In her essay ‘Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence’ (1983), Catherine A. MacKinnon asks, “Does the state embody and serve male interests in its form, dynamics, relation to society, and specific policies? How does male power become state power?

Let us take a few examples.

Pakistan Prime Minister Imran Khan made a misogynist statement on the rising cases of sexual and gender-based violence in his country. He said, “If you raise the temptation, young guys have nowhere to go.” What is extremely problematic about such a statement coming from a country’s leader is the obsession over relying on the terribly flawed narrative about how a woman’s attire defines her treatment by the male gaze. If she is dressed in ‘skimpy’ clothes, she is ‘calling for it’. No, she is not. She is exercising her choice of what to wear and what not to wear. Nowhere does her ‘honour’ come into the question by what she chooses to wear.

Pakistan PM Imran Khan says rising foreign debt a 'national security' issue  | Business Standard News
Pakistan Prime Minister Imran Khan made a misogynist statement on the rising cases of sexual and gender-based violence in his country. Image Source: Business Standard

This question of agency and autonomy over anatomy has been raised by many feminists across generations. For instance, as a sociologist, Dorothy E. Smith (2005) understood how the discipline of sociology was male-centric, which had to be explicitly ‘objective’ and ‘scientific’. Citing her own example, Smith says, she could see the difference between her identity as a mother, wife, daughter at play within the domestic sphere and her professional role in the sociology department of her university. The home and the world were spaces where she was performing and conforming (albeit unconsciously or subconsciously) to the ascribed gender roles. She was ‘doing’, ‘undoing’, and ‘redoing’ gender (to borrow Judith Butler’s vocabulary on gender performativity). Soon, Smith realised that women’s knowledge, their epistemology had no space in the ‘masculine-dominated macrolevel sphere’ and the women, who were part of the public sphere, were obligated to emulate or follow the codes, as legitimised by patriarchy. Therefore, a woman’s subjectivity, her standpoint, her agency, her voice – everything was absent or rendered meaningless.

Also read: Navigating Trauma In Courtrooms: The Indian Legal System & Survivors Of Sexual Violence

Moreover, a feminist standpoint is not limited to a woman’s standpoint alone. A standpoint is about the location too, the point from where you make your stand visible or acknowledged or heard. So, the location of class, caste, race, and sexuality cannot be dismissed as secondary within that standpoint. This is why, MacKinnon reiterates that “feminism is not objective, abstract or universal”.

Moreover, a feminist standpoint is not limited to a woman’s standpoint alone. A standpoint is about the location too, the point from where you make your stand visible or acknowledged or heard. So, the location of class, caste, race, and sexuality cannot be dismissed as secondary within that standpoint. This is why, MacKinnon reiterates that “feminism is not objective, abstract or universal”. Whether it is “lesbian feminism, the feminism of women of colour, and socialist feminism”, the struggle to emerge from subordination and subjugation cannot be adequately measured or be pitted against the other as inferior or superior. All experiences are valid and qualified. One school of thought cannot control the other or be the dominant narrative masquerading as a universal norm. This is exactly what hegemonic and toxic masculinity does and must not be replicated in women’s movements.

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The rape discourse

One of the important points raised by MacKinnon in her essay is on the definition of rape in society and the attempts to “reform and enforce rape laws”. The law, she argues, “sees and treats women the way men see and treat women” and within it, “objectivist epistemology is the law of law…that reinforces existing distributions of power”.

In 2012, American feminist philosopher Alison M. Jaggar wrote about how a male faculty member, named David Barnett, had attempted to ‘retaliate’ against a female student who had reported being sexually assaulted by a male graduate student at the philosophy department of the University of Colorado where Jaggar teaches. The victim was questioned and blamed for her ‘behaviour’ on the fateful night. She was accused of being drunk and someone with a ‘questionable’ sexual history. The student complained that during the course of the inquiry, Barnett invaded her privacy and asked her about her sexual behaviour and marital history. Barnett wrote a 38-page document to report the ‘misrepresentation of evidence’ and much of the blame was placed on the woman student (Kuta 2014).

Jaggar wrote, in her plea of Barnett’s suspension, how the smearing of the student’s reputation hurt her and this is why women do not or are afraid to report sexual assault events because their reputation is at stake (Kuta 2014). Now, the general societal norm is that a woman’s reputation is only restricted to her body, the violation of which leads to ignominy. The man, the perpetrator, on the other hand is seldom questioned on his sexual past, his marital history, his propensity to ‘outrage a woman’s modesty’, and so on. Meanwhile, a drunk woman is described as ‘calling it upon herself’.

How To Behave After Sexual Assault?': Tarun Tejpal Rape Verdict Slammed
In Tarun Tejpal’s (journalist, publisher, author, and former editor-in-chief of Tehelka magazine) acquittal, substantive portions of the 527-page order discussed how the complainant did not “behave like a victim of sexual assault”. Image Source: The Quint

Some of the recent cases in the Indian context illustrate the point well. In Tarun Tejpal’s (journalist, publisher, author, and former editor-in-chief of Tehelka magazine) acquittal, substantive portions of the 527-page order discussed how the complainant did not “behave like a victim of sexual assault”. The woman was castigated for not using the right words in her complaint. Apparently, as an “educated journalist”, she did not understand the difference between “picking” and “pulling” up an underwear. Bhanwari Devi’s case (1992) is another eye-opener where the woman was stifled with irrelevant questions that had no relations to the case whatsoever. She belonged to a lower caste community which added to her misery. During the trial, there was a point when the defence lawyer forced Bhanwari Devi to confess that maybe she is confusing intercourse with rape. This is exactly what MacKinnon points out in her argument on how the state institutionalises male power. She writes thus:

“The convergence of sexuality with violence, long used at law to deny the reality of women’s violation, is recognised by rape survivors, with a difference: where the legal system has seen the intercourse in rape, victims see the rape in intercourse.”

So, “Rape is a sex crime that is not a crime when it looks like sex.” This is precisely why marital rape is a grey area in the legal landscape because it fails to recognise women’s subjectivity that invariably contrasts men’s ‘objective’ analysis of rape within the discourse of power dynamics. The difference between, what MacKinnon stresses, ‘sexual victimisation’ and ‘sexual intimacy’ seems alien to the male consciousness and unless and until that is addressed, such debates will continue.

Also read: A Dalit Woman’s Body In The Indian Courtroom

Comprehending a woman’s standpoint

A woman’s consent and her will are important considerations. MacKinnon argues that the standard of criminality is defined by the “man’s perceptions of the woman’s desire (that) often determine whether she is deemed violated”. So, even the sexual crime is seen from a masculinist lens which further gets replicated by the legal system too that accords authentic meaning to the man’s view of the crime instead of the woman’s testimony. Therefore, within the ambit of hermeneutics, the male subjectivity becomes the universal objectivity and a man’s perception is given precedence over a woman’s voice, agency, and choice. Therefore, if a man reads ‘Yes’ in a woman’s ‘No’, it is not sexual violence because the man “did not perceive she did not want him”, and as a consequence, the woman cannot be considered violated. Whose interpretation is given more weightage in law?

This is the reason that in courts, the perpetrators are encouraged ‘to marry’ the victim as the best solution for the woman to escape societal ignominy. Again, one error cannot cancel the other. The perpetrator’s act of violence is condoned because he offered ‘marriage’ to the victim as ‘atonement’. This is where hermeneutics plays a pivotal role. A woman’s resistance is misinterpreted and misrepresented in a patriarchal society. Men are rewarded acquittals, as discussed previously in this paper, because they (court and law) could not “comprehend women’s point of view on sexual encounters.”

A woman’s consent and her will are important considerations. MacKinnon argues that the standard of criminality is defined by the “man’s perceptions of the woman’s desire (that) often determine whether she is deemed violated”. So, even the sexual crime is seen from a masculinist lens which further gets replicated by the legal system too that accords authentic meaning to the man’s view of the crime instead of the woman’s testimony. Therefore, within the ambit of hermeneutics, the male subjectivity becomes the universal objectivity and a man’s perception is given precedence over a woman’s voice, agency, and choice.

Not very long ago, Chief Justice of India S.A. Bobde, while hearing a case of alleged rape said, “if a couple is living together as man and wife, the husband may be a brutal man, but can you call the act of sexual intercourse a rape?” This gives legitimacy to any kind of sexual, physical, and mental violence. In the institution of marriage, marital rape is next to a false idea. For the man, there is no difference between rape and seduction and to propose an outrageous idea that the rapist should marry the victim is condoning marital rape. Marriage is not ‘an amicable solution’ to rape. This is what British sociologist Sylvia Walby explains in the introduction to Theorizing Patriarchy (1990) about how male violence has been systematically condoned and legitimised by the state’s refusal to intervene against it.

It is about time that we begin to consciously understand that the position of neutrality is, in fact, a gender-blind position. The need of the hour is to respect different and differing standpoints that emerge from those sections of society that have been struggling to raise voices against atrocities, injustice, and discrimination. An egalitarian society cannot be envisioned without introspection and receptivity to diversity. The Feminist Standpoint Reader stands testimony to all those battles that have been fought (and continue to be so) for equality, justice, harmony, and coexistence.

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