HOW TO WIN ARGUMENTS WITH FEMINISTS
The Black Man’s Guide to
Survival in White Sexual Culture
WHITE BOYS ON THE RUN:
Revenge of the Ugly Broads
The Emperson wears no Clothes
Sexual Assault and the Reasonable Woman)
by: Colin A. Browne
“POOR MEN HAVE NEVER BEEN ASKED
WHETHER THEY WOULD HAVE
DRAFTED RAPE LAWS
C. BROWNE 1989
is the employment of the fallacy of
ad populum to characterize thoughts and
actions as inappropriate.”
C. Browne, May 1994
TABLE OF CONTENTS
Introduction to the 1994 revision 4
A. Driven by Desire or Vice Versa? 7
B. Monogamy 10
C. Rape Motivation 12
D. Rape Law 16
E. The concept of Sexual Class 26
Vice Versa: The Social Psychology of Rape 29
The Law and the “Dating Game” 33
Appendix: Rebuttal Index 41
INTRODUCTION to the 1994 Revision: The Art of Counter-Feminism
This work was originally written in 1989 as a paper for a Law school class called ” Law and Sexuality”. It’s original title was simply Sexual Assault and the Reasonable Woman. It’s purpose was to put into a workable context the debate over the “correct” way to behave as a heterosexual.
This revision is offered as a guide to show people the flaws in many of the arguments which are currently being labelled “feminist” or “politically correct”. I refer to people who defend such arguments as “homo-sexists” in response to their use of the term “hetero-sexist”. “Hetero-sexism” is a concept which appears to mean something like discrimination in favour of heterosexuals.
George Orwell’s 1984, written in the 1940’s, is only one of the many works that have predicted extreme governmental control over heterosexual behaviour. Even more dangerous is the equally well documented prediction that some day we would be policing each other’s heterosexual behaviour with unwarranted zeal. With this guide we have a tool with which we can reverse these trends.
The Rebuttal Index found as the Appendix will enable you to become familiar with some of the main arguments being made by these people in academic circles. You will have heard many of these arguments in different forms in your everyday experience. Now you’ll be able to show these folks where they’ve missed the point.
This paper describes a “masculine” rape theory. The male experience within the Canadian monogamy-based ideological framework is poorly understood even by Canadian men. Rape in Canada in 1994 can only be understood by first understanding the monogamy-based social structure within which rape occurs. It is submitted that that structure in combination with the effects of the “individual sex love” create the pressures on the minds of Canadian men necessary to create a rapist. “Individual sex love” refers to what Canadians would call “romantic” love.
Current theories of rape motivation correctly identify misogyny ( or “woman-hating”) as the root cause of rape. However, these theories fail to adequately address the question of what is the root cause of misogyny.
It is the thesis of this paper that the root cause of misogyny is in fact its counterpart: man-hating. Both misogyny and man-hating are inherent in Canadian sexual culture because
that culture is a monogamy-based ideology.(MBI)
Rape is not a result of what men learn to do to women or of what men learn about who has property rights in women’s sexuality. Rape is a result of what the MBI teaches women that they
should not do.
Women learn not to see themselves as equal to men on a moral scale. They learn to see themselves as superior to men to the extent that men (and not women) “want to sleep with just about everyone.”
The thesis of this paper then is that the Canadian MBI restricts the sexuality of women to a far greater degree than it does the man’s. This results in a social imbalance where disproportionate pressure is exerted continually upon the woman to restrain her libido. Men and not women are permitted to more or less openly engage in “casual sex.”
The crucial factor in understanding what creates a rapist is the pursuer/pursued nature of the “dating game” under the MBI.
Women must say “yes” or say “no” to numerous men offering them a sexual liaison. Even when the invitation is not verbalized it can be inferred.
The pressure on women causes them to feel resentment and in turn to react defensively on occasion. In Canada in 1994 women understandably often overreact. Unfortunately, the cumulative effect of this sort of overreaction (in addition to other factors) is the ” overreaction” of a rapist.
Current homo-sexist ( ” radical ” feminist or feminist ) theories of rape assert that men believe they have a “right” to access to women’s sexuality. These theories hold that rape represents some men’s need to have that access against the woman’s will.
Many homo-sexist theorists believe that men need to reassure themselves of their “power and potency” and that a crucial factor in that reassurance is the domination and humiliation of their female victims.
Presumably homo-sexists believe that men learn that their “power and potency” are dependent to some extent upon their control of the sexuality of women and so they must demonstrate this control of suffer serious self-doubt.
The purpose of this paper is to examine homo-sexist theory and to propose a rape theory that takes into consideration the realities of the heterosexual ” dating game ” in Canada in 1994.
A. Driven by Desire or Vice Versa?
Homo-sexist theories put too much emphasis on the conscious thoughts of the rapist. Too often they argue that the rapist has some ideation or has internalized some ideology that pulls him in the direction of rape. Rapists, it is argued, are “driven by desire”. These theories often cite such ideations as the “desire to dominate women.”
It is the thesis of this paper that rapists are not pulled in the direction of some idea. Rather, they are pushed by libido into the reality of the MBI. Naturally, they desire to be free from the inconveniences of powerlessness under the MBI.
Homo-sexist theory argues that men rape women because men hate women. They hate women (so the theory goes) because they so resent having to bargain in order to “seduce” women. In reality, men do not resent having to bargain for sex — but they resent having to beg for anything.
Homo-sexist theory holds that since men have to bargain for the sexuality of women and since men rape women, men believe that they have some property right in the sexuality of women. Why else would men be so resentful just because they had to enter negotiations? In reality, men in Canada in 1994 do not believe that they have ” property rights ” in the sexuality of women. However, such terminology is born of the MBI and as such, both men and women use terms like “his” , ” hers ” and ” mine ” to describe each other without much thought.
Too often homo-sexist theory ignores the potential for abuse of men that the MBI creates: too often women make men grovel for sex. When a man “makes a pass” at a woman, he is offering his sexuality to her. At that point he is in a vulnerable position psychologically. Abuse at this point conditions the man’s subconscious in a fashion adverse to the harmonious functioning of the ” dating game ” under the MBI.
The cumulative effect of some women’s negligent but understandable abuse of power in such situations is that men can develop a deep resentment directed toward women. “Abuse” of
power and “exercise” of power are different. “Abuse” in this context is misdirected vindictiveness.
The critical failing of homo-sexist theory is the failure to address the issue of man-hating. Abuse of men causes rape. Abuse of men by women causes abuse of women by men.
Man-hating is the root cause of that misogyny which produces rape, but what is the cause of man-hating in the first place? Most often women abuse their “veto vote” because they feel that they should not become involved sexually with men “too easily.”
“Easy” women suffer serious social penalties.
Women abuse men in this sense not because of a justifiable fear of sexual danger but because they have been trained to think of themselves a morally superior to men. This status carries with it a staggering cost : women bear the burden of being society’s ” moral vanguard “.
Women abuse men because they fear “guilt by association” with a moral inferior. To behave “as men do” and to succumb too readily to a sexual advance would result in adverse sexual stigmatization: women fear being labelled “slut”.
Homo-sexist theory is correct in its assertion that the crime of rape has been treated historically as a property crime. However, there is no direct connection between that fact and what in fact motivates rape. There is an indirect connection: the thesis of this paper.
Who could argue that in the Canadian heterosexual context it is generally the man who asks the question whether the woman will consent to allow him access to her sexuality? In such a situation who is in control? It is the woman that makes the decision — not the man.
When a man asks a woman if he may have access to her sexuality, he is making the woman an offer of his sexuality and he waits for acceptance or rejection. One’s sexuality is an important part of one’s identity. Both men and women desire to have some control over their individual sexuality.
Under the MBI most men almost never find themselves on the receiving end of a sexual advance, in the heterosexual context, and so their reality is that of continually offering and waiting to be rejected or accepted.
The effect of this status quo is that some men “snap under the pressure” and use force or threats of force in order to gain the complete control over women that they feel women have for so long had over them.
A combination of pressures produces a rapist: 1) lack of control over their own sexuality 2) misogyny as a reaction to
man-hating 3) other life stresses. Only the first two pressure sources are dealt with directly in this paper.
The MBI promotes man-hating to the extent that it promotes the “purity” of women while more or less accepting as “human nature” that men will “sew their wild oats.” It is submitted that in Canada in 1994 many supposedly monogamous couples are not that way at all — both parties are “cheating.” It is not “abnormal” to find both men and women having “extra-marital affairs”.
The critical difference to be noted here is that only the men can be more or less open about it. The MBI holds that women are more “pure” than men and so women cannot openly admit to “cheating”. Society expects (in fact contemplates) that men will wander and that women will “be faithful”.
But the man-hating effect of such a status quo is this: the
men are held to be somewhat less “pure” than the women.
Men rape women when they act to establish their control over their own sexuality. Distaste for always asking for and never being asked for sexual favours causes men to envy women, to fear
women, to hate women and finally to rape women.
Both libido and culture play a role in the development of a rapist. The MBI puts the control of male sexuality in the hands of women. The MBI promotes man-hating to the extent that it holds that men are naturally more likely to “cheat” and are less likely to feel guilty about it.
The MBI holds that a woman should never engage in
“casual sex”. Should she be found to be doing so there is a social price to be paid. Women are under far greater pressure than men to deny their libidinous urges and understandably they resent this.
Women’s abuse of their control over the yes or no decision results from these feelings of resentment. Their anger is directed at the men who approach them when it should be directed at the men ( or the class ) who tailored the MBI. All men are not responsible for the fact that the MBI is the dominant ideology in Canada. The evolution of the monogamous unit was an economic process not a “romantic” one. Perhaps their energies should be directed toward an examination of the soundness and validity of the MBI.
The original family unit was the tribe. The monogamous couple evolved as the family unit as a result of economic rather than of sexual considerations. The monogamous unit reflects not the sexual (or natural) behaviours of human beings but the gender (or culturally learned) behaviours.
The evolution of the family in prehistoric times consisted of the continual narrowing of the circle originally embracing the whole tribe within which marital community between the two sexes prevailed. By the successive exclusion, first of closer, then of ever remoter relatives; and finally even of those merely related by marriage; every kind of group marriage was ultimately rendered practically impossible; and in the end there remained only one, for the moment still loosely united, couple, the molecule, with the dissolution of which marriage itself completely ceases. This fact alone shows how little individual sex love, in the modern sense of the word, had to do with the origin of monogamy.1
Monogamy developed largely as a method by which biological
paternity could be traced for the purpose of inheritance. Of course women had to be kept away from men other than their husbands, but men did not have any responsibility to be “faithful” to their wives. There may have been questions about who the father of a child actually was but there would be no such inquiry into the identity of a mother of a new born. It was quickly realized that the identity of the father was crucial when it came to the point of passing property from one generation to the next, hence terms like “primogeniture”.
The differences between men and women that result from the MBI are functions of gender. The maintenance of the economic status quo required only that the women remain “faithful” to their husbands. The penalties for not remaining faithful have always been extremely harsh for women.
In reality, however, this condemnation by no means hits the men who indulge in it, it hits only the women: they are ostracized and cast out in order to proclaim once again the absolute domination of the male over the female sex as the fundamental law of society.2
The men had gained the victory over the women, but the act of crowning the victor was magnanimously undertaken by the vanquished. Adultery–proscribed, severely penalized, but irrepressible–became an unavoidable social institution alongside of monogamy a hetaerism. The assured paternity of children was now, as before, based, at best on moral conviction.3
At first blush it may appear that the MBI puts restrictions
only on women and as such does not operate to the disadvantage of
men in any significant manner. But the resentment felt my women
under the MBI is in turn directed towards the men.
What for a woman is a crime entailing dire legal and social consequences, is regarded in the case of a man as being honourable or, at most, as a slight moral stain that one bears with pleasure, The more the old traditional hetaerism is changed in our day by capitalist commodity production and adapted to it, and the more it is transformed into unconcealed prostitution, the more demoralising are its effects. And it demoralises the man far more than it does the woman. Among women, prostitution degrades only those unfortunates who fall into its clutches; and even these are not degraded to the degree that is generally believed. On the other hand, it degrades the character of the entire male world.4
The MBI promotes man-hating to the extent that it holds that men are morally inferior to women. The MBI holds that traceable
biological paternity is a paramount economic and social goal. It holds that women should ensure that biological paternity remains traceable. It holds that men are naturally more desirous of satisfying their libido than they are maintaining the traceability of biological paternity: men are free to engage in sex even with married women.
In this way, the MBI puts tremendous pressure on women alone to maintain the “economic base” of the status quo.
Women must behave as though they are morally superior to men to the extent that women and not men are required to deny their natural libidinous urges in the interest of “protecting” the economic structure of the state.
C. Rape Motivation
Homo-sexist theory on rape motivation tends to focus on the mind of the rapist by asking the question: What are rapists
thinking? The important question to be asked is: What are rapists feeling?
Clark and Lewis in Rape: The Price of Coercive Sexuality 5 ask two questions: 1) Why does rape happen? 2) What purpose has been served by rape laws? The answers to both of these questions are important and lie in the history of women’s status as property. However, a single explanation will not answer both questions effectively. Clark and Lewis state that:
“…the primary function of the legal and social system was to provide adequate institutions and practices designed to preserve both blood lines and private property…marriage itself was one of the institutions designed to facilitate the transference of property…Thus it was that women became forms of private property.”6
Rape laws were without question designed as a tool for protecting women only as property owned by men.
Parallel to marriage law, rape law developed as another form of social control designed to regulate the orderly transfer of property. Under Anglo-Saxon law, rape, along with most other offenses, was punished by orders to pay compensation and reparation. If a woman was raped, a sum was paid to either her husband or father, depending on who still exercised rights of ownership over her, and the exact amount of compensation depended on the woman’s economic position and her desirability as an object of an exclusive sexual relationship. The sum was not paid to the woman herself; it was paid to her father or husband because he was the person who was regarded as having been wronged by the act.
From the beginning, rape was perceived as an offence against property, not as an offence against the person on whom the act was perpetrated, and it has not lost the shrouds of these historical origins.7
However, the question of the motivation of a rapist is still left unanswered.
Clark and Lewis suggest that the causes of rape may be understood by using a homo-sexist framework where “women as property” is an important concept.
The central core of both male and female socialization is internalization of the belief that women’s sexual and reproductive functions are not their own property, and that rights over the distribution of female sexuality and reproduction lie in the hands of women’s male owners.8
From the perspective of the Canadian male in 1994 any idea that women do not “own their sexuality” is foreign.
Because their sexuality is not theirs to use at their pleasure, but something to be owned by and held in trust for others, women are forced to be sexually manipulative in order to secure their own interests. They are also socialized to regard this as appropriately “feminine” behaviour. Control through the offer, hint, or suggestion of sexual favours, or through the denial of sexual contact are the dominant modes women are expected and socialized to adopt in pursuit of their goals.
Women almost always feel guilty about having sexual relations with anyone other than their actual husbands, the men to whom they are engaged, or, at least, the men with whom they are “in love” or having a “serious” relationship. And the only explanation for this guilt is their acceptance, however unconscious, of the belief that their sexuality is something they hold in trust for the mythical Mr. Right.9
Canadian women in 1994 do believe that they own
their sexuality, and they are not waiting for its owner (Mr. Right) to come and claim it. On the contrary, and alternative explanation for the behaviour outlined by Clark and Lewis is that Canadian women feel guilt ( i.e. severe stress ) in extra-monogamous sexual relations because they have internalized the holdings of the MBI. Canadian women know that they will be punished for such behaviour (should it be discovered), and they infer that there must be some rational explanation for this.
Canadian women in general believe that social “norms” represent what is “right” — if the MBI says “only bad girls cheat,” then only bad girls cheat.
Very few women question this conclusion for they believe that the MBI is an ideology that evolved through a rational process. It is generally believed by Canadians of both sexes that the idea that “only bad girls cheat” has its grounding in rational thought.
From the male point of view, female sexuality is a commodity in the possession of women, even if it is something men will come to own and control under the appropriate circumstances. Women are seen as the hoarders and miserly dispensers of a much desired commodity, and men must constantly wheedle, bargain, and pay a price for what they want. And if anything lies at the root of misogyny, this does. Men naturally come to resent and dislike women because they see them as having something which they want and have a perfect right to, but which women are unwilling to give them freely, the right to female sexuality must be purchased.10
Canadian men in 1994 do not feel they have any “right” to women’s sexuality. They are prepared to bargain for sex with women. Canadian men are interested not only in sex but in emotional relationships with women. Negotiating with women in order to achieve these goals is not a problem and does not cause rape. Unfortunately, men too often find themselves in an unequal bargaining position because the MBI holds them to be moral inferiors. Many Canadian men are prepared to purchase sexuality.
The root of misogyny…..lies in men’s resentment at having to bargain with women for sexual gratification.. It is hardly surprising, therefore, that this misogyny should be most dramatically expressed by men without the economic or social means to acquire the women they want.
But while the necessity for such bargaining is the root cause of male misogyny, it is not the only factor which contributes to it. However justified men may believe their social position to be, they are nonetheless aware, at some level, that women are oppressed and do not always accept their oppression willingly. Misogyny is caused by fear as well as resentment.11
Clark and Lewis suggest that a combination of resentment for having to bargain for or purchase sex and a fear that women might rebel produce the misogyny necessary to motivate rape.
The hatred and fear that motivate rape are not functions of a property\owner relationship. The MBI is such that women are required to act a vanguard and to assume a position of moral superiority in relation to men with respect to “causal sex”.
Men must offer their sexuality knowing that unless the woman can envision the man as “Mr. Right,” she has an MBI imposed moral duty to reject him. Rather than a fear of a women’s rebellion, mean fear the abuse of the power that individual women exercise over men in the day to day reality of the “dating game”. Many Canadian men have years of experience with being described as
” Mr. Wrong” and they resent this.
Men fear that they will not be given a fair opportunity to “make their pitch.” They fear that they will be dismissed immediately as being quite obviously not “Mr. Right”. Any suggestion that rapists are “men without the economic or social means to acquire the women they want” is fallacious.
As soon as a young Canadian male (rich or poor) begins to communicate to women his interest in sexual activity, he is confronted with the MBI-created belief that he is the woman’s moral inferior. The cumulative effect of being continually rejected as a moral inferior (or even of being accepted on that basis) is a deeply held feeling of resentment directed toward women. The standard of moral inequality is what acts to the disadvantage of both men and women, and the women are expected to defend it.
Rape is by no means a normal function of male behaviour. Rape occurs when a man becomes hysterical and lashes out in an attempt to take control of his own sexuality.
…..rape is dismissed with a knowing wink as a natural consequence of the sexual game in which man pursues and woman is pursued. What is called “rape”, then, is thought to be only an unsophisticated seduction; at most, it is a minor breach of our social standards.12
In Canada in 1994 men do not think of rape as a “minor breach of our social standards”. Canadian men do not rape because they think they have a “right” to do so or because they think rape is a “minor breach”. When men rape they do not think about whether or not they have a “right” to do so. Rights as such are immaterial to the question of what motivates the rapist. Canadian men rape because they are driven to hysteria by a crippling and humiliating status quo. At that point, “rights”, or no “rights”, some men will rape.
D. Rape Law
The fact that rape was originally perceived as an offence against one form of property owned by men, and that it has developed historically and legally within this conceptual framework, had several important consequences. First, just as with any other property offence, the punishment had to fit the crime. The punishment corresponded to the value of the goods stolen, and the amount of damage done in the trespass: the more “valuable” the rape victim, and the more damage done to her property value, the harsher the penalty. And “value”, where a woman was concerned, depended strictly upon her economic status as determined by her father or husband, and her desirability as an object of an exclusive sexual relationship.
Thus, the economic position of the rape victim, and her status as a desirable, marriageable property, were the two features assessed in determining the extent of punishment to be meted out to the rape offender.13
The crime of rape was created with property concerns paramount in the minds of the legislators. But the rapist in Canada in 1992 is completely unconcerned about who has “rights” to the sexuality of his victim. The rapist is not concerned with whether or not some existing or future “exclusive sexual relationship” may make it such that he will likely never have “rights” to her sexuality.
Most women do accept, at least to some degree, the concept that their sexuality is something which is not theirs, but which they hold in trust. Fortunately, many never progress beyond understanding that it is something which others, particularly their fathers, think they should hold in trust, but even this inhibition is enough to ensure that women do not dispose of their sexuality purely in accordance with their own desires. Most women do not exercise either their sexual or their reproductive capacities freely for the simple reason that you cannot give freely what you do not believe rightfully belongs to you. 14
Canadian women do not believe that any man owns their sexuality. Canadian women rightly believe that Canadian society
(through the tenets of the MBI) accepts certain sexual behaviours and rejects others.
The tension between sexual danger and sexual pleasure is a powerful one in women’s lives. Sexuality is simultaneously a domain of restriction, repression, and danger as well as a domain of exploration, pleasure, and agency. To focus only on pleasure and gratification ignores the patriarchal structure in which women act, yet to speak only of sexual violence and oppression ignores women’s experience with sexual agency and choice and unwittingly increases the sexual terror and despair in which women live.15
Under such pressure, women understandably feel resentment toward men. Such resentment, coupled with the belief that “men have no shame,” understandably results in the systematic abuse of the superior bargaining power that the MBI places in the hands of women.
….. if women were “good” (sexually circumspect), men would protect them, if they were not, men could violate and punish them. As parties to this system, “good” women has an interest in restraining male sexual impulses, a source of danger to women, as well as their own sexuality which might incite men to act. Nineteenth-century feminists elaborated asexuality as an option for respectable women, using female passionlessness and male sexual restraint to challenge male sexual prerogatives.
Even some feminist analysis runs the risk of overemphasizing sexual danger, following the lead of the larger culture … women’s fear of reprisal and punishment for sexual activity has not abated. The threat of male violence is , however, not the only source of sexual danger.
Transgressing gender raises the spectre of separation for both women – both the mother and literal and metaphorical sisters – leaving one isolated and vulnerable to attack. These subterranean pulls on women are not less powerful by remaining unnamed. Our unspoken fears are added to the sum of sexual terror. Without a better language to excavate and delineate these other souces of danger, everything is attributed to men.16
Canadian women still learn to appear passionless and must engage in “male sexual restraint” in order to qualify as “good” women. This “male sexual restraint” is not always self-defence against sexual attack , often it represents the exercise of the “duties” as vanguard of sexual behavioral standards.
Canadian women exercise “male sexual restraint” in order to illustrate their support for the MBI more often than they exercise it in order to protect themselves from sexual attack.
Through a culturally dictated chain of reasoning, women become the moral custodians of male behaviour, which they are perceived as instigating and eliciting. Women inherit a substantial task: the management of their own sexual desire and its public expression. Self-control and watchfulness become major and necessary female virtues.17
In that passage, Carole S. Vance contributes to the argument that women are considered morally superior to men under the MBI. Canadian women are more restrained by fear of reprisal and punishment for sexual activity than by fear of “sexual danger”. Men are expected to be in need of considerable “sexual restraint”. In fact, the male “requirement” of “sexual restraint” is glorified by society at large.
It appears as though homo-sexist theorists consider it the responsibility of the State to be the modern vanguard of the sexual standard. While society glorifies male “eagerness” the homo-sexists argue that the State must implement appropriate “controls”. It is frequently suggested that the Criminal Code be “amended” to deal with the problem of violence against women.
In the violent landscape inhabited by primitive woman and man, some women somewhere had a prescient vision of her right to her own physical integrity, and my mind’s eye I can picture her fighting like hell to preserve it.
The dim perception that had entered prehistoric woman’s consciousness must have had an equal but opposite reaction in the mind of her male assailant. For if the first rape was unexpected battle founded on the first woman’s refusal, the second rape was indubitably planned. Indeed, one of the earliest forms of male bonding must have been the gang rape of one woman by a band of marauding men. This accomplished, rape become not only a male prerogative, but man’s basic weapon of force against woman, the principal agent of his will and her fear. His forcible entry into her body, despite her physical protestations and struggle, become the vehicle of his victorious conquest over her being, the ultimate test of his superior strength, the triumph of his manhood.
Man’s discovery that his genitalia could serve as a weapon to generate fear must rank as one of the most important discoveries of prehistoric times, along with the use of fire and the first crude stone axe. From prehistoric times to the present, I believe, rape has played a critical function. It is nothing more or less than a conscious process of intimidation by which all men keep all women in a state of fear.
By anatomical fiat–the inescapable construction of the genital organs–the human male was a natural predator and the human female served as his natural prey.18
Susan Brownmiller concludes that the purser/pursued character of the “dating game” under the MBI arose “by anatomical fiat”. Brownmiller by that conclusion ignores gender concerns and blames biology. It is in fact gender that produces the rapist :biology produces only libido. One of the real dangers of her conclusion is that it implies that all men, are “natural predators”. If this is so then only the State could afford to implement effective control mechanisms as they would no doubt be costly to administer.
The pursuer/pursued character of the MBI results in the unequal bargaining positions of men and women: the “dating game.” Rape is a result of economic fiat to the extent that economic
concerns produced the MBI and that the MBI produces rape.
The role of gender in Western society is discussed by Catherine MacKinnon where she compares Marxism to feminist theory.
Sexuality is to feminism what work is to Marxism: that which is most one’s own, yet most taken away. Marxist theory argues that society is fundamentally constructed of the relations people form as they do and make things needed to survive humanly. Work is the social process of shaping and transforming the material and social worlds, creating people as social beings as they create value. It is that activity by which people become who they are.
Class is its structure, production its consequence, capital its congealed form, and control its issue.
Implicit in feminist theory is a parallel argument: the moulding, direction and expression of sexuality organizes society into two sexes–women and men–which division underlies the totality of social relations. Sexuality is that social process which creates, organizes, expresses and directs desire, creating the social beings we know as women and men, as their relations create society.
Heterosexuality is its structure, gender and family its congealed forms, sex roles its qualities generalized to social persona, reproduction a consequence and control its issue.
Marxism and feminism are theories of power and its distribution: inequality [their common theme] .19
A class analysis is useful as a framework with which to analyze the current state of misunderstanding between men and
women in Canadian society. Our society has not been constructed by “men”, it has been constructed by “ruling class men.”
Our rape laws were designed by men who held property, in order to protect the inheritance of that property. Poor men have never been asked whether they would have drafted rape laws differently.
Where the resources of the state are enlisted to “restrain” men the intended functioning of the MBI is disrupted. Men, already acting in the capacity of door-to-door-sexuality salesmen are further hampered by discrimination on the basis of anatomy.
Brownmiller’s argument that rape is a conscious process of subjugation of all women by all men appears flawed when viewed through the class analysis framework. Laws made by ruling class
men are causal factors which result in all men existing in conditions which produce rape.
However, the conscious acts that produced these conditions were performed by ruling class men not for the purpose of instilling fear in women but as we have seen, for the purpose of making sure they knew their wives had produced legitimate heirs.
Feminists have often found that working-class movements and the left undervalue women’s work and concerns, neglect the role of feelings and attitudes in a focus on institutional and material change, denigrate women in procedure, practice and, everyday life, and in general fail to distinguish themselves from any other ideology or group dominated by male interests.20
MacKinnon suggests that groups dominated by “working-class movements” tend to “neglect the role of feelings and attitudes.” It is submitted that homo-sexist theorists have been ignoring the role of feelings and attitudes of men in their attempts to explain rape.
Socially, femaleness means femininity, which means attractiveness to men, which means sexual attractiveness, which means sexual availability on male terms …. Gender socialization is the process through which women come to identify themselves as sexual beings, as beings that exist for men … Sex as gender and sex as sexuality are thus defined in terms of each other, but it is sexuality that determines gender, not the other way around, This, the central but never stated insight of Kate Millett’s Sexual Politics, resolves the duality in the term, “sex” itself: what women learn in order to “have sex,” in order to “become women” –woman as gender-comes through the experience of, and is condition for, “having sex” –woman as sexual object for man, the use of women’s sexuality by men.21
MacKinnon suggests that women are under societal pressure to make themselves sexually available on male terms. She says that women in order to “become women” must consent to use of their sexuality by men. MacKinnon undervalues the natural urges that women feel to become involved sexually with men.
As has been submitted, the MBI puts great pressure upon women to control their own sexuality and that of the men in pursuit. This pressure has a greater effect upon women’s behaviour than does any pressure to ” exist for men”.
MacKinnon suggests that it is the use of women’s sexuality that women are pressured into providing for men. The “use” of women’s sexuality is conceptually different from any right to ownership of that sexuality.
Sexuality, then, is a form of power. Gender, as socially constructed, embodies it, not the reverse. Women and men are divided by gender, made into the sexes as we know them, by the social requirements of heterosexuality, which institutionalizes male sexual dominance and female sexual submission. If this is true, sexuality is the linchpin of gender inequality.22
Sexuality is the linchpin of gender inequality. However, for the purposes of understanding rape it is critical to focus on the situations in which men are less powerful in relation to women. Men are not “sexually dominant” in Canada in 1992. Men are sexually aggressive because the MBI makes it necessary. Men in fact are sexually powerless to the extent that without prostitution, most have no power to arrange for women to have sex with them. “Male sexual dominance” is a homo-sexist myth.
Of course, women’s position as the “pursued” is no absolute power, but under the MBI only the men are at risk of complete celibacy: if men don’t want to risk having to beg for sex then they run the risk of never gaining access to women’s sexuality without having to hire a prostitute.
For women it is different. Women are seldom at risk of complete celibacy: there is virtually always a man prepared to accept a woman’s offer of her sexuality.
Rape is not an extension of male dominance: it is a reaction to feelings of powerlessness.
Women through male eyes is sex object, that by which man knows himself at once as man and as subject …. Objectification makes sexuality a material reality of women’s lives, not just a psychological, attitudinal, or ideological one 23 ….
Man fucks woman; subject verb object.24
MacKinnon states that men see themselves as “subjects” and see women as ” objects”. This is a gross oversimplification of heterosexual relationships in Canada in 1994. Both men and women see the other as” sex objects” on occasion. Both men and women see the other as “love object” on occasion and both men and women see each other in both ways simultaneously on occasion.
Under the MBI only men are free to engage in “casual sex”. Only men are free to behave as though they see women as sex objects alone. Only women must behave as though they are incapable of or uninterested in having “casual sex”. Only women must behave as though they see every man they have sex with as a “love object.”
Can such a state be made to serve the interests of those upon whose powerlessness its power is erected? [Since it] achieves this [erection] through embodying and ensuring male control over women’s sexuality at every level, occasionally cushioning, qualifying, or de jure prohibiting its excesses when necessary to its normalization.25
MacKinnon suggests that men have control over women’s sexuality “at every level”. That is not the case. As the song goes, “You gave me these weapons — and I’m free to use them.” The “weapons” the lyric refers to is the physical element of women’s sexuality: her body. Throughout history, faced with a position of almost complete powerlessness, in a political sense, women have learned to “use their weapons.” Abuse of power by women in such situations is not the exception: it is the rule. However, in Canada in 1994 it is no longer true that women as a class are without political clout. In fact, political power supplements the advantage of “positive stereotyping” ,the result being the creation of a class of “moral superiors” with clout.
To the extent possession is the point of sex, rape is sex with a woman who is not yours, unless the act is so as to make her yours.26
Ownership is simply the most efficient form of control.. “Ownership” is nothing more than a set of legal rights and duties which ensures the most effective control over some form of property, whether it be a TV set, land holdings, stocks and bonds, or wives and children. Typically, this set of rights includes the right to exclusive use and disposition of the property in question, and it imposes a duty on others to return any property to the lawful owner which is his.27
MacKinnon and Clark and Lewis suggest that ownership and possession (property rights) are important concepts in the inquiry into the question of rape. That in fact is the case, but those concepts do not figure in the mental condition necessary to create a rapist.
A man need only control the sexuality of women temporarily in order to take control of his sexuality temporarily. Rape does not satisfy rapist’s “need” to possess or to own anything. If men were motivated by such concerns as ownership of possession of women’s sexuality, then men would have to kidnap women in order to gain some satisfaction. Not all rapists are kidnappers.
Like heterosexuality, the crime of rape centres on penetration. The law to protect women’s sexuality from forceable violation/expropriation defines the protected in male genital terms. Women do resent forced penetration, but penile invasion of the vagina may be less pivotal to women’s sexuality. This definitive element of rape centres upon a male-defined loss, not coincidentally also upon the way men define loss of exclusive access. In this light, rape, as legally defined, appears more a crime against female monogamy than against female sexuality. Property concepts fail fully to comprehend this, however, not because women’s sexuality is not, finally, a thing, but because it is never ours.
This may explain the male incomprehension that, once a women has had sex, she loses anything when raped. To them we have nothing to lose. Dignity harms, because non-material, are remote to the legal mind.28
MacKinnon suggests that the legal (i.e. male?) mind finds “non-material” harm a remote concept. Canadian law has long been familiar with fashioning remedies for non-material harm.
The torts of intentional infliction of mental suffering and defamation are examples.
MacKinnon echoes popular homo-sexist sentiment by concluding that female sexuality is not the property of women because rape appears to be “more a crime against female monogamy than against female sexuality”. But the conclusion does not flow from the observation. Rape is crime against female monogamy. By definition, under the MBI (or even under a rational ideology) it could not be said that a rape is an expression of “individual sex love”.
However, in Canada in 1994 a woman’s sexuality is the property of the woman before, during and after she has been raped. Although sexual assault is a crime, it is not a “property crime”. Does one lose some ownership right if an uninvited stranger leaps in and out of the driver’s seat of one’s car?
Women own their sexuality: rapists only control it temporarily. This sounds trite but it is not. In order to fight against rape, Canadians must understand why men rape. In order to understand why men rape, it must be understood that rapists do not attack women because they feel that women have something they have a “right” to own or possess.
If rape laws existed to enforce women’s control over [their] own sexuality, as the consent defense implies, marital rape would not be a widespread exception.29
In Canada in 1994 marital rape is illegal. But in Canada in 1994 (as it was when our rape laws were first drafted) what motivates rape law is not what motivates rape itself.
…..men are systematically conditioned not even to notice what women want. They may have not a glimmer of women’s indifference or revulsion. Rapists typically believe the women loved it.30
Canadian men are not conditioned to be blind to women’s indifference or revulsion. Canadian men are familiar with both. A rape occurs when a man acts in spite of his knowledge that the woman is being forced. It is hardly surprising that a rapist would say he believed that the woman was consenting when cross examined or questioned on the point. And even if it were true that rapists believed that their victims ” loved it ” that fact would not speak to the question of ownership versus control or to the question of why men rape.
E. The concept of Sexual Class
Zillah Eisenstien in The Radical Future of Liberal
Feminism31 discusses the difference between “liberal” and “radical” feminism.
When liberal feminism is equated with feminism, other forms of feminist theory–be they radical, socialist, lesbian, black, anarchist, or some blending of these–are rendered nonexistent.
Liberalism is… a specific ideology seeking to protect and reinforce the relations of patriarchal and capitalist society.32
The concept of sexual class is central to Eisenstein’s analysis. She argues that” liberal feminists” by not rejecting liberalism actually defend patriarchal society. To the extent that” radical” feminists (or homo-sexist theorists) accept that the pursuer/pursued character of the MBI reflects nature and not gender, the homo-sexists defend “patriarchal and capitalist” society in Canada in 1992.
As a sexual class,under the MBI, men are pursuers: women are pursued. Homo-sexist theorists who accept that men pursue women because they see themselves as having property rights in women’s sexuality are reinforcing the basic tenet of the patriarchal MBI. If men believe that they have “property rights” then might it not be the case that women are restrained by their belief that they do not have such rights? The MBI holds that women should not be pursuers. This proposition grounds the society’s expectation that women should be more “restrained” than men. Woe betide the woman who disagrees.
….. there is a real difference between liberalism and liberal feminism in that feminism requires a recognition, however implicit and undefined, of the sexual-class identification of women as women. 34
Grace Atkinson outlines the difference between a biologically determinist theory of sex class and one that recognizes the cultural and political determinants of biology. As such one’s sexual class reflects the political relations of patriarchy that define woman’s biology in specially oppressive ways. She interprets the class nature of female oppression through the patriarchal relations that manipulate woman’s childbearing capacities.
The problem, according to Atkinson, is not childbirth itself but the patriarchal relations of society, which transform this capacity into woman’s life function.
Christine Delphy has sought to further understand the sex class nature of woman’s oppression through woman’s patriarchal exploitation in marriage. Women’s domestic work and child rearing responsibilities express the root of sex class relations in this case.
Atkinson’s and Delphy’s visions of sex class are different from the earlier biologically determinist radical feminist position. They also differ from the early liberal feminist view that woman’s oppression primarily reflects “disenfranchised position” in bourgeois society. In their view, sex class is understood as the way the political system of patriarchy manipulates and uses woman’s biology as a childbearer and childrearer.35
Whatever the causes of sex class identification are, there can be little doubt that such classification is social reality under the MBI.
Under the MBI, both men and women are disadvantaged by discrimination against them on the basis of sex-class. Homo-sexist theory fails to comprehend that the MBI does not operate to the full advantage of men or to the full disadvantage of women.
As an ideological framework for Canadian sexual behaviour the MBI produces ill effects for both sex-classes. Whether “patriarchy manipulates and uses woman’s biology” or whether by
“anatomical fiat” women are “screwed”, both sexes get the shaft. Many Canadian women find it easy to accept that men are their moral inferiors. Their everyday experience under the MBI presents them with this perspective through the media and other channels of propaganda.
The reality that underlies that patriarchal bias of liberalism is that women have been defined by their reproductive capacities in western society. Woman’s distinguishing biological characteristic is her ability to reproduce the species through her body. On the basis of this capacity she has been excluded from the human activities and contained within a sphere defined as female.36
What does Eisenstien mean when she uses the term
“patriarchal bias”? The term “patriarchy” is problematic. Sex-class exists: men and women have different gender roles. But the interrelationship of those roles cannot be communicated by the use of such terms as “paternalistic” and patriarchal”.
There are, to be sure, certain problems with the term patriarchy. It is used in differing and contradictory ways as (1) a legalistic concept involving the historical period of father-right from antiquity to the demise of feudalism and (2) as an all-encompassing view of human culture that spans recorded history to the present.37
According to Roisin McDonough and Rachel Harrison, “the characteristic relation of human reproduction is patriarchy, that is, the control of women, especially of their sexuality and fertility, by men”.38
In the Canadian context the” characteristic relation” of human reproduction is monogamy, that is, the control of women especially their sexuality and fertility by societal pressure. Canadian society in 1994 exerts pressure on women (to a far greater extent than men) to restrain their own sexual behaviour. At the same time there is societal pressure, again on women, to control the sexual behaviour of men to the extent that women bear the burden of being “moral vanguard”.
Terms like “property rights”,and “father-right” cannot rationally ground an argument that men believe that they have a “right” to women’s sexuality or that “the political system of patriarchy” mandates such ownership relationships.
VICE VERSA: The Social Psychology of Rape
The importance of understanding the social psychology of rape lies in the area of prevention of rape and the treatment of rapists by the State.
Rape is a response firstly to an instinctual drive and secondly to deep feelings of resentment at being treated as a moral inferior: suffering on the basis of one’s dissimilarity to “Mr. Right” and other negative stereotyping.
Women and not men are under pressure to behave as though they support the MBI. Only women have to keep up a public image that suggests that they are protecting the economic backbone of Canadian society — traceable biological paternity.
When a man offers his sexuality to a woman she is under pressure to assert her support for the MBI. If the woman’s public image could possibly suffer because of involvement with this man, she is under pressure to reject his offer. It is always the case that a woman’s image could be tarnished by association a man.
After all, men as a sexual class are “morally inferior”.
The result is that men have to “hedge their bets”: invest in expensive suits, romanticize their occupations or other features, and resentment builds.
Abuse of the “yes or no” power triggers these deep feelings of resentment and not surprisingly the result can be the creation of a rapist. A rapist is an angry man in an hysterical state lashing out against a woman in an attempt to secure, even if temporarily, some control over his own sexuality.
Crucial to an understanding of how the MBI creates a rapist is an understanding of the effects of Engels’ “individual sex love”. Canadians, generally, are looking for reciprocal emotional relationships at the same time that they look for sex.
No such thing as individual sex love existed before the Middle Ages. That personal beauty, intimate association, similarity in inclinations, etc., aroused desire for sexual intercourse among people of opposite sexes, that men as well as women were not totally indifferent to the question of with whom they entered into this most intimate relation is obvious. But this is still a far cry from the sex love of our day.
Our sex love differs materially from the simple sexual desire, the eros, of the ancients. First it presupposes reciprocal love on the part of the love object. In this respect, the woman stands on a par with the man; whereas in the ancient eros the woman was by no means always consulted. Secondly, sex love attains a degree of intensity and permanency where the two parties regard non-possession or separation as a great, if not the greatest misfortune; in order to possess each other they take great hazards, even risking life itself–what in antiquity happened, at best, only in cases of adultery. And finally, a new moral standard arises for judging sexual intercourse. The question asked is not only whether such intercourse was legitimate or illicit, but also whether it arose from mutual love or not.39
In the Canadian context both men and women expect to be “loved back.” Generally speaking, only the very wealthy enter relationships with property concerns as paramount considerations. Most men approach women with some expectation of entering into a reciprocal emotional relationship (and vice versa).
That is not to say that under the MBI ownership is a foreign concept. Most Canadians consider some form of “possession” to be a sign of a healthy relationship. The “open marriage” is generally frowned upon and stigmatized as an “alternative” life style.
Both men and women believe that they should exert some level of control over the sexuality of their partners. Each believes that the other should remain “faithful” and that “fidelity” is a show of emotional commitment.
But neither party believes that s/he has any “right” to the sexuality of the other in any meaningful sense. With the criminalization of martial rape, Canadian men now realize that there is no sense whatsoever in which they have a “right” to a woman’s sexuality. Before that criminalizaton Canadian men did
not believe that they had a “right” to the sexuality of women in general.
The gender difference in Canadian society is that only men may engage in sex “just for the sake of sex.” Women are responsible for maintaining the moral standards of Canadian culture with respect to sexual activity.
Such a status quo puts men in an inferior bargaining position when they attempt to negotiate with women for sex.
H. S. Maine, the English jurist, believed that he made a colossal discovery when he said that our entire progress in comparison with previous epochs consists in our having evolved from status to contract, from an inherited state of affairs to one voluntarily contracted.
But the closing of contracts presupposes people who can freely dispose of their personas, actions and possessions, and who meet each other on equal terms.
But if it was the duty of married people to love each other, was it not just as much the duty of lovers to marry each other and nobody else?40
Are men and women in Canada in 1994 in equal bargaining positions when they enter into sexual relationships? Both parties have a duty to be monogamous (although a duty is more onerous for the woman). But all extra-monogamous behaviour is stigmatized as morally reprehensible.
Canadian men enter relationships in an inferior bargaining position to the extent that under the MBI they are stigmatized negatively as a sex class. The MBI holds that Canadian men engage in morally reprehensible behaviour with little or no shame.
And on paper, in moral theory as in poetic description, nothing was more unshakably established than that every marriage not based on mutual sex love and the really free agreement of man and wife was immoral. In short, love marriage was proclaimed a human right; not only as man’s right (droit de l’homme) but also, by way of exception, as woman’s right (droit de la femme).41
In Canadian context both parties have a “right” to reciprocal love but only the man must bargain for it with the stigma of belonging to a sex class held to be sexually amoral.
Homo-sexists argue that rape is born of desire and not of drive. Desire is intentional and fixed on some object so the subject acts to fulfil that desire.
A drive is unintentional. Rape is a response firstly to a drive and secondly to a desire created by the MBI. Under the MBI, instinctual sexual drive shared by both sexes propels men into an unfamiliar position of powerlessness.
There a desire is born: the desire to feel the power of having the sexual veto vote. Rape, then, is born of drive and shaped by desire.
The Law and the ” Dating Game”.
It is the nature of the “dating game” that men make unsolicited sexual advances toward women. Women under the MBI have the responsibility then to give a perceptible “yes” or “no” signal. This responsibility is the “social price” of the woman’s veto vote.
If a woman does not signal “no” then it should not be unexpected under the MBI for the man to proceed to intercourse. Of course, this argument assumes that the woman has the capacity to make herself heard; any act of intercourse with a woman who is unable to indicate “no” cannot be said to have involved consent.
Under the MBI the sex drives of both men and women are orchestrated by the rules of the “dating game”: men pursue, women are pursued. Men must take the risk of rejection of their sexual advances and women must ensure that the “no” signal is clearly transmitted.
It is the man’s responsibility to pay attention to the woman’s responses (both verbal and non-verbal) and to cease immediately upon receiving the “no” communication.
Professor Toni Pickard argues for an “objective” but individualized approach to the question of reasonableness of belief on the basis that “it is easy to take care, that is, think about consent, in the sexual context, and the risk of harm if one does not do so is very great.”42
Pickard argues that the man may not claim mere absence of knowledge of non-consent, he must assert a belief in consent. A man cannot defend himself by stating that he had no idea whether the woman was consenting or not. That argument would likely lead to a conviction on the basis of recklessness.
Recklessness in this sense means the attitude of one who, aware that there is a danger that his conduct could bring about the prohibited result nevertheless persists, despite the risk. Thus, and honest belief that the complainant was consenting freely and voluntarily and not because of threats would negate the mens rea. However, that defence is not available in circumstances of wilful blindness by the accused.
Wilful blindness arises when the accused, who has become aware of the need for some inquiry, declines to make the inquiry because he does not wish to know the truth but would prefer to remain ignorant.43
Pickard argues that the real issue is the “quality” of the belief which will be sufficient as a defense. She suggests an “individualized standard” which is neither subjective nor objective to the extent that the capabilities of the individual man are measured against the capabilities of the “ordinary person”.
….. the actor claiming a mistake has inquired into consent before performing the act, and the consideration he consciously gives to the question will itself provide him the opportunity to avoid an unreasonable mistake. The inquiry he must undertake is simple: a single fact has been isolated and declared legally relevant to the doing of a single, temporally and spatially finite, intentional act. Consent is a matter of present fact, not of potential further consequences. There are only two legal relevant possibilities: consent is given or it is not .There is a discrete method, available to virtually everyone, of clarifying any ambiguities: actual verbal inquiry. And the one person who possess the necessary information is, after all, right there. In such circumstances, there can be no unfairness in requiring the actor to inquire into consent with the degree of care of which his is personally capable.44
It is submitted that it is unfair to “require the actor to inquire into consent”. Under the MBI it is unrealistic to require the man to verbalize the question: “Shall we have intercourse?”
Due to the reality of the MBI the question has already been asked. As soon as the man makes a sexual advance toward a particular woman, the question is being put to her. It is her responsibility to answer the question unequivocally. Pickard’s position ignores the extra-legal “relevant possibility” that communication is imperfect.
Women too often feel as if they should not yield too easily. The tenets of the MBI hold that only “sluts” do so. A “good” woman must be “seduced” generally before she will consent to intercourse.
The effect of “seduction” is to allow the woman to convince herself that she is not a “slut” because she is not wilfully engaging in sexual intercourse: she’s being “seduced”. By refusing to acknowledge her active participation, she can deny any responsibility for her actions. She is being “wilfully blind” to the extent that she does not want to accept the truth.
The day to day reality for Canadian men is that should they confront the woman directly with her option to refuse, the woman is confronted with the fact of her own involvement in the decision. If a man came right out and asked “Do you want to have sex?” the Canadian woman would be forced to admit that she has always been in complete control of her sexuality and that she is capable of engaging in intercourse of her own volition. The MBI pressures women not to do so.
Homo-sexist theorists argue that men believe that when women say “no” they really mean “yes”. It is submitted that in Canada in 1994 very few,if any, men (including judges) hold that misconception.
The truth of the matter is that women often say “no” under the pressure of the MBI when what they mean is in fact “no”.
However, women often say “no” when they want to say “yes”. This is clearly a “no” signal and is not consent. What Canadian men believe is that women often mean “seduce me” when they say “no”. Under the MBI, women are pressured to behave in a “coy” manner and only to that extent is it true that women mean “yes” when they say “no”. Often Canadian women mean “keep trying” when they say “no”.
There is a crucial difference between “seduction” and “sexual assault”. Seduction is a rule of the MBI, is legal and accepted generally by both Canadian men and women. Sexual assault is not a rule of the MBI, is illegal and accepted by neither sex.
Under the MBI, men must persist in their advances. Canadian men must learn the art of “sophisticated seduction” in order to give the woman the excuse that she is no longer capable of resisting. Only then can the woman feel that she is still a “good” girl.
Any sort of formal inquiry made by the man with respect to consent is viewed by most women as “unromantic” and is incompatible with any form of successful seduction. Communication during negotiation as part of the” dating game” is much more challenging than most other negotiations.
The myth of “individual sex love” and the rules of the irrational MBI combine to create a status quo where men are at once required to ask for sex before proceeding to intercourse while maintaining the illusion that women really don’t want to have sex. Since both men and women have been trained to believe that the MBI grew naturally (and therefore rationally) from “individual sex love”, both parties accept this challenge as inevitable.
It is submitted that the Canadian man who makes a sexual advance and proceeds to have intercourse with a woman is not being “wilfully blind ” or ” reckless”if (1) the woman is capable of indicating “no” (2) a reasonable woman in the circumstances would not consider herself threatened either expressly or impliedly and (3) the man has received unequivocal submission. One homo-sexist article is introduced thusly:
Lucinda Vandervort radically challenges the social and legal constructions of the concept of “consent”. She argues that at the most basic level, sexual assault is assault. This it should be defined in law as any sexual touching of another without actual consent. She argues that when judges allow accused to use the defense of mistaken belief in consent, they are actually permitting social myths about women’s sexual tastes to be treated quite improperly as evidence of consent…. she proposes that the element of consent be subject to positive and affirmative proof. Only if the law requires actual affirmative consent will social definitions of “non-consensual sex” gradually come to recognize women’s physical autonomy and sexual self-determination.45
In that article, “Mistake of Law and Sexual Assault:
Consent and Mens Rea,” Lucinda Vandervort argues the law of assault should govern sexual assault; that judges believe the myth that when a woman say “no” she really means “yes”; and that only an unequivocal “yes” response from a woman should qualify as legal consent.
It is submitted that Vandervort is wrong on all three issues. She states her proposition thusly:
The proposition is that a statutory criminal law is generally enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred.46
Presumably Vandervort believes that there are some “extra legal norms that authorize infringement of rights protected by the criminal law” which are relevant to the consent question.
Vandervort states that unless prosecutors adopt a fresh approach to the issues of consent and mistaken belief in consent, in which the legal definition of consent is given more emphasis and “societal definitions” of sexual assault proportionately less significance, then community roles and commonly-held myths rather than law will continue to determine the extent to which an individuals’s right to freedom from sexual assault is protected by the criminal law.
Presumably these “extra-legal norms” and “commonly held myths” include the belief that when a woman says “no” she is really saying “yes”. That belief and the belief that some women enjoy being raped are not “commonly-held” by Canadian men. At any rate, a woman who “wanted to be raped”, would not have been “raped” since she would be consenting. The “no” means “no” issue has been dealt with.
Vandervort argues that if consent is presumed unless the woman was shown to have actively resisted in some way (a simple “no” would do), then there is insufficient protection against non-consensual sexual contact. It is submitted that given the nature of the “dating-game” non-consensual sexual contact is a fact of life.
This approach merely serves to affirm dominant social norms governing propriety in the negotiation of sexual transactions. It accords no recognition at all for analytic purposes to the social act of consent that functions as a performative to alter rights and duties between the parties or to the element of “mutuality of assent” that is implied by the term “agreement.” Instead the bare failure to find active interference with “voluntariness” is taken as conclusive on the issue of agreement as a matter of law, and thus consent as a matter of fact flows from failure to find the force or influence used criminal. There is no recognition of complainant (typically female) as a participant in making an “agreement” about what, if any, sexual transaction shall occur. Nor is there recognition of consent as a performative, a social act of communication with normative consequences. The complainant is thus restricted to a merely reactive role and is not recognized as an agent in any proper sense.47
Vandervort fails to recognize that under the MBI there is no “agreement” in the usual sense under the MBI. The man approaches the woman from an inferior bargaining position and the “offer” is implicit in his advance. The MBI “dating game” is such that the man must “pop the question” with respect to consent. An unwanted sexual advance then cannot be identified as unwanted until the rejection of the offer. At that point it may well be that the “crime” has been committed and the woman acts to restore her dignity.
Vandervort cites Christine Boyle’s analysis of the consent question as a problem of recognition of the difference between consent and submission. Boyle distinguishes the terms thusly: consent [is] a social act whereby an agent confers permission on another person, and thus communicates waiver of a legal right to the extent indicated by the permission…submission [is] an observable physical behaviour.48
Vandervort argues that once it is accepted that consent by Boyles’s definition is what is necessary to ground a sexual assault conviction, non-verbal behaviours are of secondary significance. Vandervort emphasizes that the law provides that sexual touching is assaultive unless the person touched agrees to be touched. It does not provide that the man’s action is non-assaultive unless the person touched objects.
A courtship or sexual “negotiation” behaviour under the MBI is not a “transaction.” Buying a car is a “transaction”. Seduction is a more complicated behaviour in which men are at a particular disadvantage: they are seen as “sexual predators.”
Under the MBI the gender roles of men and women are well defined: “good” girls are seduced by men. Women who seduce men are “temptresses.” Vandervort argues:
If an offence is a mens rea offence, the principles of criminal culpability do not permit conviction unless the subjective awareness required by the offence as defined has been proven beyond a reasonable doubt. Sexual assault is a mens rea offence. As a consequence, lack of awareness of non-consent and failure to advert to the possibility of non-consent are complete defence to a charge of sexual assault under Canadian law as it is presently being interpreted by appellate judges. Only when lack of awareness is found to be the result of wilful blindness, a deliberate avoidance of awareness, as was found to have been the case in Sansregret v. The Queen, is there culpability.
Furthermore, in sexual assault cases the reasonable person standard focuses on the type and degree of violence used the assailant and compares it with that used in normal sexual encounters of similar nature. On this basis, inferences are made out whether there is any doubt but that the assailant intended to continue an encounter though aware of non-consent or the possibility of non-consent. Use of such a standard, rather than one that focuses on facts and circumstances related to consent as defined in law, as such, ensure a low conviction rate; normal sex appears to include some quite extra-ordinary forms of interaction, some of which are quite violent. The presence or absence of consent is not seen to be a central issue: rape is “normal”. The raison d’etre of this article is summed up in three words.49
Vandervort asserts that in some sense rape is “normal.” She seems quite surprised that “normal” sex may involve physical activity that could be described as “quite violent”. Normal sex, in fact, does include “some quite extra-ordinary forms of interaction”. That truth must be acknowledged in any attempt to understand rape.
It is unrealistic for Vandervort to relegate “non-verbal behaviours” to “secondary significance”. The MBI prevents men from going door to door asking “Do you want to have sex?”, while it requires that they “kick start” the dating game by securing consent. Men cannot negotiate with a non- prostitute ,under the MBI, the way they can with a car dealer (i.e. with plain verbal language).
That leaves him with only “non-verbal behaviours” in his quiver.The woman , under the MBI, cannot safely respond to a non-verbal question with a verbal response to the effect “Yes, you may proceed to intercourse presently”. Her position as moral vanguard would be compromised. Communication under the MBI is a challenge, a “catch-22”, that some men cannot cope with.
Vandervort recommends a standard that “focuses on facts and circumstances related to consent as defined in law”. It is
submitted that any acceptable standard of behaviour must consider the pressures that the MBI imposes upon women. It is submitted that since we “should not absolve those who are deliberately ignorant”, an acceptable standard cannot allow women to deny their involvement in the decision to have intercourse.
It is submitted that given the nature of the “seduction” that men must perform under the MBI, submission to the sexual advances of men is sufficient to prove consent where the woman is capable of indicating “no” and there has been no express or implied threat perceptible to the reasonable woman.
The assertion that men rape women because they believe that women really want to be raped is nothing more than man-hating rhetoric. The MBI holds that men are morally inferior to women to the extent that the men freely engage in sexual activity without being “seduced.” The presumption that men are “sexual predators” is fallacious.
Both men and women want to have sex. Under the MBI, however, women must appear to be seduced or jeopardize their reputations. Men believe that women really want to have intercourse — not that they really want to be raped.
HOMO-SEXIST ARGUMENT DISCUSSION AND REBUTTAL
Men are bastards IA,IC
Men are pigs IA,IB,II
No means No IA,III
Men fool around IA,II,III
Men lack commitment IA,IB,IE
Men are naturally driven to dominate women IA,IB,IC,III
Men hate women IA,IC,II
Men think that they own women IA,IC,IE,III
Men do not have feelings IA,IC,II,III
Men abuse women psychologically IA,ID,IE,II
Men think “easy” women are undesirable IA,IB
Men think that they are better than women IA,IB,IE,II,III
Men think the law is that they do own their mates IA,ID,III
Men have control over their sexuality IA,IB IC,II,III
Men suffer no sexual-social penalties IA,IB,IC,II
Women do not abuse men IA,IC,II,III
All men are powerful IA,ID,III
Men are not romantic IA,IB,ID
Men only want sex IA,IB,ID,II
1. Engels, Friedrich, “The Origin of the Family, Private Property and the State”, in The Marx-Engels Reader (W. W. Norton and Co. Inc., New York, 1978) p. 734
2. ibid., p. 739
3. ibid., p. 740
4. ibid., p. 745
5. Clark, Lorenne M. G., Rape: the Price of Coercive Sexuality
(Canadian Women’s Press, Toronto, 1977)
6. ibid., p. 114
7. ibid., p. 115-6
8. ibid., p. 125
9. ibid., p. 126-27
10. ibid., p. 128-29
11. ibid., p. 137
12. ibid., p. 24
13. ibid., p. 116
14. ibid., p. 126
15. Vance, Carole S., “Pleasure and Danger: Toward and Politics
of Sexuality”, in Carole S. Vance, ed., Pleasure and Danger:
Exploring Female Sexuality (Rontledge S. Kegan Paul, Boston, 1984) p. 1
16. ibid., p. 2
17. ibid., p. 4
18. Brownmiller, Susan, Against Our Will (Simon and Schuster, New York, 1975) p. 15-16
19. MacKinnon, Catherine, “Feminism, Marxism, Method, and the
State” An Agenda for Theory” Signs Journal 1981-1982, Vol. 7, number 3, p. 515-16
20. ibid., p. 518
21. ibid., p 530-31
22. ibid., p. 533
23. ibid., p. 539-9
24. ibid., p. 541
25. ibid., p. 644
26. ibid., p. 644
27. ibid., op. cit. p. 114
28. MacKinnon op. cit. p. 647
29. ibid., p. 648
30. ibid., p. 653
31. Eisenstien, Zillah, The Radical Future of Liberal Feminism
(Longman Ltd., New York, 1981)
32. ibid., p. 4
33. ibid., p. 5
34. ibid., p. 6
35. ibid., p. 7
36. ibid., p. 14
37. ibid., p. 18
38. ibid., p. 15
39. Engels op. cit. p. 746
40. ibid., pp. 748-49
41. ibid., p. 750
42. Boyle, Christine, Sexual Assault, (Carswell Co. Ltd. Toronto,
1984) p. 82
43. Stuart, Don, Canadian Criminal Law: a treatise 2nd ed.
(Carswell Co. Ltd. Agincourt, 1987)
44. Pickard, Toni, “Culpable mistakes and Rape: Relating Mens Rea
to The Crime” (University of Toronto Law Journal, Volume 30, p. 75 at 82.
45. Vandervort, Lucinda, “Mistake of Law and Sexual Assault:
Consent and Mens Rea” Signs Journal 1987-88, Vol 2 p. 233
46. ibid., p. 243
47. ibid., p. 245
48. ibid., p. 275
49. ibid., p. 287