.
My students say that charges of rape are in doubt when there are signs the woman might have consented. Not surprisingly, these "signs" they identified are no different from the layperson's usual opinion. That a woman had a lot to drink or that she was out with the perpetrator or that the alleged rape took place in the morning are some of the answers I got.
Upon further probing, students also admit that a woman's sexual history (when it makes its way in court) really raises flags of doubt on the woman's "credibility."
When we discuss what Brownmiller points out to us as the "man's structural capacity" (to rape) and woman's "structural vulnerability," (as the foundation of both heterosexual sex and rape) I point out that while the point Brownmiller is raising seems to make all sense at the fundamental level, the way the statement is phrased tends to present these "biological and physiological" characteristics on the plane of where sex difference/gender has always been stuck: the binary. This in turn makes it seem like that rape is natural just as heterosexual intercourse is THE only natural sex.
It doesn't seem so at first but without much analysis and deconstruction, Brownmiller's statement may very well be also used as the basis for claiming rape is sex and sex is rape and both are natural occurrences in which free will has no part to play.
Sheets-Johnstone points out that there is a need to uncover the process of how signs and meanings came to be fixed, particularly in the case of "sex difference," and power. In so saying, in getting from point A (notions of rape and heterosexual intercourse as similar and as “sex”) to point B (heterosexual intercourse and rape as male power over female submission), how did we come to associate traits like dominance and violence as (legitimate acts of) POWER and how did we come to associate power with male/phallic symbols? Rape is indeed violence, and because of the way our beliefs about sex in society figure in, it is mostly about sexual violence, as we “know” it.
The responses I get from students are the same as what most people (either unfamiliar or doubtful of the wisdom of feminist analysis) usually come up with. Somehow, the motive or the rapists’ intentions are nary given any doubt nor the subject of interrogation. That men rape given an opportunity or with planning and pre-meditation, is not an area of doubt. Women, by their actions of drinking alcohol, going out with men, and dressing “provocatively” literally ASK for it without really needing to articulate such a request (for rape?)
That women are held responsible for men’s thoughts and actions is as Johnstone points out, so far removed from the original argument of rationalizing separate spheres between women and men. The same argument used against women in the age of suffragist movements (that men are THE rational beings, women are not capable of rational thought), seems to go out the window every time we talk about “sex” and the supposed “instincts” of the species!
Rape, Johnstone points out, is learned behavior. It is dominance/violence that consists of deliberate thought/action.
In fact, Johnstone is not at all divergent from Brownmiller’s having brought us to the point of questioning what were originally (predominantly) biological determinist views about rape. Biological and socio-biological views about rape pass of the “act” of rape as part of “instinctive” reproductive behavior even in the face of empirical data (across species) that “rape” (and similar animal behavior) is the LEAST effective in reproduction!
In the end, another point to ponder is how feminists are here (uncannily to most) actually regarding men in "higher esteem" than the rest of society usually does. If men NATURALLY rape and there is nothing to be done about it (as far as behavior goes), what recourse do we have? [The laser option?]
A wealth of feminist theories about rape has either highlighted rape as "violence" (not sex) or sexual violence, thereby not disputing the sexual nature of the assault.
On one (significant) level, theories from Brownmiller's to MacKinnon's bring us face to face with an undeniable truth: While rapes happen to all sorts of people (children, men, women), it is still the women who make up the staggering majority of those who do get raped. On the other hand, men do the raping, whether it is women, children or other men who get raped.
Yet in responding to rape cases (handling women's cases of rape), feminist legal practice has proven most inimical to women's well being and healing. No doubt, the same societal structures and institutions that "blame" the victim, or stereotype the victim and even limit the legitimacy of a rape claim under certain requisite standards f behavior or reputation, have wreaked untold havoc upon the emotional and psychological states of rape survivors.
When it comes down to the problem of getting back to living, "legal theory" regarding rape litigation needs to transcend the (still relevant but highly limited) structural approaches of jurisprudence setting or even countless legislative amendments.
Rape litigation and case and handling needs a feminist theory that will address the individual woman's sense of harm or loss. As I write this down I am aware that a lot of these things have unfortunately been part of the battle cry of a handful of erstwhile "conservative, liberal" and believe it or not, some "anarchist" feminists either rejecting feminist theories on patriarchy or simply disagreeing with structural/Marxist and socialist analysis.
Of course I do neither of those things but rather find a problem in placing what I have raised as an issue, in an antagonistic position to the positions of socialist and structural feminist analysis of "rape," in the context of patriarchy. Hopefully, a wealth of feminist thought on post modern analysis also offers a way out of a binary (either/or) debate on this.
My concern lies with the fact that one of the many problems in aiming for uniform standards in rape cases is that in the long line of cases by the Supreme Court, many of those standards have come to deal with the character of the credible rape victim (the chaste Filipina). In fact, one often cited Supreme Court ruling in rape acknowledges that rape victims react differently. Thus the question is, strategically speaking, if we are to set precedents in rape cases, what principles would be acceptable and which areas do we leave open for interpretation?
Of course for practicing lawyers who handle rape cases for women, it will always matter (on the purely personal and significantly human level) to the client that her lawyer believes her. Filing a case already means submitting oneself to the public/legal institutions for scrutiny. Even when a victim knows she has been raped, a case and a trial of the rape case in the end also literally means taking one's chances and risking being told by everybody else that she was not raped at all and yet at the same time, she had it coming.
Susan Brownmiller
"Against Our will: Men Women and Rape" (1975)
"Penetration in these instances is neither the result of invitation nor a prelude to intensifications in "reciprocal incarnation." It is the result of cultural linkage between sex and aggression that is based not on an economy of nature but on the myth of the phallus, a larger than life cultural exaggeration of penile display. It is in consequence and acts of degradation on one hand and of unconditioned power on the other. In this fact lies a fundamental meaning of the conception of females as being "in the form of a hole."
Maxine Sheets-Johnstone
Chapter IV, Corporeal Types: Sex and Aggression
from "The Roots of Power: Animate Form and
Gendered Bodies" 1994
That "Rape" is horrific, and a cruel act, need not ever be debated. Or so it seems.
In the realm of law, it is quite conveniently "framed" as what most people probably think it ought to be, a penalized, prohibited act. It is a crime with penal consequences and arising liabilities for the perpetrator/s. Yet even by this very token, by "Rape" being a crime, that is a societal sanctioned (deliberate) act, does not even begin to say all there is really in terms of our beliefs about Rape (why it happens, how it happens, who we believe as "victims" and who we doubt).
If "Rape" is anything in law, (especially case law) it is neither simple nor straightforward. "Cases of Rape" in the Philippine Supreme Court Annotations are quite in a sense comparable to the myth and lore of ages, handing down the narratives of "Rapes" as we know and recognize them, as lawyers in the context of legal practice, as well as everyday, ordinary people who hear about rapes, talk about it, and even debate on it.
What Rape Is: Aggression? Sex? Violence?
I always ask my law students to read familiar rape cases they already read about in criminal law class and ask them to "recite" the case in class. Like "good" law students, they take this to mean "in law school fashion," and proceed going into the "format" of reciting on a case: FACTS/ISSUE/DECISION and RATIO DECIDENDI.
When law students (and lawyers) "read" rape cases, they read is it the way they would other "cases" (but somehow you occasionally get a few giggles and that is another discussion) and "report" on it. Of course reading rape cases resolved in the level of the Supreme Court only deals occasionally with the actual fact of rape as THE issue. By the time cases get to the Supreme Court (rape cases included), the "facts" have usually been settled at the level of the lower court and the legal issues before the highest court can be as mundane as the manner of proving age (presentation of original documents or proof of their destruction etc.) or even the application of penalties.
To be able to actually study what rape cases are about, I ask my students to open up and think about their own biases about rape. For instance, the simple question of what makes them doubt a charge of rape usually begins the discussion about many societal assumptions about it.
My students say that charges of rape are in doubt when there are signs the woman might have consented. Not surprisingly, these "signs" they identified are no different from the layperson's usual opinion. That a woman had a lot to drink or that she was out with the perpetrator or that the alleged rape took place in the morning are some of the answers I got.
Upon further probing, students also admit that a woman's sexual history (when it makes its way in court) really raises flags of doubt on the woman's "credibility."
When we discuss what Brownmiller points out to us as the "man's structural capacity" (to rape) and woman's "structural vulnerability," (as the foundation of both heterosexual sex and rape) I point out that while the point Brownmiller is raising seems to make all sense at the fundamental level, the way the statement is phrased tends to present these "biological and physiological" characteristics on the plane of where sex difference/gender has always been stuck: the binary. This in turn makes it seem like that rape is natural just as heterosexual intercourse is THE only natural sex.
It doesn't seem so at first but without much analysis and deconstruction, Brownmiller's statement may very well be also used as the basis for claiming rape is sex and sex is rape and both are natural occurrences in which free will has no part to play.
Sheets-Johnstone points out that there is a need to uncover the process of how signs and meanings came to be fixed, particularly in the case of "sex difference," and power. In so saying, in getting from point A (notions of rape and heterosexual intercourse as similar and as “sex”) to point B (heterosexual intercourse and rape as male power over female submission), how did we come to associate traits like dominance and violence as (legitimate acts of) POWER and how did we come to associate power with male/phallic symbols? Rape is indeed violence, and because of the way our beliefs about sex in society figure in, it is mostly about sexual violence, as we “know” it.
The responses I get from students are the same as what most people (either unfamiliar or doubtful of the wisdom of feminist analysis) usually come up with. Somehow, the motive or the rapists’ intentions are nary given any doubt nor the subject of interrogation. That men rape given an opportunity or with planning and pre-meditation, is not an area of doubt. Women, by their actions of drinking alcohol, going out with men, and dressing “provocatively” literally ASK for it without really needing to articulate such a request (for rape?)
That women are held responsible for men’s thoughts and actions is as Johnstone points out, so far removed from the original argument of rationalizing separate spheres between women and men. The same argument used against women in the age of suffragist movements (that men are THE rational beings, women are not capable of rational thought), seems to go out the window every time we talk about “sex” and the supposed “instincts” of the species!
Rape, Johnstone points out, is learned behavior. It is dominance/violence that consists of deliberate thought/action.
In fact, Johnstone is not at all divergent from Brownmiller’s having brought us to the point of questioning what were originally (predominantly) biological determinist views about rape. Biological and socio-biological views about rape pass of the “act” of rape as part of “instinctive” reproductive behavior even in the face of empirical data (across species) that “rape” (and similar animal behavior) is the LEAST effective in reproduction!
In the end, another point to ponder is how feminists are here (uncannily to most) actually regarding men in "higher esteem" than the rest of society usually does. If men NATURALLY rape and there is nothing to be done about it (as far as behavior goes), what recourse do we have? [The laser option?]
A wealth of feminist theories about rape has either highlighted rape as "violence" (not sex) or sexual violence, thereby not disputing the sexual nature of the assault.
On one (significant) level, theories from Brownmiller's to MacKinnon's bring us face to face with an undeniable truth: While rapes happen to all sorts of people (children, men, women), it is still the women who make up the staggering majority of those who do get raped. On the other hand, men do the raping, whether it is women, children or other men who get raped.
Yet in responding to rape cases (handling women's cases of rape), feminist legal practice has proven most inimical to women's well being and healing. No doubt, the same societal structures and institutions that "blame" the victim, or stereotype the victim and even limit the legitimacy of a rape claim under certain requisite standards f behavior or reputation, have wreaked untold havoc upon the emotional and psychological states of rape survivors.
When it comes down to the problem of getting back to living, "legal theory" regarding rape litigation needs to transcend the (still relevant but highly limited) structural approaches of jurisprudence setting or even countless legislative amendments.
Rape litigation and case and handling needs a feminist theory that will address the individual woman's sense of harm or loss. As I write this down I am aware that a lot of these things have unfortunately been part of the battle cry of a handful of erstwhile "conservative, liberal" and believe it or not, some "anarchist" feminists either rejecting feminist theories on patriarchy or simply disagreeing with structural/Marxist and socialist analysis.
Of course I do neither of those things but rather find a problem in placing what I have raised as an issue, in an antagonistic position to the positions of socialist and structural feminist analysis of "rape," in the context of patriarchy. Hopefully, a wealth of feminist thought on post modern analysis also offers a way out of a binary (either/or) debate on this.
My concern lies with the fact that one of the many problems in aiming for uniform standards in rape cases is that in the long line of cases by the Supreme Court, many of those standards have come to deal with the character of the credible rape victim (the chaste Filipina). In fact, one often cited Supreme Court ruling in rape acknowledges that rape victims react differently. Thus the question is, strategically speaking, if we are to set precedents in rape cases, what principles would be acceptable and which areas do we leave open for interpretation?
Of course for practicing lawyers who handle rape cases for women, it will always matter (on the purely personal and significantly human level) to the client that her lawyer believes her. Filing a case already means submitting oneself to the public/legal institutions for scrutiny. Even when a victim knows she has been raped, a case and a trial of the rape case in the end also literally means taking one's chances and risking being told by everybody else that she was not raped at all and yet at the same time, she had it coming.
posted by Carolina S. Ruiz Austria | 10:22 AM
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