Rob Anders, a Conservative Member of Parliament in Calgary, has announced that he will introduce a private members' bill seeking to reintroduce the crime of "rape." The proposal has met with some enthusiasm in some circles. That is not surprising. Well before the language of "rape" was excised from the Criminal Code, in 1983, the idea of collapsing all forms of non-consensual sexual touching into an all-encompassing offence of "sexual assault" was deeply controversial.
The difficulty with using one-size-fits-all language is clear. The victim who has been "sexually assaulted" may have been touched in any one of several ways, ranging from a pinch to penetration. The ambiguity of the label poses what criminal law theorists describe as a "fair labelling problem." By glossing over what, for many rape victims, constitutes a core part of the wrong suffered -- the fact that they were not only touched, but penetrated -- the label "sexual assault" is said to diminish their experience of the crime. This is the basis for Rob Anders' proposal.
It is worth returning to the reasons why reference to "rape" was thought so problematic in the first place. It is now, of course, commonly accepted that rape is "a crime of violence not sex." The simplest way of understanding that statement is that, ultimately, all non-consensual touching -- whether sexual or not, whether penetrative or not -- is by definition an assault. That explains why Parliament, when it abolished the crime of rape and replaced it with sexual assault, situated the new offence in the section of the Criminal Code addressing crimes against the person. (Before 1983, rape sat among offences against public morals, as if the non-consensual touching of a person amounted to nothing more than a breach of public etiquette, or a kind of deviant sex -- on par with sadomasochism or group sex.) The intention was to play up what rape has in common with the "family" of violent crimes generally.
That, however, only explains so much. Why not just move the offence, rather than change the label -- or have two distinct offences, one requiring mere proof of non-consensual sexual touching ("sexual assault"), and the other requiring proof of penetration ("rape")? The answer to that question tells us much about the ambitions of many feminist scholars and activists in the 1970s and 1980s.
Many scholars emphasized, and continue to emphasize, that rape is not different from the kinds of coercion that men regularly use to obtain sexual gratification from women. Women, it was observed, are valued primarily for their ability to reproduce and provide sexual gratification. Because they are expected not to earn an independent living in the public sphere, they have no choice but to negotiate with men using the only commodity at their disposal: their sexuality. At the same time, they are expected to withhold sexual gratification from anyone to whom they are not committed in a lifelong romantic partnership.
In this context, Lorenne Clark and Debra Lewis argued in a highly influential book, some measure of coercion in the sexual sphere is not just tolerated, but receives a wide measure of approval. At the most benign level, men are thought entitled to use their superior socio-economic bargaining position to effectively buy sexual services from women, who have no alternative but to provide them -- at least to someone. But beyond that, it is accepted that men should be the aggressors in sexual 'negotiations' -- that they can engage in all manner of touching, by way of stimulating the desire of women and overcoming their resistance. That resistance was understood as a kind of disingenuous bargaining chip, used to raise the price that men would be prepared to pay to obtain sexual services.
Once ordinary sexual relations between men and women are understood to be shot through with coercion, it is a short step to concluding that rape is not different in kind from 'normal sexuality', but is only the logical extension of a practice that was already unequal at its foundation. Men who lacked the socio-economic or sexual capital to overcome women's resistance in the socially accepted manner would naturally resort to the naked use of force to get what they want.
During the Parliamentary debates over Bill C-53, it was commonly observed that the language of "rape" conferred a stigma upon victims. They were often treated -- and treated themselves -- as "fallen women" or "damaged goods." This attitude was directly connected to a picture of women as sexual objects, whose sense of worth (and self-worth) was wrapped up in their ability to control access to their only commodity of perceived value: their vaginas.
The sense of shame that victims experienced was often cited as an explanation for low reporting and conviction rates. Furthermore, there was a perception that only certain women were "rapeable" -- those who appeared chaste, or who had the socio-economic resources to "hold out" for a better offer. Sex workers, or women perceived as promiscuous, did not fit the mold for the archetypal rape victim, and the police would rarely pursue cases in which they were the complainant.
Rape, in short, was understood as a phenomenon inextricably connected to the degradation and commodification of women and their sexuality -- a natural outgrowth of a society in which the sexual objectification of women is rife. That being the case, many scholars and activists did not think it was enough to change the way in which the public at large thinks about rape. It was necessary to change how we think about our day-to-day sexual habits.
Clark and Lewis argued that there is simply nothing inherently special about the use of a penis to assault a woman by penetrating her vagina -- it was simply another kind of assault, another kind of violence. The fact that it is given special significance in our culture reflects only social norms about what makes women valuable -- the fact that their worth is tied to their sexual purity, and to their ability to sell exclusive sexual access in the market. Penetration matters, first and foremost, because it matters to men -- it is how they want sexual satisfaction, and how they can give effect to their desire to procreate.
It is with this in mind that Clark and Lewis insisted that the crime of "rape," with its emphasis on penetration, should be abolished. The language they use is jarring to contemporary ears:
"It is men, and not women, who have defined rape as the worst thing that can happen to a woman. For a man to have his exclusive sexual property defiled by an intruder is one of the worst things that can happen to him, but it most assuredly is not the worst thing that can happen to a woman, even though it frequently verges on this because of its accompanying risk. What woman would not rather have a penis inserted in her vagina, even against her will, than suffer death or mutilation? Women accept the judgment that rape is a disgrace because they, too, have been brainwashed into placing pre-eminent value on their sexuality, and because they know from experience that rape will, in fact, lead to their social and personal devaluation."
At the root of the abolition of "rape" lies the premise that our ideas of what make touching "sexual" are socially constructed. We think that male aggression and coercion are compatible with sexiness and romance, so we eroticize forms of seduction that are in fact indistinguishable from assaults. ("Blurred Lines," anyone?) By de-emphasizing the significance of penetration, the 1983 amendments purported to force us to collectively re-think what an assault is.
This was, as I said, an ambitious project. Whatever one thinks about the argument, though, it raises a problem. Assuming -- if only for the sake of argument -- that our ideas of appropriate sexual behaviour are indeed shot through with objectifying assumptions about women, does that mean we can ignore the subjective experience of rape victims who (rightly or wrongly) do perceive rape as fundamentally different, not just from ordinary sexual conduct, but from other forms of assault? The objection was articulated more than 30 years ago by Leah Cohen and Constance Backhouse:
"Rape victims perceive rape as an act which is qualitatively different from other forms of physical assault. The fear that it engenders can best be likened to the male fear of castration. As one rape victim said, 'For me, the trauma was the total humiliation of not being treated as a person. There's something worse about being raped than just being beaten.'"
To men and women who have internalized existing gender norms, it is absurd (and offensive) to try to separate rape from its sexualized character. In trying to desexualize the offence of rape, one risks invalidating the experience of its victims -- those, at any rate, who are insufficiently 'enlightened' to appreciate that their experience of the attack as sexual has been socially constructed. One wants to be careful not to pathologize victims of rape, treating them as if they are in the grip of 'false consciousness'.
That argument did not win the day 30 years ago. But already there are signals that some women's groups will oppose Anders' bill. One of the concerns raised is that, by restoring "rape" to the Criminal Code, other forms of sexual assault will be perceived as less significant. Once again, the question will be raised: to what extent is the problem less with a few isolated "rapists" than with a "rape culture" defined by the sexual objectification of women? And should the views of rape victims be given special priority or weight as we address that question?
Whatever Rob Anders' reasons for wanting to bring back "rape," an argument that never really ended may be about to re-open.
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