Intimate Dissidence: Assange, Foucault and (Feminist) Rape Discourse

lol foucault

At Critical Legal Thinking, Narnia Bohler-​Muller takes issue with the narrow leg­alism of the often ‘sur­real’ com­ment­aries on the Assange con­tro­versy. In amongst the de­nun­ci­ation and counter-​denunciation she de­tects an un­der­cur­rent of dis­cip­linary power. On this ac­count, the ap­par­ently ‘very broad’ rape laws of Sweden, like ef­forts in South Africa to force HIV tests on rape sus­pects, en­force di­cho­tomies under the guise of legal form­ality, and so cast the ac­cused as im­pur­ities of the so­cial body:

The ar­gu­ment is that the law is not an ap­pro­priate in­stru­ment to deal with mat­ters of sexual in­timacy as gen­eral prin­ciples can never do justice to the par­tic­u­larity of the situ­ation and the nu­ances of sexual game-​playing. Such is the forceful and vi­olent nature of The Law. To de­pend on legal reg­u­la­tion to re­solve all the com­plex­ities and quirks of human re­la­tions is a dan­gerous pre­cedent and en­forces the dual­isms of guilt/​innocence and normal/​perverted. It is such dual­isms that serve to re-​produce Foucauldian ‘do­cile bodies’ that do not threaten or resist the status quo…

…The problem is that in such a way harm­less con­duct may be pun­ished merely be­cause we do not ap­prove of it. If Assange is HIV neg­ative, which one as­sumes he is, and neither of the com­plaints fall preg­nant, then his failure to wear a condom caused no harm. Or are we now choosing to punish po­ten­tial harm or the risk of harm? Or, per­haps, pun­ishing the failure to be a con­sid­erate lover, or the nar­cissism and promis­cuity of a man who fucks help­less women and then leaves?

This ends up turning sexual as­sault into a form of dis­sent, a re­fusal “to ex­press com­fort with any kind of sub­ser­vi­ence to Authority“. As be­fore, Assange is not really the issue, merely a bystander and stand-​in. But, amidst her cau­tion against law as a sub­sti­tute for polit­ical cri­tique and her re­jec­tion of mar­gin­al­ising dis­course (points well-​taken), Bohler-Muller’s use of him to mo­bilise broader ar­gu­ments about a Foucauldian ana­lytics of rape raises some stark problems.


First, fem­in­ists like Jaclyn Friedman are not in­volved in a leg­al­istic fal­lacy. Their em­phasis has been over­whelm­ingly on the im­plic­a­tions of the lan­guage used to de­fend Assange and the rape myths and apo­lo­getics that have been propag­ated as part of that. Bohler-Muller’s char­ac­ter­isa­tion of the charges is telling in this light, since fem­in­ists are simply not ar­guing that “the failure to be a con­sid­erate lover” should be a crim­inal of­fence, still less that we should em­power po­lice of­ficers to en­force ‘consent-​plus’ (ap­par­ently the idea that “if sex takes place out­side of a loving and in­timate re­la­tion­ship, there is a strong in­dic­a­tion that con­sent is lacking”). To speak of these par­tic­ular charges as if they were merely a ques­tion of im­polite sex and not rape–rape’ is already to pre­judge the issue and to mis­un­der­stand it as spe­cific­ally about Assange, rather than about gen­eral rape cul­ture and its prevalence.

Feminists have pointed out that holding someone down or pen­et­rating them while they are asleep qual­i­fies rather easily as non-​consensual sex. They have sug­gested that having at­tended gender studies courses does not make an ac­cuser un­trust­worthy. They have roundly and fre­quently agreed that the charges against Assange are sus­pi­cious and likely politically-​motivated. And then they have said that this sus­pi­cion should not lead to the re­gur­git­a­tion of tropes about the per­fidity of wo­man­kind or the agendas of man-​hating lesbots.

Those are rel­evant points that have everything to do with the politics of rape, and very little to do with a fet­ish­istic at­ti­tude to the statute book. In more gen­eral terms, fem­in­ists do agitate for higher con­vic­tion rates and fre­quently cri­ti­cise the cur­rent state of evidence-​gathering, clas­si­fic­a­tion and pro­sec­u­tion, as well as ex­istent so­cial pre­ju­dices to­wards rape vic­tims. In doing so, they dis­cuss the legal system and its mani­fest fail­ings. But these are ar­gu­ments about the re­form of the law based on fem­inist polit­ical and moral po­s­i­tions, not a par­roting of sub­jectiv­ities cre­ated by it.

Which isn’t to say that there aren’t is­sues around fem­inism and law to be ex­plored and cri­tiqued, not least whether cam­paigning for a more suc­cessful pat­tern of pro­sec­u­tion is the best way to end rape (de­pendent as that ar­gu­ment is on a de­terrent model, per­haps to the det­ri­ment of at­tempts to trans­form so­cial norms in a more sys­tem­atic way). But these are ques­tions of strategy and politics, and fem­in­ists will take dif­ferent po­s­i­tions. What doesn’t seem sus­tain­able is to in­voke the melee around Assange to in­dict some fem­in­ists as faux-‘Law-Doers’ who “work within an im­per­sonal system of suf­foc­ating ‘nor­m­al­isa­tion’ that aims to bring about a subtle but ef­fective im­pos­i­tion of uni­form be­ha­viour on ‘law-​abiding’, sub­ser­vient in­di­viduals”.

Second, it is not at all clear which sub­stantive po­s­i­tion on rape we might re­cruit Foucault for. Bohler-​Muller de­pends primarily on his ar­gu­ments re­garding the tyranny of mor­ality. In it­self that rather com­prom­ises the com­par­ison with rape, since it cannot be ser­i­ously ar­gued that the he­ge­monic at­ti­tude to rape in our so­ci­eties is somehow a fem­inist one. But his own state­ments sug­gest that the al­leg­a­tions against Assange would very much still have counted, both eth­ic­ally and leg­ally, as crimes. In a de­bate on the func­tions of psy­chi­atry and the uses of ‘trauma’, what Foucault pro­posed was that “rape be­longs to the realm of phys­ical vi­ol­ence and must simply be treated as such”. And speaking in 1978 on the ho­mo­sexual move­ment and the age of con­sent in France, he de­veloped a rather rel­evant distinction:

First, there is the ques­tion of sexual choice that must be faced. I say freedom of sexual choice and not freedom of sexual acts be­cause there are sexual acts like rape which should not be per­mitted whether they in­volve a man and a women or two men. I don’t think we should have as our ob­jective some sort of ab­so­lute freedom or total liberty of sexual action.

The ques­tion of what counts as a dis­cip­linary power and what as an eman­cip­atory one is as blurry here as else­where. But it is at least ar­gu­able that Foucault’s agenda was to combat the pro­lif­er­a­tion of legal codes as in­stru­ments of a dis­cip­lining mor­ality and, as he put it in the dis­cus­sion of rape as phys­ical as­sault, to con­test the ‘pre­pon­derant place’ given to sexual or­gans in moral dis­course. This would re­clas­sify rape as a crime, but not ob­lit­erate it or con­fine it to some vari­ation on ‘sexual game-​playing’. Consent, it seems, still rather con­sti­tuted a political-​ethical limit.

Read this way, Foucault’s pro­ject is en­tirely com­pat­ible with at least some forms of fem­inist anti-​rape politics. For Sharon Marcus, identi­fying and un­doing the grammar of vi­ol­ence in rape scripts (those im­plicit un­der­stand­ings of ap­pro­pri­ately mas­cu­line and fem­inine re­sponses to a rape situ­ation) should be central to self-​defence against rape cul­ture. Break the role-​identification (the dis­cip­linary power) and you are fighting rape.

More than a decade ago, Ann Cahill pro­posed a dif­ferent Foucauldian reading, one which sug­gested that really chal­len­ging socio-​cultural dis­courses of the fem­inine and mas­cu­line meant going beyond a view of rape as just like any other as­sault. Instead, in the prop­erly Foucauldian way, we should be paying at­ten­tion to the ways in which rape, and the threat of rape, ex­tend far beyond the loc­al­ised ef­fects vis­ible to the law and help con­sti­tute fe­male bodies as in­cite­ments and in­no­cents. Doing so opens up a dis­cursive space for bodies which fight back.

Catharine MacKinnon once re­sponded to the idea that rape was about power and not sex with a dis­arming ques­tion. If it’s not about sex, why didn’t he just punch her in the face? Making rape equi­valent to a punch in the face, whether in law or in moral dis­course, re­coils from its legacies and their im­pact on our forms of thought and ac­tion. And so it risks ig­noring them. The al­tern­ative is not simply to act out the roles as­signed us by an ima­gined Law, but to en­gage law as a prac­tice, a tool and a site of contestation.

Reposted from the Disorder of Things.

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