By including what violates women under civil and human rights law, the meaning of “citizen” and “human” begins to have a woman’s face. As women’s actual conditions are recognized as inhuman, those conditions are being changed by requiring that they meet a standard of citizenship and humanity that previously did not apply because they were women. In other words, women both change the standard as we come under it and change the reality it governs by having it applied to us. This democratic process describes not only the common law when it works but also a cardinal tenet of feminist analysis: women are entitled to access to things as they are and also to change them into something worth our having.
Thus women are transforming the definition of equality not by making ourselves the same as men, entitled to violate and silence, or by reifying women’s so-called differences, but by insisting that equal citizenship must encompass what women need to be human, including a right not be sexually violated and silenced. This was done in the Bosnian case by recognizing ethnic particularity, not by denying it. Adapting the words of the philosopher Richard Rorty, we are making the word “woman” a “name of a way of being human.” We are challenging and changing the process of knowing and the practice of power at the same time.
-Catharine MacKinnon, “Postmodernism and Human Rights,” Are Women Human?
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. Continue reading →