Definiton of Rape and Consent under Catherine Mackinnon's Reform

Why is rape inordinately prevalent in current society? From 2015 to 2018, the number of instances of sexual assault and rape increased by 70.1%, a climb from 204,000 to 347,000 cases in the United States alone (Morgan. R, Oudekerk. B, 2018, p. 1-2). Yet, when contrasted to statistics of convicted rape cases within the US, there are visible discrepancies between these two values. For every 1000 sexual assaults, on average only 260 incidents are reported to the police, and only 5 lead to a felony conviction (Rape, Abuse & Incest National Network, n.d, p. 1), indicating impotence within the judicial system. Individuals who have suffered instances of unwanted sex are having their rights violated by the court, resulting in crucial debate as to why this is happening, and what is responsible for these damaging statistics. Philosophers of law, such as Mackinnon and Pineau, have proposed reasons as to why the limitation of power for these groups of violated individuals occurs, especially females and those who are of a visible minority status.

Majority of literature regarding the topic proposes to reform rape laws, distancing them from as all-male agenda in order to protect the victims of sexual assault. However, reformed definitions differ from others, and some argue that the variable of consent should not be implemented in court rulings. Yet, there are critical flaws created in an absence of consent regarding the definition of rape, specifically Catherine Mackinnon’s rape theory, due to negative implications on fundamental freedoms for extensive groups of people. Sexual consent entails that two parties agree upon sexual acts within a given time. It is understood that consent may be revoked before or during intercourse, given that an individual is uncomfortable with the continuance of sex and expresses this disinterest. If this notion is to be removed from the definition of rape within the court, and to be replaced on the conclusion of influence and vulnerability, pernicious impacts on relationships of the middle and lower classes are destined to occur, due to the virtues of the patriarchy imbedded into all modern marriages and relationships. Why should those appointed within the courts and juries be allowed to infringe on the sanctity of heterosexual and homosexual relationships? By definition of Mackinnon’s perspective, all accounts of intercourse between two individuals should be classified as rape, due to the implications of gender, income, or status on the relationship itself. This idea of rape, frankly, is not true in any entirety, and allowing a notion such as this to stand will create tensity between individuals and the judicial system.

Is rape the unwanted penetration to an individual, without the expression of consent? Mackinnon, 2014, argues that rape has a definition inadequate to the court, and the variables utilized to express when it occurs are the main culprits as to why there are countless incidents of injustice and discrimination to victims of unwanted sex. She critiques the court’s ability to enforce fairness through their dependence upon this variable, and proposes a new definition for rape. According to Mackinnon, the definition of sexual assault, which can then be translated to instances of rape should be specified as:

“…a physical invasion of a sexual nature under circumstances of

threat or use of force, fraud, coercion, abduction, or of the abuse of

power, trust, or a position of dependency or vulnerability.” (Mackinnon. C, 2014, p. 474)

She outlines a brilliant and eloquent set of guidelines that, if issued, will protect individuals who are otherwise neglected by the judicial system, primarily those pressured into sex on the basis of financial disparity and dependance on the support of the perpetrator. The aspect of this redefinition that is faulty is the idea that rape can be classified in all instances where one party is unequal in power, given a sense “…dependancy or vulnerability.” I argue that this definition will disembark a narrative that the expression of affection through sexual intercourse will always be an instance of rape, due to the personification of the patriarchy into both heterosexual and homosexual relationships (Van Hooff. J, 2011, para. 10-51). The conjunction between subordinate and dominant is seen in majority of long-term pairings, therefore implicating that all instances of sexual intercourse are not fair in nature, and cannot be considered as such in the court of law.

Mackinnon argues that the consent doctrine limits the court to an idea of verbal consent, one that can easily be manipulated in favour of the defendant. I argue that this is not due to the primary reliance of rape being on the basis of consent, rather this injustice is result of date-rape culture being projected in court, an idea that Lois Pineau describes in “Date Rape: a Feminist Analysis” (1989). She outlines a reoccurring ideology in law that the harm done to a woman is not the fault of man, or more broadly that the victimization of a submissive person is not the result of the dominant individual’s actions. Rather, the story most primarily told is that the man is incapable of controlling his libido due to the provocative nature of women. In 2014, Federal Court Judge Robin Camp was removed from his position after disgusting remarks regarding a woman’s potential lust for sex, during a court case where she had been raped over a sink during a party. He explicitly asked her why she couldn’t “just keep [her] legs together”, continuing by stating that “[y]oung wom[e]n want to have sex, particularly if they are drunk” (Hassan. C, 2016, p. 1).

Instances such as this prove the court’s blatant dilution regarding women and sex. As well, the abundance of successful sentences of rapists in cases that fortify themselves on evidence of physical harm after the rape, versus the low number of convictions in cases where women had been intoxicated, or revoked consent during sex, or who felt threatened by the person and simply complied, shows the lack of ability for the court system to believe and act upon any narrative other than a blind support for men. Therefore the power is in the voice of the perpetrator, not the voice of the victim. The provocation narrative (Pineau. L, 1989, p. 222-224), is by far more accurate in explaining these injustices, rather than blaming the definition of rape in the same manner as Mackinnon has.

Many individuals in modern-day society consider themselves as members of entirely impartial relationships, meaning that there is no discrepancy in power and proportionate influences of diction. Yet, the ramification of gender roles that are insinuated in monogamous pairings are likely to present the two persons in a power-struggle when in the court of law. Two individuals cannot share equity within a relationship, as one will always have “more power over the other” (Pennington. S, 2009, p. 34-35). There are many factors that create discrepancies in equality, an idea that Pennington further describes, such as income, gender, responsibilities with children, duties among the house, and even sexual activities can alter how the relationship dynamic forms. Focusing on cis-heterosexual relationships, society is well aware of how a subordinate view of women and male interaction forms inside a marriage. The woman is of a lesser class, subjected onto housewifely duties that include the care and supporting of children and the household, while the male is expected to work and pay for the family, therefore giving the male a higher level of influence in the regulation of the household.

Although this narrative is decreasing substantially in modern relationships resulting from the inclusion of sexual minority groups in law and media, this anecdote is still current. Even with the perfect-housewife narrative becoming diluted, differences in power are still entirely visible in majority of modern relationships. For example, there is an ample increase in the number of men assuming the role of primary caretaker for the children in the household, while the woman adopts the position to provide financial sanctuary for the family. There is a wide range of examples that lay within a spectrum of family dynamics, and all of which illustrate that no two individuals can ever be equal within a pairing. Due to the complexity of these gendered roles and how they may be implemented, an individual’s projection onto society is molded by these equality discrepancies. In other terms, one will always be aware of a person’s influence over their partner. This can become a very dangerous thing when put into terms of rape versus fair sex.

Mackinnon’s perspective can prevent any relationship from being deemed one that can have honest and legitimate intercourse, and all relationships that follow a particular quality of the patriarchy are not safe from being declared unjust. How would this be fair to any participant in a monogamous relationship, as many are unwilling to believe that when they have sex, it shall be considered rape. Individuals would no longer have the ability to dictate their own sexual freedom, and it would be handed over to the opinions of the jury and judge.

The classification of roles based on gender has been indoctrinated into society's idea of love and commitment, it is what most consider to be reasonable and necessary when characterizing a family. These extensions of monogamy have infiltrated the dynamics of homosexual relationships, beginning to mirror the behaviour of traditional straight pairings. This could be due to the oversimplified portrayal of stereotypical gay and lesbian relationships in mass media (Chung. S, 2007, p. 100-101), characterizing individuals whose sexual orientation should not be outlined on a basis of preferences, rather amplified to a level of submissive and/or dominant behaviours. Decorous and butch, top and bottom, and the surge of variations in this terminology depict the same sense of tradition roles, and power relations that a monogamous marriage outlines. Failures within the courts systems have also resulted in a further conjunction between gay and straight norms, as the gender role narrative has prohibited many same-sex partners from adopting children under the court of law. Many of these marriages have homologized their stories to fit a traditional mould the court systems approve, in order to adopt. Having to prove family dynamics may have forced the gay population into assimilation. The idea that homosexual relationships are not fit for the upraising of a child, unless they fit the societal ideology of monogamy has resulted in an inability for same-sex partners to adopt (Lin. T, 1999, p. 739-743). Mirroring these obligatory gender roles within same-sex relationships may result in the same negative implications of Mackinnon’s rape definition. A male who is considered a “bottom”, or a female “dainty”, and anything else that falls within these prevalent stereotypes, will never be able to consent to intercourse with whom they choose, at least not within the eyes of the judicial system. A definition of rape that does not fall within the basis of consent— fair, and mutual intentions— impedes freedom of choice, and violates fundamental rights.

Mackinnon would argue that sex in a monogamous marriage, under this discipline of power differences, is an instance of marital rape, due to one's inability to act in rejection towards their partner as a result of societal implications of what is expected sexually, from one to another. However, what if the classified ‘vulnerable’ individual does wish to have intercourse with their partner? Under Mackinnon’s definition, it would be classified as rape regardless of one’s own personal wishes due to this distinction of power. I am not arguing that marital rape does not exist, and indeed, Mackinnon’s definition would convict far more perpetrators then the current court systems do today. Yet, I argue that the use of consent in the court of law does not deny the existence of marital rape, as well as other coercive instances that may result in unwanted intercourse. If the court were to adopt fair and impartial views on women, and limit the disproportionate influence men have on the decisions of the court, instances of women who were unable to defend themselves in situations such as prostitution and marital rape would be protected. It is a matter of systemic ideology that places women in a lower class, culture that has made them petrified to report to authorities, and court negligence regarding the degree of harm that has occurred when they had been assaulted.

By examining the dynamics between variations of modern relationships, it is apparent to see how there will always be a difference in equality between two adults. This asymmetry translates from relationship into sex and behaviour, which can culminate to an idea of rape when following Mackinnon’s reform. Allowing this narrative to go through in court will tarnish the freedom of sexuality with whomever one mutually consents with, and their ability to determine their own sexual accordances, specifically women in heterosexual relationships as well as homosexual males and females. This vastly more important flaw with Mackinnon’s definition will limit a person’s sovereignty, as the court will now have an ability to rule their own agenda of what rape is within all relationships, harming men, women, and queer persons globally.