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Unspeakable Subjects, Impossible Rights: Sexuality, Integrity and Criminal Law

Published online by Cambridge University Press:  09 June 2015

Nicola Lacey
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Extract

As Michel Foucault famously observed, the Nineteenth Century’s construction of sexuality as an unspeakable subject paradoxically generated an extraordinary amount of talk about sex. This paper engages with another paradox in the same field: for my main thesis will be that the criminal law which purports to regulate sexual behaviour has, in an important sense, very little to do with sex at all.

Perhaps this rather startling aspect of my argument explains the difficulty which I had in writing the paper. It probably had more to do, however, with the fact that it was originally written as an inaugural lecture. I hope that you will bear with me if I begin by describing the history of the lecture—for this history is, I think, an integral part of the present paper’s argument.

Writing and delivering an inaugural lecture is, in my experience, a uniquely challenging process, which forces one to think in a particular way about the place one sees one’s work as having in and beyond the academy. For a woman, there is an added complication which probably (though subconsciously) informed the reference to ‘unspeakable subjects’ in my title. The delivery of a lecture is an authoritative activity culturally marked as masculine. This issue about, as it were, the sex of lecturing came home to me very forcefully when I asked a friend to read a draft of the lecture: a few pages into the text, she observed: ‘so far, the tone is more woman than professor….’ Having completed my higher education without once being taught by a woman, it perhaps wasn’t surprising that I was having trouble finding a feminine professorial voice. But my friend’s comment touched also on a deeper issue. This lies in the controversial philosophical and psychoanalytic literature which equates the feminine with a state of lack, abjection and silence. If a woman professor is in some sense ‘speaking as a man,’ and if, as a feminist and a woman, one wants to find an authentic voice and style, the inaugural lecture presents at once the forum in which one’s responsibility to do so is greatest, and that in which success is most elusive. I spoke, then, as a subject of the unspeakable sex, exercising the apparently impossible right of speaking on the unspeakable subject of sex.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 11 , Issue 1 , January 1998 , pp. 47 - 68
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1998 

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References

1. Michel Foucault, The History of Sexuality voi. 1 (Harmondsworth: Penguin, 1981).

2. Much of this work derives its theoretical framework, albeit with modifications, from the psychoanalytic theory of Jacques Lacan: see for example, Toril Moi, ed., The Kristeva Reader (New York: Columbia University Press, 1986); Luce Irigaray, This Sex which Is Not One (Ithaca, NY: Cornell University Press, 1985) [hereinafter “This Sex’]; Luce Irigaray, Speculum of the Other Woman (Ithaca, NY: Cornell University Press, 1985) [hereinafter ‘Speculum’]; Drucilla Cornell, Beyond Accommodation (New York: Routledge, 1991). For a critical appraisal of the influence of such work in legal theory, see Nicola Lacey, “Feminist Legal Theory Beyond Neutrality?” (1995) 48 Current Legal Problems 1; and in political theory, see Nancy Fraser, Justice Interruptus (New York: Routledge, 1997) at ch. 6.

3. See for example Jennifer Temkin, Rape and the Legal Process (London: Sweet and Maxwell, 1987).

4. The direction of such work is perhaps best exemplified by Catharine MacKinnon’s Feminism Unmodified (Cambridge, MA: Harvard University Press, 1987).

5. For discussion and critique of these tendencies, see Suzanne Gibson, “The Discourse of Sex/War” (1993) 1 Feminist Legal Stud. 179; Emily Jackson, “Catharine MacKinnon and Feminist Jurisprudence” (1992) 19 J. of L. and Soc’y 195; Judith Butler, Excitable Speech (New York: Routledge, 1997) at ch. 2; Wendy Brown, States of Injury (Princeton, NJ: Princeton University Press, 1995) at ch. 4.

6. For an excellent discussion of the use of satire as a strategy of rape prevention, see Sharon Marcus, “Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention” in Judith Butler & Joan W. Scott, eds., Feminists Theorize the Political (New York: Routledge, 1992).

7. Sexual Offences Act 1956 ss. 10, 11.

8. See supra note 4; Catharine MacKinnon, The Sexual Harassment of Working Women (New Haven, CN: Yale University Press, 1979); and Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989) [hereinafter ‘Feminist Theory’].

9. One of the first British scholars to express caution about the reformist optimism of feminist legal theorists was Carol Smart: see in particular Carol Smart, Feminism and the Power of Law (London: Routledge, 1989); for further discussion of the relationship between critical, Utopian and reformist projects, see Nicola Lacey, “Normative Reconstruction in Socio-Legal Theory” (1996) 5 Social and Legal Stud. 131.

10. See Jane Larson, ‘“Women Understand So Little, They Call My Good Nature Deceit’: A Feminist Rethinking of Seduction” (1993) 93 Colum. L. Rev. 375.

11. See for example Carol Smart, Law, Crime and Sexuality (London: Sage, 1995); Sue Lees, Carnal Knowledge (London: Hamish Hamilton, 1996); and supra note 3.

12. See for example Leslie J. Moran, The (Homo)sexuality of Law (London: Routledge, 1996); Lucia Zedner, “Regulating Sexual Offences within the Home” in Ian Loveland, ed., Frontiers of Criminality (London: Sweet and Maxwell, 1995) at 173; Katherine O’Donovan, “Defences for Battered Women Who Kill” (1991) 18 J. of L. and Soc’y 219; Celia Wells, “Battered Woman Syndrome and Defences to Homicide” (1994) 14 Legal Stud. 266; Ngaire Naffine, “Possession: Erotic Love in the Law of Rape” (1994) 57 Modem L. Rev. 10; Ngaire Naffine, “The Body Bag” in Ngaire Naffine & Rosemary Owens, eds., Sexing the Subject of Law (Sydney: Law Book Company, 1997) 79 [hereinafter ‘Body Bag’].

13. My analysis is drawn from a wide range of offences contained in the Sexual Offences Acts of 1956, 1967 and 1985 and the Sexual Offences (Amendment) Act 1976.

14. Supra note 7, s.44.

15. Homosexual Offences and Prostitution (1957) Cmnd 247, London: HMSO.

16. See for example Nicola Lacey, Celia Wells & Dirk Meure, Reconstructing Criminal Law (London: Butterworths, 1990) at ch. 5; Andrew Ashworth, Principles of Criminal Law, 2d ed. (Oxford: Clarendon Press, 1995) at 25–28 and 337–58.

17. Since the enactment of the Sexual Offences Act 1967, consensual adult male same-sex sexual conduct has been lawful, but only when it takes place ‘in private’ (s.1).

18. Good examples here include the offence of indecent assault (Sexual Offences Act 1956, ss. 14 & 15), which turns on the jury’s assessment of what ‘right-thinking people’ would regard as indecent (R. v. Court, [1987] 1 ALL ER 120); the various offences relating to prostitution contained in the Sexual Offences Act 1956; the offence of kerb-crawling created by the Sexual Offences Act 1985, s. 1; the offence of incest; and the recent rejection of consent as a defence to assaults occasioning actual bodily harm in the course of (male homosexual) sado-masochistic sexual conduct (R. v. Brown, [1993] 2 ALL ER 73). For comment, see ‘Body Bag’, supra note 12; Matthew Weait, “Fleshing It Out” in Lionel Bentley & Leo Flynn, eds., Law and the Senses (London: Pluto Press, 1996) 160.

19. In England and Wales, the principal elements of the offence of rape are defined in s. 1 of the Sexual Offences Act 1956, as amended, as follows:

1. (1) It is an offence for a man to rape a woman or another man.

(2) A man commits rape if—

(a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and

(b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.

(3) A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband.

20. The ‘harm principle’ derives from John Stuart Mill’s essay On Liberty (1859; reprint, Harmondsworth: Penguin, 1974); for critical discussion of the difficulty of establishing both its determinacy and its independence from the principle of utility, see Elizabeth Frazer & Nicola Lacey, The Politics of Community (London: Harvester Wheatsheaf, 1993) at ch. 2; Ted Honderich, “On Liberty and morality-dependent harms” (1982) 30 Pol. Studies 504. The liberal literature on concepts of freedom and autonomy is, of course, vast; see in particular Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford University Press, 1989); and Alan Ryan, ed., The Idea of Freedom (Oxford: Oxford University Press, 1979).

21. For a very clear expression of the commodity theory of sexual autonomy, and hence of the view of rape as an offence against the proprietary interest in control over one’s body, see Donald A. Dripps, “Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent” (1992) 92 Colum. L. Rev. 1780:1 am grateful to John Samson for referring me to this article.

22. Supra note 19.

23. On the relationship between the body and ownership, see Jennifer Church, “Ownership and the Body” in Diana Tietjens Meyers, ed., Feminists Rethink the Self (Boulder, CO: Westview Press, 1997) 85, and Rosalyn Diprose, “The gift, sexed body property and the law” in Pheng Cheah, David Fraser & Judith Grbich, eds., Thinking Through the Body of the Law (New York: New York University Press, 1996) 120.

24. See for example, Moira Gatens, Imaginary Bodies (London: Routledge, 1996); Elizabeth Grosz, Volatile Bodies (Sydney: Allen & Unwin, 1994). These books have a distinctively feminist orientation, but they also draw upon a number of non-feminist philosophical traditions, and in particular the ideas of Deleuze, Foucault, Freud, Merleau-Ponty, Nietzsche and Spinoza. These and other books exemplify an increasing pre-occupation with the body in feminist tìieory and a turn from the category of ‘gender’ to that of ‘sex’ in feminist analysis. For recent examples, see the essays in Meyers, ed., supra note 23; Cheah et al., supra note 23; and Naffine & Owens, eds., supra note 12; see also Iris Marion Young, Throwing Like a Girl and Other Essays in Feminist Philosophy and Social Theory (Bloomington: Indiana University Press, 1990) at Part Three. For an early analysis of the relevance of the body for feminist legal theory, see Zillah Eisenstein, The Female Body and the Law (Berkeley: University of California Press, 1988).

25. This feminist argument has a close analogue in theories about the operation of racial oppression through the objectification and exoticisation of the non-white body. In the legal sphere, see for example Angela P. Harris, “Race and Essentialism in Feminist Legal Theory” (1990) 42 Stan. L. Rev. 581; Patricia J. Williams, “On Being the Object of Property” in Patricia J. Williams, ed., The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1991) at 216.

26. Grosz, supra note 24 at 22.

27. I shall return below to the question of how far this remains a convincing account of legal discourse.

28. See ‘Speculum’, supra note 2; “This Sex’, supra note 2; Marine Lover of Friedrich Nietzsche (New York: Columbia University Press, 1991) [hereinafter ‘Marine Lover’].

29. See Gender Trouble (New York: Routledge, 1990); Bodies that Matter (New York: Routledge, 1993); Butler, supra note 5.

30. For a more detailed discussion of this paradox, see Nicola Lacey, “On the Subject of Sexing the Subject” in Naffine & Owens, eds., supra note 12, 65.

31. Citations to these works are provided at supra note 29; Butler’s most recent work, supra note 5, makes yet more explicit the links between the linguistically oriented notion of gender as performance and me body; it draws on Pierre Bourdieu’s notion of die ‘habitus’ to construct an argument about me embodied nature of performativity.

32. This is perhaps most vividly and lyrically represented in ‘Marine Lover’, supra note 28.

33. See ‘This Sex’, supra note 2.

34. On the tension between (equally problematic) conceptions of body as ‘thing’ and body as ‘person’, see Diprose, supra note 23; Susan J. Brison, “Outliving Oneself: Trauma, Memory and Personal Identity” in Meyers, ed., supra note 23,12; Church, supra note 23.

35. Furthermore, until the Sexual Offences Act 1956 was amended by the Criminal Justice and Public Order Act 1994, only women could be raped.

36. See Lacey, supra note 2; Alan Norrie, Crime, Reason and History (London: Butterworths, 1993).

37. A somewhat different and perhaps yet more radical critique of the unitary and rationalist conception of the legal subject, and of the Cartesian image of the body as animated by the soul, is that deriving from psychoanalysis. Legal theorists influenced in particular by the work of Jacques Lacan have argued not only that the human subject is split on its entry into language, but also that the structure of language, which inevitably marks the body, is masculine (see Drucilla Cornell, Beyond Accommodation (London and New York: Routledge, 1991). My reservations about die Lacanian view of language are discussed elsewhere (Lacey, supra note 2). Though a full discussion of psychoanalytic accounts is beyond the scope of this paper, I hope that it is evident that a complex view of the body as marked by (among other things) language is necessary if feminist critique is to avoid both dualism and essentialism.

38. For reasons of space, I shall concentrate in what follows not on the idea of wrongdoing implicit in the definition of rape but rather on that of harm. However, I think that a more comprehensive analysis of the idea of wrongdoing would also generate interesting insights, notably into the representation of the male body in criminal law and the criminal process.

39. Feminist Theory, supra note 8 at ch. 9; Robin West, “Legitimating the Illegitimate: A Comment on ‘Beyond Rape’” (1993) 93 Colum. L. Rev. 1442; Supra note 3; Beverley Brown, Michele Burman & Lynn Jamieson, Sex Crimes on Trial (Edinburgh: Edinburgh University Press, 1993). For a thorough exploration and feminist critique of the ideas of consent and contract in political theory, see Carole Pateman, The Sexual Contract (Oxford: Polity Press, 1988).

40. Brown, supra note 5 at 163; cf. Judith Butler’s analysis of the individualism of models of consent: supra note 5 at 95.

41. Smart, supra note 9 at ch. 2; Smart, supra note 11 at chs. 4–5.

42. The very recent inclusion of male homosexual rape within English criminal law means that it is too soon to know how these factors will affect the construction of male victims of rape in the trial process. My analysis would suggest, however, that they will encounter very similar processes of objectification/identification to those described here in relation to women.

43. Church, supra note 23; Diprose, supra note 23. The sexualisation of women’s speech has been thoroughly analysed in Catharine MacKinnon’s work on pornography and on sexual harassment: see for example, ‘Feminist Theory’, supra note 8 at ch. 11; see also Butler, supra note 5 at 82–86.

44. ‘Body Bag’, supra note 12; see also Jennifer Nedelsky, “Law, Boundaries and the Bounded Self” (1990) 30 Representations 162.

45. The same applies, though for more complex reasons, to people from particular racial groups: see Williams, supra note 25.

46. This argument is developed in more detail below. On ideas of relational autonomy, see Jennifer Nedelsky, “Reconceiving Autonomy” (1989) 1 Yale J. of L. and Feminism 7 [hereinafter ‘Reconceiving Autonomy’]; Jennifer Nedelsky, “Meditations on Embodied Autonomy” (1995) 2 Graven Images 159 [hereinafter ‘Mediations’]; for a critical discussion of Nedelsky’s ideas, see Marilyn Friedman, “Autonomy and Social Relationships” in Meyers, ed., supra note 23,40.

47. The law of criminal libel, of course, did recognise damage to reputation long before the Twentieth Century. However, this recognition of a property-like right in reputation was premised on a social order organised around relatively rigid distinctions of status, and was hence rather different from the recent developments which I have mentioned.

48. On the importance of finding a community to acknowledge trauma, see Susan J. Brison, “Outliving Oneself: Trauma, Memory and Personal Identity” in Meyers, ed., supra note 23, 1. In making this argument, I should not be taken to suggest that victims’ narratives have the unassailable status of truth; indeed, I concur with Wendy Brown’s argument that feminist theories which rely heavily on the ‘discovery’ of ‘authentic women’s experience’ engage in a form of essentialism (Brown, supra note 5 at ch. 2). Rather, as I hope will become clear in the final section, my aim is to reconstruct the trial process as a political space in which precisely the contestation of meanings which Brown envisages might take place. I do, however, believe that it is crucial to this broader project to trace the ways in which current legal and procedural arrangements close off the articulation of certain arguments and points of view.

49. The Imaginary Domain (New York: Routledge, 1995).

50. In affirming that legal arrangements may positively facilitate the expression of desire, Cornell appears to be breaking with Lacanian views about the structural relationship between desire and law as obstacle: see Renata Salecl, The Spoils of Freedom (London: Routledge, 1994).

51. Cornell is one among many feminists who have explored the idea of integrity. See for example Margaret Urban Walker, “Picking Up Pieces: Lives, Stories and Integrity” in Meyers, ed., supra note 23 at 62.

52. For contrasting views on this point, see Berlin, supra note 20; Frazer & Lacey, supra note 20 at 53–60, 124–7.

53. ‘Reconceiving Autonomy’, supra note 46; ‘Meditations’, supra note 46.

54. Friedman, supra note 46 at 56–8. Friedman takes the view that recent liberal version of autonomy do allow for the importance of social relationships to autonomous life, but she remains agnostic on the question of whether such relationships are in some sense definitional of an autonomous life.

55. On these problems, see Brison, supra note 48 at 28–9; Friedman, supra note 46 at 44–5; Friedman suggests that Nedelsky’s framework needs to be supplemented by a conception of the distinction between substantive and procedural independence, and by the recognition that only some relationships foster autonomy. I am in broad agreement with Friedman on the latter point, but do not think that this jeopardises the validity of Nedelsky’s analysis in the area of rape.

56. West, supra note 39 at 1448; cf. Brison, supra note 48 at 18, citing rape as ‘social murder’.

57. See above, text preceding supra note 8 and supra note 47.

58. On possible ways of reconstructing the idea of consent, see Simon Bronnit, “The Direction of Rape Law in Australia: Toward a Positive Consent Standard” (1994) 18 Crim. L. J. 249; for critical discussion of consent, see Katherine O’Donovan, “With Sense, Consent or Just a Con? Legal Subjects in the Discourse of Autonomy” in Naffine & Owens, eds., supra note 12,47. The revised laws of sexual assault now prevailing in Canada and in Australian states such as New South Wales and Victoria come considerably closer to meeting these ideals than does the law of England and Wales.

59. See Ruth Hall & Lisa Longstaff, “Defining Consent” (1997) 147 New L. J. 840.

60. On the iniquitous use of sexual history evidence in English and Welsh rape trials, see supra note 3.

61. Mary Douglas, Purity and Danger (London: Routledge and Kegan Paul, 1966).

62. Supra note 51.

63. See Brown, supra note 5.