At Critical Legal Thinking, Narnia Bohler-Muller takes issue with the narrow legalism of the often ‘surreal’ commentaries on the Assange controversy. In amongst the denunciation and counter-denunciation she detects an undercurrent of disciplinary power. On this account, the apparently ‘very broad’ rape laws of Sweden, like efforts in South Africa to force HIV tests on rape suspects, enforce dichotomies under the guise of legal formality, and so cast the accused as impurities of the social body:

The argument is that the law is not an appropriate instrument to deal with matters of sexual intimacy as general principles can never do justice to the particularity of the situation and the nuances of sexual game-playing. Such is the forceful and violent nature of The Law. To depend on legal regulation to resolve all the complexities and quirks of human relations is a dangerous precedent and enforces the dualisms of guilt/innocence and normal/perverted. It is such dualisms that serve to re-produce Foucauldian ‘docile bodies’ that do not threaten or resist the status quo…

…The problem is that in such a way harmless conduct may be punished merely because we do not approve of it. If Assange is HIV negative, which one assumes he is, and neither of the complaints fall pregnant, then his failure to wear a condom caused no harm. Or are we now choosing to punish potential harm or the risk of harm? Or, perhaps, punishing the failure to be a considerate lover, or the narcissism and promiscuity of a man who fucks helpless women and then leaves?

This ends up turning sexual assault into a form of dissent, a refusal “to express comfort with any kind of subservience to Authority“. As before, Assange is not really the issue, merely a bystander and stand-in. But, amidst her caution against law as a substitute for political critique and her rejection of marginalising discourse (points well-taken), Bohler-Muller’s use of him to mobilise broader arguments about a Foucauldian analytics of rape raises some stark problems.

First, feminists like Jaclyn Friedman are not involved in a legalistic fallacy. Their emphasis has been overwhelmingly on the implications of the language used to defend Assange and the rape myths and apologetics that have been propagated as part of that. Bohler-Muller’s characterisation of the charges is telling in this light, since feminists are simply not arguing that “the failure to be a considerate lover” should be a criminal offence, still less that we should empower police officers to enforce ‘consent-plus’ (apparently the idea that “if sex takes place outside of a loving and intimate relationship, there is a strong indication that consent is lacking”). To speak of these particular charges as if they were merely a question of impolite sex and not ‘rape-rape’ is already to prejudge the issue and to misunderstand it as specifically about Assange, rather than about general rape culture and its prevalence.

Feminists have pointed out that holding someone down or penetrating them while they are asleep qualifies rather easily as non-consensual sex. They have suggested that having attended gender studies courses does not make an accuser untrustworthy. They have roundly and frequently agreed that the charges against Assange are suspicious and likely politically-motivated. And then they have said that this suspicion should not lead to the regurgitation of tropes about the perfidity of womankind or the agendas of man-hating lesbots.

Those are relevant points that have everything to do with the politics of rape, and very little to do with a fetishistic attitude to the statute book. In more general terms, feminists do agitate for higher conviction rates and frequently criticise the current state of evidence-gathering, classification and prosecution, as well as existent social prejudices towards rape victims. In doing so, they discuss the legal system and its manifest failings. But these are arguments about the reform of the law based on feminist political and moral positions, not a parroting of subjectivities created by it.

Which isn’t to say that there aren’t issues around feminism and law to be explored and critiqued, not least whether campaigning for a more successful pattern of prosecution is the best way to end rape (dependent as that argument is on a deterrent model, perhaps to the detriment of attempts to transform social norms in a more systematic way). But these are questions of strategy and politics, and feminists will take different positions. What doesn’t seem sustainable is to invoke the melee around Assange to indict some feminists as faux-‘Law-Doers’ who “work within an impersonal system of suffocating ‘normalisation’ that aims to bring about a subtle but effective imposition of uniform behaviour on ‘law-abiding’, subservient individuals“.

Second, it is not at all clear which substantive position on rape we might recruit Foucault for. Bohler-Muller depends primarily on his arguments regarding the tyranny of morality. In itself that rather compromises the comparison with rape, since it cannot be seriously argued that the hegemonic attitude to rape in our societies is somehow a feminist one. But Foucault’s own statements suggest that the allegations against Assange would very much still have counted, both ethically and legally, as crimes. or wrongs. In a debate on the functions of psychiatry and the uses of ‘trauma’, what Foucault proposed was that “rape belongs to the realm of physical violence and must simply be treated as such“. And speaking in 1978 on the homosexual movement and the age of consent in France, he developed a rather relevant distinction:

First, there is the question of sexual choice that must be faced. I say freedom of sexual choice and not freedom of sexual acts because there are sexual acts like rape which should not be permitted whether they involve a man and a women or two men. I don’t think we should have as our objective some sort of absolute freedom or total liberty of sexual action.

The question of what counts as a disciplinary power and what as an emancipatory one is as blurry here as elsewhere. But it is at least arguable that Foucault’s agenda was to combat the proliferation of legal codes as instruments of a disciplining morality and, as he put it in the discussion of rape as physical assault, to contest the ‘preponderant place’ given to sexual organs in moral discourse. This would reclassify rape as a crime, but not obliterate it or confine it to some variation on  ‘sexual game-playing’. Consent, it seems, still rather constituted a political-ethical limit.

Read this way, Foucault’s project is entirely compatible with at least some forms of feminist anti-rape politics. For Sharon Marcus, identifying and undoing the grammar of violence in rape scripts (those implicit understandings of appropriately masculine and feminine responses to a rape situation) should be central to self-defence against rape culture. Break the role-identification (the disciplinary power) and you are fighting rape.

More than a decade ago, Ann Cahill proposed a different Foucauldian reading, one which suggested that really challenging socio-cultural discourses of the feminine and masculine meant going beyond a view of rape as just like any other assault. Instead, in the properly Foucauldian way, we should be paying attention to the ways in which rape, and the threat of rape, extend far beyond the localised effects visible to the law and help constitute female bodies as incitements and innocents. Doing so opens up a discursive space for bodies which fight back.

Catharine MacKinnon once responded to the idea that rape was about power and not sex with a disarming question. If it’s not about sex, why didn’t he just punch her in the face? Making rape equivalent to a punch in the face, whether in law or in moral discourse, recoils from its legacies and their impact on our forms of thought and action. And so it risks ignoring them. The alternative is not simply to act out the roles assigned us by an imagined Law, but to engage law as a practice, a tool and a site of contestation.

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UPDATE (14 Jan): Now also cross-posted at Critical Legal Thinking.