“[R]ape is most of the time understood as an offense against morality and not as a crime against the bodily integrity of a woman. Other forms of sexual violence are often understood and articulated in the law as an outrage upon the modesty of a woman or against her dignity. There have been significant developments in international law moving away from understanding sexual violence as a crime against the dignity of a woman, to an invasion or an attack on the body of a person. Such developments are yet to be incorporated in the national laws of many countries around the world, including Africa.”
—Vahida Nainar, Litigation Strategies for Sexual Violence in Africa (The Redress Trust: London, 2012).
Here we have two definitions of rape, not merely different but opposed; one frames it as “a crime against the dignity of a woman,” the other as “an invasion or attack on the body of a person.” The shift in object between the two—from “woman” to “person”—is significant, as are the contexts in which they were created—one self-consciously universal, global, committed to abstractions supposed to be valued in any human social arrangement; the other, particularistic, national, negotiated according to cultural and contingent notions of right and wrong. Immanent in these competing accounts of sexual violence is a host of dichotomies that have historically been gendered:
Women // People
Particular // Universal
Moral // Legal
Subjective // Objective
Emotional // Physical
These legal theories imply a choice: is rape an invasion of the flesh? Or a violation of the mind? Such a distinction is, obviously, false; rape participates in both components of each of these oppositions. It is an attack on one’s agency and on one’s body. Any accurate definition of rape will acknowledge this duality, and incorporate two necessary elements: consent (the subjective experience of desiring or not desiring) and breach (any physical act that proceeds despite the absence of consent). These categories ally themselves rather neatly with those outlined above:
Consent // Breach
Contemporary feminists have developed a comprehensive theory of consent, and it gets a lot of play in our media and our praxis. This emphasis makes a certain sense. In a country where the majority of assaults are committed by acquaintances and are not accompanied by catastrophic injury, it has been necessary to foreground the mental anguish caused by sexual assault to dismantle the notion that rape is only “legitimate” if committed by a stranger with a gun. And our culture’s distorted ideals of female sexuality have required us to offer alternative visions of women as active, desiring subjects who know what they want and are capable of articulating it. For these reasons and others I’d never argue that consent isn’t central to our work. But has our problematizing of consent been matched by the development of a comparably complete concept of breach? Or have we neglected the second, but equally crucial, prong of the definition of rape?
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