Mackinnon - Towards Feminist Jurisprudence

Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence
Author(s): Catharine A. MacKinnon

Source: Signs , Summer, 1983, Vol. 8, No. 4 (Summer, 1983), pp. 635-658
Published by: The University of Chicago Press
Stable URL: https://www.jstor.org/stable/3173687
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VIEWPOINT
Feminism, Marxism, Method, and the

State: Toward Feminist Jurisprudence
Catharine A. MacKinnon
Feminism has no theory of the state. It has a theory of power: sexu

gendered as gender is sexualized. Male and female are created th
the erotization of dominance and submission. The man/woman dif-
ference and the dominance/submission dynamic define each other. This
is the social meaning of sex and the distinctively feminist account o
gender inequality.1 Sexual objectification, the central process within this
For A. D. and D. K. H. In addition to all those whose help is acknowledged in the first
part of this article, "Feminism, Marxism, Method, and the State: An Agenda for Theory,"
Signs:Journal of Women in Culture and Society 7, no. 3 (Spring 1982): 515-44 (hereafter cited
as part 1), my students and colleagues at Yale, Harvard, and Stanford contributed pro-
foundly to the larger project of which both articles are parts. Among them, Sonia E.
Alvarez, Jeanne M. Barkey, Paul Brest, Ruth Colker, Karen E. Davis, Sharon Dyer, Tom
Emerson, Daniel Gunther, Patricia Kliendienst Joplin, Mark Kelman, Duncan Kennedy,
John Kaplan, Lyn Lemaire, Mira Marshall, Rebecca Mark, Martha Minow, Helen M. A.
Neally, Lisa Rofel, Sharon Silverstein, Dean Spencer, Laurence Tribe, and Mary Whisner
stand out vividly in retrospect. None of it would have happened without Lu Ann Carte
and David Rayson. And thank you, Meg Baldwin, Annie McCombs, and Janet Spector.
Marxism appears in lower case, Black in upper case, for reasons explained in part 1.
1. Much has been made of the distinction between sex and gender. Sex is thought the
more biological, gender the more social. The relation of each to sexuality varies. Since
believe sexuality is fundamental to gender and fundamentally social, and that biology is its
social meaning in the system of sex inequality, which is a social and political system that
does not rest independently on biological differences in any respect, the sex/gender dis-
tinction looks like a nature/culture distinction. I use sex and gender relatively inter-
changeably.
[Signs: Journal of Women in Culture and Society 1983, vol. 8, no. 4]
? 1983 by The University of Chicago. All rights reserved. 0097-9740/83/0804-0003$01.00
635

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636 MacKinnon Feminism, Marxism, Method, and the State
dynamic, is at once epistemological and political.2 The feminist theor

knowledge is inextricable from the feminist critique of power beca
the male point of view forces itself upon the world as its way o
prehending it.
The perspective from the male standpoint3 enforces woman's de
nition, encircles her body, circumlocutes her speech, and describes
life. The male perspective is systemic and hegemonic. The conten
the signification "woman" is the content of women's lives. Each sex ha
role, but their stakes and power are not equal. If the sexes are uneq
and perspective participates in situation, there is no ungendered rea
or ungendered perspective. And they are connected. In this cont
objectivity-the nonsituated, universal standpoint, whether claim
aspired to-is a denial of the existence or potency of sex inequality t
tacitly participates in constructing reality from the dominant poin
view. Objectivity, as the epistemological stance of which objectificati
the social process, creates the reality it apprehends by defining as kn
edge the reality it creates through its way of apprehending it. Sexu
metaphors for knowing are no coincidence.4 The solipsism of this a
2. This analysis is developed in part 1. I assume here your acquaintance with

arguments there.
3. Male is a social and political concept, not a biological attribute. As I use it,
nothing whatever to do with inherency, preexistence, nature, inevitability, or body as s
is more epistemological than ontological, undercutting the distinction itself, given
power to conform being with perspective. (See part 1, pp. 538-39, n. 56.) The perspe
from the male standpoint is not always each man's opinion, although most men adh
it, nonconsciously and without considering it a point of view, as much because it
sense of their experience (the male experience) as because it is in their interest. It is r
for them. A few men reject it; they pay. Because it is the dominant point of vie
defines rationality, women are pushed to see reality in its terms, although this denie
vantage point as women in that it contradicts (at least some of) their lived exper
Women who adopt the male standpoint are passing, epistemologically speaking. This
uncommon and is rewarded. The intractability of maleness as a form of dom
suggests that social constructs, although they flow from human agency, can be less p
than nature has proven to be. If experience trying to do so is any guide, it may be ea
change biology than society.
4. In the Bible, to know a woman is to have sex with her. You acquire carnal kno
edge. Many scholarly metaphors elaborate the theme of violating boundaries to appr
ate from inside to carry off in usable form: "a penetrating observation," "an in
analysis," "piercing the veil." Mary Ellman writes, "The male mind . . . is assum
function primarily like a penis. Its fundamental character is seen to be aggression, an
quality is held essential to the highest or best working of the intellect" (Thinking a
Women [New York: Harcourt, Brace, Jovanovich, 1968], p. 23). Feminists are begi
to understand that to know has meant to fuck. See Evelyn Fox Keller, "Gender and Sc
Psychoanalysis and Contemporary Thought 1, no. 3 (1978): 409-33, esp. 413; and Helen Rob
ed., Doing Feminist Research (London: Routledge & Kegan Paul, 1981). The term "to f
uniquely captures my meaning because it refers to sexual activity without distingui
rape from intercourse. At least since Plato's cave, visual metaphors for knowing have
central to Western theories of knowledge, the visual sense prioritized as a mode of ve
tion. The relationship between visual appropriation and objectification is now only b

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Signs Summer 1983 637
proach does not undercut its sincerity, but it is interest tha

method.
Feminism criticizes this male totality without an account of our ca-
pacity to do so or to imagine or realize a more whole truth. Feminism
affirms women's point of view by revealing, criticizing, and explaining its
impossibility. This is not a dialectical paradox. It is a methodological
expression of women's situation, in which the struggle for consciousness
is a struggle for world: for a sexuality, a history, a culture, a community,
a form of power, an experience of the sacred. If women had conscious-
ness or world, sex inequality would be harmless, or all women would be
feminist. Yet we have something of both, or there would be no such
thing as feminism. Why can women know that this-life as we have
known it-is not all, not enough, not ours, not just? Now, why don't all
women?5
ning to be explored. "The knowledge gained through still photographs will always be ... a
semblance of knowledge, a semblance of wisdom, as the act of taking pictures is a sem-
blance of wisdom, a semblance of rape. The very muteness of what is, hypothetically, com-
prehensible in photographs is what constitutes their attraction and provocativeness" (Susan
Sontag, On Photography [New York: Farrar, Straus & Giroux, 1980], p. 24). See part 1, pp.
539-40, n. 59.
5. Feminism aspires to represent the experience of all women as women see it, yet
criticizes antifeminism and misogyny, including when it appears in female form. This
tension is compressed in the epistemic term of art "the standpoint of all women." We are
barely beginning to unpack it. Not all women agree with the feminist account of women's
situation, nor do all feminists agree with any single rendition of feminism. Authority of
interpretation-the claim to speak as a woman-thus becomes methodologically complex
and politically crucial for the same reasons. Consider the accounts of their own experience
given by right-wing women and lesbian sadomasochists. How can patriarchy be diminishing
to women when women embrace and defend their place in it? How can dominance
and submission be violating to women when women eroticize it? Now what is the point of
view of the experience of all women? Most responses in the name of feminism, stated in
terms of method, either (1) simply regard some women's views as "false consciousness," or
(2) embrace any version of women's experience that a biological female claims as her own.
The first approach treats some women's views as unconscious conditioned reflections of
their oppression, complicitous in it. Just as science devalues experience in the process of
uncovering its roots, this approach criticizes the substance of a view because it can be
accounted for by its determinants. But if both feminism and antifeminism are responses to
the condition of women, how is feminism exempt from devalidation by the same account?
That feminism is critical, and antifeminism is not, is not enough, because the question is
the basis on which we know something is one or the other when women, all of whom share
the condition of women, disagree. The false consciousness approach begs this question by
taking women's self-reflections as evidence of their stake in their own oppression, when the
women whose self-reflections are at issue question whether their condition is oppressed at
all. The second response proceeds as if women are free. Or, at least, as if we have consider-
able latitude to make, or to choose, the meanings if not the determinants of our situation.
Or, that the least feminism can do, since it claims to see the world through women's eyes, is
to validate the interpretations women choose. Both responses arise because of the un-
willingness, central to feminism, to dismiss some women as simply deluded while granting
other women the ability to see the truth. These two resolutions echo the object/subject split:

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The practice of a politics of all women in the face of its theoret

impossibility is creating a new process of theorizing and a new form
theory. Although feminism emerges from women's particular exper
ence, it is not subjective or partial, for no interior ground and few if
aspects of life are free of male power. Nor is feminism objective, abst
or universal.6 It claims no external ground or unsexed sphere of gen
alization or abstraction beyond male power, nor transcendence of
specificity of each of its manifestations. How is it possible to have
engaged truth that does not simply reiterate its determinations? Di
engaged truth only reiterates its determinations. Choice of method
choice of determinants-a choice which, for women as such, has been
unavailable because of the subordination of women. Feminism does not
begin with the premise that it is unpremised. It does not aspire to per
suade an unpremised audience because there is no such audience. It
project is to uncover and claim as valid the experience of women, t
major content of which is the devalidation of women's experience.
This defines our task not only because male dominance is perhaps
the most pervasive and tenacious system of power in history, but becau
it is metaphysically nearly perfect.7 Its point of view is the standard f
objectivity (my consciousness is true, yours false, never mind why) or subjectivity (I know
am right because it feels right to me, never mind why). Thus is determinism answered with
transcendence, traditional marxism with traditional liberalism, dogmatism with toleranc
The first approach claims authoriity on the basis of its lack of involvement, asserting its vi
independent of whether the described concurs-sometimes because it does not. It also ha
no account, other than its alleged lack of involvement, of its own ability to provide such
account. How can some women see the truth and other women not? The second approach
claims authority on the basis of its involvement. It has no account for different int
pretations of the same experience or any way of choosing among conflicting ones, includ
ing those between women and men. It tends to assume that women, as we are, have pow
and are free in exactly the wsays feminism, substantively, has found we are not. Thus, t
first approach is one-sidedly outside xwhen there is no outside, the second one-sided
inside when someone (probably a woman) is inside everything, including every facet
sexism, racism, and so on. So our problem is this: the false consciousness approach cann
explain experience as it is experienced by those who experience it. The alternative can on
reiterate the terms of that experience. This is only one way in which the object/subject spli
is fatal to the feminist enterprise.
6. To stress: the feminist criticism is not that the objective stance fails to be tru
objective because it has social content, all the better to exorcise that content in the purs
of the more truly point-of-viewless viewpoint. The criticism is that objectivity is large
accurate to its/the/a wvorld, which wor-ld is criticized; and that it becomes more accurate a
the power it represents and extends becomes more total. Analogous criticisms have aris
in the natural sciences, without being seen as threatening to the "science of society" project
or calling into question that project's tacit equation between natural and social objects o
knowledge. What if we extend Heisenberg's uncertainty principle to social theor
(Welrner Heisenberg, The Physical Principles of the Quantum Theory [Chicago: University of
Chicago Press, 1930], pp. 4, 20, 62-65). What of the axiomatic method after G6del's proo
(See Ernest Nagel and James R. Newman, Gidel'.s Proof [New York: NewT York Universi
Press, 1958].)
7. Andrea Dworkin helped me express this.

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point-of-viewlessness, its particularity the meaning of unive

force is exercised as consent, its authority as participation, its
as the paradigm of order, its control as the definition of
Feminism claims the voice of women's silence, the sexua
eroticized desexualization, the fullness of "lack," the centralit
marginality and exclusion, the public nature of privacy, the
our absence. This approach is more complex than transgres
transformative than transvaluation, deeper than mirror-imag
tance, more affirmative than the negation of our negativity.
materialist nor idealist; it is feminist. Neither the transcendence of
liberalism nor the determination of materialism works for us. Idealism is
too unreal; women's inequality is enforced, so it cannot simply be
thought out of existence, certainly not by us. Materialism is too real
women's inequality has never not existed, so women's equality never has
That is, the equality of women to men will not be scientifically provable
until it is no longer necessary to do so. Women's situation offers no
outside to stand on or gaze at, no inside to escape to, too much urgency
to wait, no place else to go, and nothing to use but the twisted tools that
have been shoved down our throats. If feminism is revolutionary, this is
why.
Feminism has been widely thought to contain tendencies of liberal
feminism, radical feminism, and socialist feminism. But just as socialist
feminism has often amounted to marxism applied to women, liberal
feminism has often amounted to liberalism applied to women. Radical
feminism is feminism. Radical feminisnm-after this, feminism
unmodified-is methodologically post-marxist.8 It moves to resolve the
8. I mean to imply that contemporary feminism that is not methodologically post-

marxist is not radical, hence not feminist on this level. For example, to the extent Mary
Daly's GynlEcology: The Metaethics of Radical Feminism (Boston: Beacon Press, 1978) is
idealist in method-meaning that the subordination of women is an idea such that to think
it differently is to change it-it is formally liberal no matter how extreme or insightful. To
the extent Shulamith Firestone's analysis (The Dialectic of Sex: The Casefor Feminist Revolution
[New York: William Morrows & Co., 1972]) rests on a naturalist definition of gender,
holding that women are oppressed by our bodies rather than their social meaning, her
radicalism, hence her feminism, is qualified. Susan Griffin's Pornography and Silence: Cul-
ture's Revolt against Nature (San Francisco: Harper & Row Publishers, 1982) is classically
liberal in all formal respects including, for instance, the treatment of pornography and eros
as a distinction that is fundamentally psychological rather than interested, more deeply a
matter of good and bad (rnorality) than of power and powerlessness (politics). Andrea
Dworkin's work, esp. Pornography: Men Possessing Women (New York: Perigee Books, 1981),
and Adrienne Rich's poetry and essays, exemplify feminism as a methodological de-
parture. This feminism seeks to define and pursue women's interest as the fate of all
women bound together. It seeks to extract the truth of women's commonalities out of the
lie that all women are the same. If whatever a given society defines as sexual defines
gender, and if gender means the subordination of women to men, "woman" means-is not
qualified or undercut by-the uniqueness of each woman and the specificity of race, class,
time, and place. In this sense, lesbian feminism, the feminism of women of color, and
socialist feminism are converging in a feminist politics of sexuality, race, and class, with a
left to right spectrum of its own. This politics is stlruggling for a practice of unity that does

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marxist-feminist problematic on the level of method. Because its method

emerges from the concrete conditions of all women as a sex, it dissolves
the individualist, naturalist, idealist, moralist structure of liberalism, the
politics of which science is the epistemology. Where liberal feminism sees
sexism primarily as an illusion or myth to be dispelled, an inaccuracy to
be corrected, true feminism sees the male point of view as fundamental
to the male power to create the world in its own image, the image of its
desires, not just as its delusory end product. Feminism distinctively as
such comprehends that what counts as truth is produced in the interest
of those with power to shape reality, and that this process is as pervasive
as it is necessary as it is changeable. Unlike the scientific strain in marx-
ism or the Kantian imperative in liberalism, which in this context share
most salient features, feminism neither claims universality nor, failing
that, reduces to relativity. It does not seek a generality that subsumes its
particulars or an abstract theory or a science of sexism. It rejects the
approach of control over nature (including us) analogized to control
over society (also including us) which has grounded the "science of soci-
ety" project as the paradigm for political knowledge since (at least) Des-
cartes. Both liberalism and marxism have been subversive on women's
behalf. Neither is enough. To grasp the inadequacies for women
liberalism on one side and marxism on the other is to begin to co
prehend the role of the liberal state and liberal legalism9 within a po
marxist feminism of social transformation.
As feminism has a theory of power but lacks a theory of the state, so
marxism has a theory of value which (through the organization of work
in production) becomes class analysis, but a problematic theory of the
state. Marx did not address the state much more explicitly than he did
women. Women were substratum, the state epiphenomenon.10 Engels,
not depend upon sameness without dissolving into empty tolerance, including tolerance of
all it exists to change whenever that appears embodied in one of us. A new community
begins here. As critique, women's communality describes a fact of male supremacy, of sex
"in itself": no woman escapes the meaning of being a woman within a gendered social
system, and sex inequality is not only pervasive but may be universal (in the sense of never
having not been in some forml) although "intelligible only in ... locally specific forms" (M.
Z. Rosaldo, "The Use and Abuse of Anthropology: Reflections on Feminism and Cross-
cultural Understanding," Signs: Journal of Women in Culture and Society 5, no. 3 [Spring
1980]: 389-417, 417). For women to become a sex "for ourselves" moves community to the
level of vision.
9. See Karl Klare, "Law-Making as Praxis," Telos 12, no. 2 (Summer 1979): 123-35;
Judith Shklar, Legalism (Cambridge, Mass.: Harvard University Press, 1964). To examine
law as state is not to decide that all relevant state behavior occurs in legal texts. I do think
that legal decisions expose power on the level of legitimizing rationale, and that law,, as
wor-ds in power, is central in the social erection of the liberal state.
10. Karl Marx, Capital, Selected Works, 3 vols. (Moscow: Progress Publishers, 1969),
2:120, 139-40; The German Ideology (New York: International Publishers, 1972), pp. 48-52;
Introduction to Critique of Hegel's Philosophy of Right, ed. Joseph O'Malley, t-ans. Annette Jolin
(Cambridge: Cambridge University Press, 1970), p. 139; Marx to P. V. Annenkov, 1846, in
rhe Poverty of Philosophy (New York: International Publishers, 1963), pp. 179-93, 181.

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who frontally analyzed both, and together, presumed the su

of women in every attempt to reveal its roots, just as he pr
something like the state, or state-like social conditions, in ev
to expose its origins." Marx tended to use the term "politica
to refer to the state or its laws, criticizing as exclusively po
pretations of the state's organization or behavior which took
generis. Accordingly, until recently, most marxism has ten
sider political that which occurs between classes, that is, to
"the political" instances of the marxist concept of inequality.
sense, the marxist theory of social inequality has been its the
tics. This has not so much collapsed the state into society
goes far in that direction) as conceived the state as determin
totality of social relations of which the state is one determi
termining part-without specifying which, or how much, is
In this context, recent marxist work has tried to grasp the
of the institutional state: how it wields class power, or tran
society, or responds to approach by a left aspiring to rulers
changes. While liberal theory has seen the state as emanating
traditional marxism has seen the state as expressing power c
elsewhere, recent marxism, much of it structuralist, has trie
state power as specific to the state as a form, yet integral to a
social whole understood in class terms. This state is found
autonomous." This means that the state, expressed through its
functionaries, has a definite class character, is definitely capitalist or
socialist, but also has its own interests which are to some degree in-
dependent of those of the ruling class and even of the class structure.12
The state as such, in this view, has a specific power and interest, termed
"the political," such that class power, class interest expressed by and in
the state, and state behavior, although inconceivable in isolation from
one another, are nevertheless not linearly or causally linked or strictly
coextensive. Such work locates "the specificity of the political" in a
11. I am criticizing Engels's assumptions about sexuality and women's place, and his
empiricist method, and suggesting that the two are linked. Friedrich Engels, Origin of the
Family, Private Property and the State (New York: International Publishers, 1942).
12. Representative works include Fred Block, "The Ruling Class Does Not Rule:
Notes on the Marxist Theory of the State," Socialist Revolution 33 (May-June 1977): 6-28;
Ralph Miliband, The State in Capitalist Society (New York: Basic Books, 1969); Nicos
Poulantzas, Classes in Contemporary Capitalism (London: New Left Books, 1975), and Political
Power and Social Classes (London: New Left Books, 1975); Goran Therborn, What Does the
Ruling Class Do When It Rules? (London: New Left Books, 1978); Norberto Bobbio, "Is
There a Marxist Theory of the State?" Telos 35 (Spring 1978): 5-16. Theda Skocpol, States
and Social Revolution: A Comparative Analysis of France, Russia and China (Cambridge: Cam-
bridge University Press, 1979), pp. 24-33, ably reviews much of this literature. Applica-
tions to law include Isaac Balbus, "Commodity Form and Legal Form: An Essay on the
'Relative Autonomy' of the Law," Law and Society Review 11, no. 3 (Winter 1977): 571-88;
Mark Tushnet, "A Marxist Analysis of American Law," Marxist Perspectives 1, no. 1 (Spring
1978): 96-116; and Klare (n. 9 above).

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mediate "region"'3 between the state as its own ground of power (which
alone, as in the liberal conception, would set the state above or apart
from class) and the state as possessing no special supremacy or priority in
terms of power, as in the more orthodox marxist view.
The idea that the state is relatively autonomous, a kind of first
among equals of social institutions, has the genius of appearing to take a
stand on the issue of reciprocal constitution of state and society while
straddling it. Is the state essentially autonomous of class but partly de-
termined by it, or is it essentially determined by class but not exclusively
so? Is it relatively constrained within a context of freedom or relatively
free within a context of constraint?14 As to who or what fundamentally
moves and shapes the realities and instrumentalities of domination, and
where to go to do something about it, what qualifies what is as ambiguous
as it is crucial. Whatever it has not accomplished, however, this literature
has at least relieved the compulsion to find all law-directly or con-
volutedly, nakedly or clothed in unconscious or devious rationalia-to be
simply bourgeois, without undercutting the notion that it is de-
terminately driven by interest.
A methodologically post-marxist feminism must confront, on our
own terms, the issue of the relation between the state and society, within
a theory of social determination adequate to the specificity of sex. Lack-
ing even a tacit theory of the state of its own, feminist practice has
instead oscillated between a liberal theory of the state on the one hand
and a left theory of the state on the other. Both treat law as the mind of
society: disembodied reason in liberal theory, reflection of material
interest in left theory. In liberal moments the state is accepted on its own
terms as a neutral arbiter among conflicting interests. The law is actually
or potentially principled, meaning predisposed to no substantive out-
come, thus available as a tool that is not fatally twisted. Women implicitly
become an interest group within pluralism, with specific problems of
mobilization and representation, exit and voice, sustaining incremental
gains and losses. In left moments, the state becomes a tool of dominance
and repression, the law legitimizing ideology, use of the legal system a
form of utopian idealism or gradualist reform, each apparent gain de-
ceptive or cooptive, and each loss inevitable.
Applied to women, liberalism has supported state intervention on
behalf of women as abstract persons with abstract rights, without
scrutinizing the content of these notions in gendered terms. Marxism
13. Poulantzas's formulation follows Althusser. Louis Althusser and Etienne Balibar,
Reading Capital, trans. Ben Brewster (London: New Left Books, 1968). For Poulantzas, the
"specific autonomy which is characteristic of the function of the state . . . is the basis of the
specificity of the political" (Political Power and Social Classes [n. 12 above], pp. 14, 46).
Whatever that means. On structural causality between class and state, see p. 14.
14. See Ernesto Laclau's similar criticism of Miliband in Politics and Ideology in Marxist
Theory (London: New Left Books, 1977), p. 65.

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applied to women is always on the edge of counseling abdicat

state as an arena altogether-and with it those women who
does not ignore or who are, as yet, in no position to ignore i
has so far accepted these constraints upon its alternatives
state, as primary tool of women's betterment and status tran
without analysis (hence strategy) for it as male; or civil society
women has more closely resembled a state of nature. The sta
the law, has been either omnipotent or impotent: everything
The feminist posture toward the state has therefore been
on issues central to women's survival: rape, battery, pornogr
titution, sexual harassment, sex discrimination, abortion
Rights Amendment, to name a few. Attempts to reform
rape laws, for example, have tended to build on the model of
perpetrator and the violent act, as if the fact that rape is a cr
that the society is against it, so law enforcement would r
legitimize it. Initiatives are accordingly directed toward
police more sensitive, prosecutors more responsive, judge
ceptive, and the law, in words, less sexist. This may be progre
liberal or the left senses, but how is it empowering in the fem
Even if it were effective in jailing men who do little differen
nondeviant men do regularly, how would such an approach a
en's rapability? Unconfronted are why women are raped and
the state in that. Similarly, applying laws against battery to
although it can mean life itself, has largely failed to address
the strategy for state intervention, the conditions that produ
systematically express themselves violently toward wom
whose resistance is disabled, and the role of the state in this
Criminal enforcement in these areas, while suggesting th
battery are deviant, punishes men for expressing the images
linity that mean their identity, for which they are otherwi
elevated, venerated, and paid. These men must be stoppe
does that change them or reduce the chances that there will b
them? Liberal strategies entrust women to the state. Left th
dons us to the rapists and batterers. The question for femin
only whether there is a meaningful difference between t
whether either is adequate to the feminist critique of rape an
systemic and to the role of the state and the law within that
Feminism has descriptions of the state's treatment of
difference, but no analysis of the state as gender hierarchy.
know. What, in gender terms, are the state's norms of accou
sources of power, real constituency? Is the state to some deg
mous of the interests of men or an integral expression of the
state embody and serve male interests in its form, dynamics,
society, and specific policies? Is the state constructed upo
ordination of women? If so, how does male power become st

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Can such a state be made to serve the interests of those upon whose
powerlessness its power is erected? Would a different relation between
state and society, such as may pertain under socialism, make a dif-
ference? If not, is masculinity inherent in the state form as such, or is
some other form of state, or some other way of governing, distinguish-
able or imaginable? In the absence of answers to such questions,
feminism has been caught between giving more power to the state in
each attempt to claim it for women and leaving unchecked power in the
society to men. Undisturbed, meanwhile, like the assumption that
women generally consent to sex, is the assumption that we consent to this
government. The question for feminism, for the first time on its own
terms, is: what is this state, from women's point of view?
As a beginning, I propose that the state is male in the feminist
sense.'5 The law sees and treats women the way men see and treat
women. The liberal state coercively and authoritatively constitutes the
social order in the interest of men as a gender, through its legitimizing
norms, relation to society, and substantive policies. It achieves this
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. Substantively, the way
the male point of view frames an experience is the way it is framed by
state policy. 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. If part
of the kick of pornography involves eroticizing the putatively prohibited,
obscenity law will putatively prohibit pornography enough to maintain
its desirability without ever making it unavailable or truly illegitimate.
The same with prostitution. As male is the implicit reference for human,
maleness will be the measure of equality in sex discrimination law. To
the extent that the point of abortion is to control the reproductive
sequelae of intercourse, so as to facilitate male sexual access to women,
access to abortion will be controlled by "a man or The Man."1' Gender,
elaborated and sustained by behavioral patterns of application and ad-
ministration, is maintained as a division of power.
Formally, the state is male in that objectivity is its norm. Objectivity
is liberal legalism's conception of itself. It legitimizes itself by reflecting
its view of existing society, a society it made and makes by so seeing it,
15. See Susan Rae Peterson, "Coercion and Rape: The State as a Male Protection
Racket," in Feminism and Philosophy, ed. Mary Vetterling-Braggin, Frederick A. Elliston,
and Jane English (Totowa, N.J.: Littlefield, Adams & Co., 1977), pp. 360-71; Janet Rifkin,
"Toward a Theory of Law Patriarchy," Harvard Women's Law Journal 3 (Spring 1980):
83-92.
16. Johnnie Tillmon, "Welfare Is a Women's Issue," Liberation News Service (Februar
26, 1972), in America's Working Women: A Documentary History, 1600 to the Present, ed. Rosa
lyn Baxandall, Linda Gordon, and Susan Reverby (New York: Vintage Books, 1976), p
357-58.

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and calling that view, and that relation, practical rationality. I

is measured by point-of-viewlessness, what counts as reason
which corresponds to the way things are. Practical will mean
can be done without changing anything. In this framework,
legal interpretation becomes "to perfect the state as mirror
ety."17 Objectivist epistemology is the law of law. It ensures t
will most reinforce existing distributions of power when it
adheres to its own highest ideal of fairness. Like the science
this epistemological stance can not see the social specificity of
method or its choice to embrace that which it reflects. Such l
reflects a society in which men rule women; it rules in a ma
phallus means everything that sets itself up as a mirror."
form, which unites scientific knowledge with state control in
tion of what law is, institutionalizes the objective stance as ju
A closer look at the substantive law of rape19 in light of suc
ment suggests that the relation between objectification (und
the primary process of the subordination of women) and the
the state is the relation between the personal and the political
of government. This is not because the state is presumptively
of politics. It is because the state, in part through law, instit
male power. If male power is systemic, it is the regime.
17. Laurence Tribe, "Constitution as Point of View" (Harvard Law

bridge, Mass., 1982, mimeographed), p. 13.
18. Madeleine Gagnon, "Body I," in New French Feminisms, ed. Elain
Isabelle de Courtivron (Amherst, Mass.: University of Massachusetts Press
Turns on the mirroring trope, which I see as metaphoric analyses of the ep
political dimension of objectification, are ubiquitous in feminist writing: "In
the dressing where the walls are covered with mirrors. Where mirrors are lik
and the women reflect the judgments of mirrors" (Susan Griffin, Woman an
Roaring Inside Her [New York: Harper & Row Publishers, 1979], p. 155).
Daly, Beyond God the Father: Toward a Philosophy of Women's Liberation (Boston
1975), pp. 195, 197; Sheila Rowbotham, Women's Consciousness, Man's Wor
worth: Pelican Books, 1973), pp. 26-29. "She did suffer, the witch/ trying t
the looking/ glass, she forgot/ someone was in the way" (Michelene, "Reflex
Rowbotham, p. 2). Virginia Woolf wrote the figure around ("So I reflecte
"the necessity that women so often are to men" of serving as a looking glass
can "see himself at breakfast and at dinner at least twice the size he really
doubled sexual/gender meaning: "Whatever may be their use in civilized soc
are essential to all violent and heroic action. That is why Napoleon and M
insist so emphatically upon the inferiority of women, for if they were not
would cease to enlarge" (A Room of One's Own [New York: Harcourt, Brace &
p. 36).
19. Space limitations made it necessary to eliminate sections on pornography, sex
discrimination, and abortion. For the same reason, most supporting references, including
those to case law, have been cut. The final section accordingly states the systemic im-
plications of the analysis more tentatively than I think them, but as strongly as I felt I could,
on the basis of the single substantive examination that appears here.

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II
Feminists have reconceived rape as central to women's condition in

two ways. Some see rape as an act of violence, not sexuality, the threat of
which intimidates all women.20 Others see rape, including its violence, as
an expression of male sexuality, the social imperatives of which define all
women.21 The first, formally in the liberal tradition, comprehends rape as
a displacement of power based on physical force onto sexuality, a pre-
existing natural sphere to which domination is alien. Thus, Susan
Brownmiller examines rape in riots, wars, pogroms, and revolutions;
rape by police, parents, prison guards; and rape motivated by racism-
seldom rape in normal circumstances, in everyday life, in ordinary re-
lationships, by men as men.22 Women are raped by guns, age, white
supremacy, the state-only derivatively by the penis. The more feminist
view to me, one which derives from victims' experiences, sees sexuality as
a social sphere of male power of which forced sex is paradigmatic. Rape
is not less sexual for being violent; to the extent that coercion has become
integral to male sexuality, rape may be sexual to the degree that, and
because, it is violent.
The point of defining rape as "violence not sex" or "violence against
women" has been to separate sexuality from gender in order to affirm
sex (heterosexuality) while rejecting violence (rape). The problem re-
mains what it has always been: telling the difference. The convergence
of sexuality with violence, long used at law to deny the reality of women's
violation, is recognized by rape survivors, with a difference: where the
legal system has seen the intercourse in rape, victims see the rape in
intercourse. The uncoerced context for sexual expression becomes as
elusive as the physical acts come to feel indistinguishable.23 Instead of
20. Susan Brownmiller, Against Our Will: Men, Women and Rape (New York: Simon &
Schuster, 1976), p. 15.
21. Diana E. H. Russell, The Politics of Rape: The Victim's Perspective (News York: Stein &
Day, 1977); Andrea Medea and Kathleen Thompson, Against Rape (New York: Farrar,
Straus & Giroux, 1974); Lorenne M. G. Clark and Debra Lewis, Rape: The Price of Coercive
Sexuality (Toronto: The Women's Press, 1977); Susan Griffin, "Rape: The All-American
Crime," Ramparts (September 1971), pp. 26-35; Ti-Grace Atkinson connects rape with "the
institution of sexual intercourse" (4lmazon Odyssey: The First Collection of Writings by the
Political Pioneer of the Women's Movement [New York: Links Books, 1974], pp. 13-23).
Kalainu ya Salaam, "Rape: A Radical Analysis from the African-American Perspective," in
Our0 Women Keep Our Skies from Falling (News Orleans: Nkombo, 1980), pp. 25-40.
22. Racism, clearly, is everyday life. Racism in the United States, by singling out Black
men for allegations of rape of white women, has helped obscure the fact that it is men who
rape women, disproportionately wsomen of color.
23. "Like other victims, I had problems with sex, after the rape. There was no way
that Arthur could touch me that it didn't remind me of having been raped by this guy I
never saw" (Carolyn Craven, "No More Victims: Carolyn Craven Talks about Rape, and
about What Women and Men Can Do to Stop It," ed. Alison Wells [Berkeley, Calif., 1978,
mimeographed]), p. 2.

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asking, what is the violation of rape, what if we ask, what is the

tion of intercourse? To tell what is wrong with rape, explain wha
about sex. If this, in turn, is difficult, the difficulty is as instructiv
difficulty men have in telling the difference when women
Perhaps the wrong of rape has proven so difficult to articulate2
the unquestionable starting point has been that rape is definabl
tinct from intercourse, when for women it is difficult to distinguish
under conditions of male dominance.25
Like heterosexuality, the crime of rape centers on penetration.2
The law to protect women's sexuality from forcible violation/
expropriation defines the protected in male genital terms. Women
resent forced penetration. But penile invasion of the vagina may be les
pivotal to women's sexuality, pleasure or violation, than it is to ma
sexuality. This definitive element of rape centers 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 crim
against female monogamy than against female sexuality. Property con-
cepts fail fully to comprehend this,27 however, not because women
sexuality is not, finally, a thing, but because it is never ours. The momen
we "have" it-"have sex" in the dual sexuality/gender sense-it is lost
ours. This may explain the male incomprehension that, once a woma
has had sex, she loses anything when raped. To them we have nothing to
lose. Dignitary harms, because nonmaterial, are remote to the leg
mind. But women's loss through rape is not only less tangible, it is les
24. Pamela Foa, "What's Wrong with Rape?" in Vetterling-Braggin, Elliston, and
English, eds. (n. 15 above), pp. 347-59; Michael Davis, "What's So Bad about Rape?
(paper presented at Annual Meeting of the Academy of Criminal Justice Sciences, Louis-
ville, Ky., March 1982).
25. "Since we would not want to say that there is anything morally wrong with sexu
intercourse per se, we conclude that the wrongness of rape rests with the matter of th
woman's consent" (Carolyn M. Shafer and Marilyn Frye, "Rape and Respect," i
Vetterling-Braggin, Elliston, and English, eds. [n. 15 above], p. 334). "Sexual contact is n
inherently harmful, insulting or provoking. Indeed, ordinarily it is something of which
are quite fond. The difference between ordinary sexual intercourse and rape is that ord
nary sexual intercourse is more or less consented to while rape is not" (Davis [n. 24 above
p. 12).
26. Sec. 213.0 of the Model Penal Code (Official Draft and Revised Comments 1980),
like most states, defines rape as sexual intercourse with a female who is not the wife of the
perpetrator "with some penetration however slight." Impotency is sometimes a defense.
Michigan's gender-neutral sexual assault statute includes penetration by objects (sec.
520a[h]; 520[b]). See Model Penal Code, annotation to sec. 213.1(d) (Official Draft and
Revised Comments 1980).
27. Although it is true that men possess women and that women's bodies are, socially,
men's things, I have not analyzed rape as men treating women like property. In the
manner of many socialist-feminist adaptations of marxian categories to women's situation,
that analysis short-circuits analysis of rape as male sexuality and presumes rather than
develops links between sex and class. We need to rethink sexual dimensions of property as
well as property dimensions of sexuality.

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existent. It is difficult to avoid the conclusion that penetration itself is

known to be a violation and that women's sexuality, our gender defini-
tion, is itself stigmatic. If this is so, the pressing question for explanation
is not why some of us accept rape but why any of us resent it.
The law of rape divides the world of women into spheres of consent
according to how much say we are legally presumed to have over sexual
access to us by various categories of men. Little girls may not consent;
wives must. If rape laws existed to enforce women's control over our own
sexuality, as the consent defense implies, marital rape would not be a
widespread exception,28 nor would statutory rape proscribe all sexual
intercourse with underage girls regardless of their wishes. The rest of us
fall into parallel provinces: good girls, like children, are unconsenting,
virginal, rapable; bad girls, like wives, are consenting, whores, unrap-
able. The age line under which girls are presumed disabled from with-
holding consent to sex rationalizes a condition of sexual coercion women
never outgrow. As with protective labor laws for women only, dividing
and protecting the most vulnerable becomes a device for not protecting
everyone. Risking loss of even so little cannot be afforded. Yet the pro-
tection is denigrating and limiting (girls may not choose to be sexual) as
well as perverse (girls are eroticized as untouchable; now reconsider the
data on incest).
If the accused knows us, consent is inferred. The exemption for
rape in marriage is consistent with the assumption underlying most ad-
judications of forcible rape: to the extent the parties relate, it was not
really rape, it was personal.29 As the marital exemptions erode, pre-
clusions for cohabitants and voluntary social companions may expand.
In this light, the partial erosion of the marital rape exemption looks less
like a change in the equation between women's experience of sexual
violation and men's experience of intimacy, and more like a legal ad-
justment to the social fact that acceptable heterosexual sex is increasingly
not limited to the legal family. So although the rape law may not now
always assume that the woman consented simply because the parties are
legally one, indices of closeness, of relationship ranging from nodding
acquaintance to living together, still contraindicate rape. Perhaps this
reflects men's experience that women they know meaningfully consent
to sex with them. That cannot be rape; rape must be by someone else,
28. For an excellent summary of the currient state of the mariital exemption, see
Joanne Schulman, "State-by-State Infor-iation on Marital Rape Exemption Laws," in Rape
in lMariage, Diana E. H. Russell (News York: Macmillan Publishing Co., 1982), pp. 375-81.
29. On "social inter-action as an element of consent," in a voluntary social companion
context, see Mlodel Penal Code, sec. 213.1. "The prior social interaction is an indicator of
consent in addition to actor's and victim's behavioral inter-action during the commission of
the offense" (Wallace Loh, "Q: What Has Refoirm of Rape Legislation Wrought? A: Truth
in Criminal Labeling,"Journal q S(ocial Issues 37, no. 4 [1981]: 28-52, 47). Pe-haps consent
should be an affirimative defense, pleaded and proven by the defendant.

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someone unknown. But women experience rape most often by

know.30 Men believe that it is less awful to be raped by some
close to: "The emotional trauma suffered by a person victimi
individual with whom sexual intimacy is shared as a normal p
ongoing marital relationship is not nearly as severe as that suf
person who is victimized by one with whom that intima
shared."31 But women feel as much, if not more, traumatized
raped by someone we have known or trusted, someone we ha
at least an illusion of mutuality with, than by some stranger
interest is it to believe that it is not so bad to be raped by so
has fucked you before as by someone who has not? Disallowin
of rape in marriage may also "remove a substantial obstacle t
sumption of normal marital relations."32 Depending upon you
normal. Note that the obstacle to normalcy here is not the r
law against it. Apparently someone besides feminists finds se
timization and sexual intimacy not all that contradictory. Som
think women and men live in different cultures.
Having defined rape in male sexual terms, the law's problem, which
becomes the victim's problem, is distinguishing rape from sex in specific
cases. The law does this by adjudicating the level of acceptable forc
starting just above the level set by what is seen as normal male sexual
behavior, rather than at the victim's, or women's, point of violation. Rap
cases finding insufficient force reveal that acceptable sex, in the legal
perspective, can entail a lot of force. This is not only because of the way
specific facts are perceived and interpreted, but because of the way the
injury itself is defined as illegal. Rape is a sex crime that is not a crime
when it looks like sex. To seek to define rape as violent, not sexual, is
understandable in this context, and often seems strategic. But assau
that is consented to is still assault; rape consented to is intercourse. The
substantive reference point implicit in existing legal standards is th
sexually normative level of force. Until this norm is confronted as such,
no distinction between violence and sexuality will prohibit more in
30. Pauline Bart found that women were more likely to be raped-that is, less able to
stop a rape in progress-when they knew their assailant, particularly when they had a prio
or current sexual relationship ("A Study of Women Who Both Were Raped and Avoide
Rape,"Journal of Social Issues 37, no. 4 [1981]: 123-37, 132). See also Linda Belden, "Wh
Women Do Not Report Sexual Assault" (City of Portland Public Service Employment
Program, Portland Women's Crisis Line, Portland, Ore., March 1979, mimeographed)
Diana E. H. Russell and Nancy Howell, "The Prevalence of Rape in the United State
Revisited," in this issue; and Menachem Amir, Patterns in Forcible Rape (Chicago: Universit
of Chicago Press, 1971), pp. 229-52.
31. Answer Brief for Plaintiff-Appellee at 10, People v. Brown, 632 P.2d 1025 (Colo
1981).
32. Brown, 632 P.2d at 1027 (citing Comment, "Rape and Battery between Husband
and Wife," Stanford Law Review 6 [1954]: 719-28, 719, 725).

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stances of women's experienced violation than does the existing defini-

tion. The question is what is seen as force, hence as violence, in the sexual
arena. Most rapes, as women live them, will not be seen to violate women
until sex and violence are confronted as mutually definitive. It is not only
men convicted of rape who believe that the only thing they did different
from what men do all the time is get caught.
The line between rape and intercourse commonly centers on some
measure of the woman's "will." But from what should the law know
woman's will? Like much existing law, Brownmiller tends to treat wi
a question of consent and consent as a factual issue of the presence
force.33 Proof problems aside, force and desire are not mutually ex
sive. So long as dominance is eroticized, they never will be. Women
socialized to passive receptivity; may have or perceive no alternative
acquiescence; may prefer it to the escalated risk of injury and
humiliation of a lost fight; submit to survive. Some eroticize dominan
and submission; it beats feeling forced. Sexual intercourse may
deeply unwanted-the woman would never have initiated it-yet
force may be present. Too, force may be used, yet the woman may w
the sex-to avoid more force or because she, too, eroticizes dominance.
Women and men know this. Calling rape violence, not sex, thus evades,
at the moment it most seems to confront, the issue of who controls
women's sexuality and the dominance/submission dynamic that has
defined it. When sex is violent, women may have lost control over what is
done to us, but absence of force does not ensure the presence of that
control. Nor, under conditions of male dominance, does the presence of
force make an interaction nonsexual. If sex is normally something men
do to women, the issue is less whether there was force and more whether
consent is a meaningful concept.34
To explain women's gender status as a function of rape, Brown-
miller argues that the threat of rape benefits all men.35 She does not
specify in what way. Perhaps it benefits them sexually, hence as a gender:
male initiatives toward women carry the fear of rape as support for
persuading compliance, the resulting appearance of which has been
called consent. Here the victims' perspective grasps what liberalism
applied to women denies: that forced sex as sexuality is not exceptional
in relations between the sexes but constitutes the social meaning of gen-
der: "Rape is a man's act, whether it is male or a female man and
whether it is a man relatively permanently or relatively temporarily; and
being raped is a woman's experience, whether it is a female or a male
woman and whether it is a woman relatively permanently or relatively
33. Brownmiller (n. 20 above), pp. 8, 196, 400-407, 427-36.

34. See Carol Pateman, "Women and Consent," Political Theory 8, no. 2 (May 1980):
149-68.
35. Brownmiller (n. 20 above), p. 5.

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temporarily."36 To be rapable, a position which is social, not

defines what a woman is.
Most women get the message that the law against rape is virtually
unenforceable as applied to them. Our own experience is more often
delegitimized by this than the law is. Women radically distinguish be-
tween rape and experiences of sexual violation, concluding that we have
not "really" been raped if we have ever seen or dated or slept with or
been married to the man, if we were fashionably dressed or are no
provably virgin, if we are prostitutes, if we put up with it or tried to get it
over with, if we were force-fucked over a period of years. If we probably
couldn't prove it in court, it wasn't rape. The distance between most
sexual violations of women and the legally perfect rape measures th
imposition of someone else's definition upon women's experiences.
Rape, from women's point of view, is not prohibited; it is regulated
Even women who know we have been raped do not believe that the lega
system will see it the way we do. We are often not wrong. Rather than
deterring or avenging rape, the state, in many victims' experiences, per-
petuates it. Women who charge rape say they were raped twice, th
second time in court. If the state is male, this is more than a figure of
speech.
The law distinguishes rape from intercourse by the woman's lack of
consent coupled with a man's (usually) knowing disregard of it. A
feminist distinction between rape and intercourse, to hazard a beginning
36. Shafer and Frye (n. 25 above), p. 334. Battery of wives has been legally separated
from marital rape not because assault by a man's fist is so different from assault by a penis.
Both seem clearly violent. I am suggesting that both are also sexual. Assaults are often
precipitated by women's noncompliance with gender requirements. See R. Emerson
Dobash and Russell Dobash, Violence against Wives: A Case against the Patriarchy (New York:
Free Press, 1979), pp. 14-20. Nearly all incidents occur in the home, most in the kitchen or
bedroom. Most murdered women are killed by their husbands, most in the bedroom. The
battery cycle accords with the rhythm of heterosexual sex (see Leonore Walker, The Bat-
tered Woman [New York: Harper & Row Publishers, 1979], pp. 19-20). The rhythm of
lesbian S/M appears similar (Samois, eds., Coming to Power [Palo Alto, Calif.: Up Press,
1981]). Perhaps most interchange between genders, but especially violent ones, make sense
in sexual terms. However, the larger issue for the relation between sexuality and gender,
hence sexuality and violence generally, including both war and violence against women, is:
What is heterosexuality? If it is the erotization of dominance and submission, altering the
participants' gender is comparatively incidental. If it is males over females, gender matters
independently. Since I see heterosexuality as the fusion of the two, but with gender a social
outcome (such that the acted upon is feminized, is the "girl" regardless of sex, the actor
correspondingly masculinized), battery appears sexual on a deeper level. In baldest terms,
sexuality is violent, so violence is sexual, violence against women doubly so. If this is so,
wives are beaten, as well as raped, as women-as the acted upon, as gender, meaning sexual,
objects. It further follows that all acts by anyone which treat a woman according to her object
label "woman" are sexual acts. The extent to which sexual acts are acts of objectification
remains a question of our account of our freedom to make our own meanings. It is clear, at
least, that it is centering sexuality upon genitality that distinguishes battery from rape at
exactly the juncture that both the law, and seeing rape as violence not sex, does.

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approach, lies instead in the meaning of the act from women's point of
view. What is wrong with rape is that it is an act of the subordination of
women to men. Seen this way, the issue is not so much what rape "is" as
the way its social conception is shaped to interpret particular encounters.
Under conditions of sex inequality, with perspective bound up with situ-
ation, whether a contested interaction is rape comes down to whose
meaning wins. If sexuality is relational, specifically if it is a power rela-
tion of gender, consent is a communication under conditions of in-
equality. It transpires somewhere between what the woman actually
wanted and what the man comprehended she wanted. Instead of cap-
turing this dynamic, the law gives us linear statics face to face. Noncon-
sent in law becomes a question of the man's force or the woman's resis-
tance or both.37 Rape, like many crimes and torts, requires that the
accused possess a criminal mind (mens rea) for his acts to be criminal.
The man's mental state refers to what he actually understood at the time
or to what a reasonable man should have understood under the circum-
stances. The problem is this: the injury of rape lies in the meaning of t
act to its victims, but the standard for its criminality lies in the meani
of the same act to the assailants. Rape is only an injury from women'
point of view. It is only a crime from the male point of view, explici
including that of the accused.
Thus is the crime of rape defined and adjudicated from the ma
standpoint, that is, presuming that (what feminists see as) forced sex
sex. Under male supremacy, of course, it is. What this means doctrinall
is that the man's perceptions of the woman's desires often determi
whether she is deemed violated. This might be like other crimes o
subjective intent if rape were like other crimes. But with rape, becaus
sexuality defines gender, the only difference between assault and (wh
is socially considered) noninjury is the meaning of the encounter to t
woman. Interpreted this way, the legal problem has been to determin
whose view of that meaning constitutes what really happened, as if wh
happened objectively exists to be objectively determined, thus as if th
task of determination is separable from the gender of the participant
and the gendered nature of their exchange. Thus, even though the rap
law oscillates between subjective tests and more objective standards in
voking social reasonableness, it uniformly presumes a single underlyin
reality, not a reality split by divergent meanings, such as those inequali
produces. Many women are raped by men who know the meaning
their acts to women and proceed anyway.38 But women are also violat
37. Even when nonconsent is not a legal element of the offense (as in Michigan),jurie
tend to infer rape from evidence of force or resistance.
38. This is apparently true of undetected as well as convicted rapists. Samuel Dav
Smithyman's sample, composed largely of the former, contained self-selected responde
to his ad, which read: "Are you a rapist? Researchers Interviewing Anonymously by Pho
to Protect Your Identity. Call ...." Presumably those who chose to call defined their acts
rapes, at least at the time of responding ("The Undetected Rapist" [Ph.D. diss., Claremo
Graduate School, 1978], pp. 54-60, 63-76, 80-90, 97-107).

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every day by men who have no idea of the meaning of thei

women. To them, it is sex. Therefore, to the law, it is sex. That
single reality of what happened. When a rape prosecution is
consent defense, the woman has not only failed to prove lack of
she is not considered to have been injured at all. Hermeneuti
packed, read: because he did not perceive she did not want him,
not violated. She had sex. Sex itself cannot be an injury. Women
to sex every day. Sex makes a woman a woman. Sex is what wom
for.
To a feminist analysis, men set sexual mores ideologically and be-
haviorally, define rape as they imagine the sexual violation of women
through distinguishing it from their image of what they normally do,
and sit in judgment in most accusations of sex crimes. So rape comes to
mean a strange (read Black) man knowing a woman does not want sex
and going ahead anyway. But 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 woman
loved it.39 Women, as a survival strategy, must ignore or devalue or mute
our desires (particularly lack of them) to convey the impression that the
man will get what he wants regardless of what we want. In this context,
consider measuring the genuineness of consent from the individual as-
sailant's (or even the socially reasonable, i.e., objective, man's) point of
view.
Men's pervasive belief that women fabricate rape charges after con-
senting to sex makes sense in this light. To them, the accusations are false
because, to them, the facts describe sex. To interpret such events as
rapes distorts their experience. Since they seldom consider that their
experience of the real is anything other than reality, they can only ex-
plain the woman's version as maliciously invented. Similarly, the male
anxiety that rape is easy to charge and difficult to disprove (also widely
believed in the face of overwhelming evidence to the contrary) arises
because rape accusations express one thing men cannot seem to control:
the meaning to women of sexual encounters.
Thus do legal doctrines, incoherent or puzzling as syllogistic logic,
become coherent as ideology. For example, when an accused wrongly
but sincerely believes that a woman he sexually forced consented, he may
have a defense of mistaken belief or fail to satisfy the mental require-
ment of knowingly proceeding against her will.40 One commentator
notes, discussing the conceptually similar issue of revocation of prior
consent (i.e., on the issue of the conditions under which women are
39. "Probably the single most used cry of rapist to victim is 'You bitch ... slut ... you
know you want it. You all want it' and afterward, 'there now, you really enjoyed it, didn't
you?' " (Nancy Gager and Cathleen Schurr, Sexual Assault: Confronting Rape in America [New
York: Grosset & Dunlap, 1976], p. 244).
40. See Director of Public Prosecutions v. Morgan, 2411 E.R.H.L. 347 (1975); Pappa-
john v. The Queen, 11 D.L.R. 3d 1 (1980); People v. Mayberry, 15 Cal. 3d 143, 542 P.2d
1337 (1975).

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allowed to control access to their sexuality from one time to the n

"Even where a woman revokes prior consent, such is the male ego t
seized of an exaggerated assessment of his sexual prowess, a man m
genuinely believe her still to be consenting; resistance may be
interpreted as enthusiastic cooperation; protestations of pain or
inclination, a spur to more sophisticated or more ardent love-makin
clear statement to stop, taken as referring to a particular intimacy r
than the entire performance.'"4 This equally vividly captures comm
male readings of women's indications of disinclination under all kind
circumstances.42 Now reconsider to what extent the man's percepti
should determine whether a rape occurred. From whose standpoint
in whose interest, is a law that allows one person's conditioned
consciousness to contraindicate another's experienced violation?
aspect of the rape law reflects the sex inequality of the society not on
conceiving a cognizable injury from the viewpoint of the reaso
rapist, but in affirmatively rewarding men with acquittals for not c
prehending women's point of view on sexual encounters.
Whether the law calls this coerced consent or mistake of fact, th
more the sexual violation of women is routine, the more beliefs equa
sexuality with violation become reasonable, and the more hon
women can be defined in terms of our fuckability. It would be comp
tively simple if the legal problem were limited to avoiding retroac
falsification of the accused's state of mind. Surely there are incentiv
lie. But the deeper problem is the rape law's assumption that a sing
objective state of affairs existed, one which merely needs to b
termined by evidence, when many (maybe even most) rapes involve
est men and violated women. When the reality is split-a woman is
but not by a rapist?-the law tends to conclude that a rape did not hap
To attempt to solve this by adopting the standard of reasonable be
without asking, on a substantive social basis, to whom the belief is
sonable and why-meaning, what conditions make it reasonable
one-sided: male-sided. What is it reasonable for a man to believe con-
cerning a woman's desire for sex when heterosexuality is compulsory?
Whose subjectivity becomes the objectivity of "what happened" is a mat-
ter of social meaning, that is, it has been a matter of sexual politics.
One-sidedly erasing women's violation or dissolving the presumptions
into the subjectivity of either side are alternatives dictated by the terms
41. Richard H. S. Tur, "Rape: Reasonableness and Time," Oforrd Journal olf Legal
Studies 3 (Winter 1981): 432-41, 441. Tur, in the context of the Morgan and Pappajohn
cases, says the "law ought not to be astute to equate wickedness and wsishful, albeit mis-
taken, thinking" (p. 437). In feminiist analysis, a rape is not an isolated or individual or
moral transgi-ession but a terrori-ist act wxithin a systematic context of group subjection, like
lynching.
42. See Silke Vogelnann-Sine et al., "Sex Differences in Feelings Attributed to a
Woman in Situations Involving (oercion and Sexual Advances,"Journal oJ PersoallitY 47,
no. 3 (September 1979): 420-31, esp. 429-30.

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of the object/subject split, respectively. These are alternativ

only retrace that split until its terms are confronted as gen
ground.
Desirability to men is commonly supposed to be a woman's form of
power. This echoes the view that consent is women's form of control
over intercourse, different but equal to the custom of male initiative.
Look at it: man initiates, woman chooses. Even the ideal is not mutual.
Apart from the disparate consequences of refusal, or openness of origi-
nal options, this model does not envision a situation the woman controls
being placed in, or choices she frames, yet the consequences are attrib-
uted to her as if the sexes began at arm's length, on equal terrain, as in
the contract fiction. Ambiguous cases of consent are often archetypically
referred to as "half won arguments in parked cars."43 Why not half lost?
Why isn't half enough? Why is it an argument? Why do men still want
"it," feel entitled to "it," when women don't want them? That sexual
expression is even framed as a matter of woman's consent, without ex-
posing these presuppositions, is integral to gender inequality. Woman's
so-called power presupposes her more fundamental powerlessness.44
III
The state's formal norms recapitulate the male point of view o

level of design. In Anglo-American jurisprudence, morals (valu
ments) are deemed separable and separated from politics (powe
tests), and both from adjudication (interpretation). Neutrality, in
judicial decision making that is dispassionate, impersonal, disinter
and precedential, is considered desirable and descriptive. C
forums without predisposition among parties and with no inte
their own, reflect society back to itself resolved. Government of la
men limits partiality with written constraints and tempers force
reasonable rule following. This law aspires to science: to the imma
generalization subsuming the emergent particularity, to predictio
control of social regularities and regulations, preferably codified.
formulaic "tests" of"doctrine" aspire to mechanism, classification t
onomy. Courts intervene only in properly "factualized" disputes,4
nizing social conflicts as if collecting empirical data. But the
43. Note, "Forcible and Statutory Rape: An Exploration of the Operation and
tives of the Consent Standard," Yale Law Journal 62 (1952): 55-56.
44. A similar analysis of sexual harassment suggests that women have such "
only so long as we behave according to male definitions of female desirability, that
so long as we accede the definition of our sexuality (hence, ourselves, as gender fem
male terms. We have this power only so long as we remain powerless.
45. Peter Gabel, "Reification in Legal Reasoning" (New College Law Scho
Francisco, 1980, mimeographed), p. 3.

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marcations between morals and politics, the personality of the judge and
the judicial role, bare coercion and the rule of law,46 tend to merge in
women's experience. Relatively seamlessly they promote the dominance
of men as a social group through privileging the form of power-the
perspective on social life-feminist consciousness reveals as socially male.
The separation of form from substance, process from policy, role from
theory and practice, echoes and reechoes at each level of the regime its
basic norm: objectivity.
Consider a central example. The separation of public from private
is as crucial to the liberal state's claim to objectivity as its inseparability is
to women's claim to subordination. Legally, it has both formal and sub-
stantive dimensions. The state considers formal, not substantive, the
allocation of public matters to itself to be treated objectively, of private
matters to civil society to be treated subjectively. Substantively, the pri-
vate is defined as a right to "an inviolable personality,"47 which is
guaranteed by ensuring "autonomy or control over the intimacies of
personal identity."48 It is hermetic. It means that which is inaccessible to,
unaccountable to, and unconstructed by anything beyond itself. In-
timacy occurs in private; this is supposed to guarantee original symmetry
of power. Injuries arise in violating the private sphere, not within and by
and because of it. Private means consent can be presumed unless dis-
proven. To contain a systematic inequality contradicts the notion itself.
But feminist consciousness has exploded the private. For women, the
measure of the intimacy has been the measure of the oppression. To see
the personal as political means to see the private as public. On this level,
women have no privacy to lose or to guarantee. We are not inviolable.
Our sexuality, meaning gender identity, is not only violable, it is (hence
we are) our violation. Privacy is everything women as women have never
been allowed to be or to have; at the same time the private is everything
women have been equated with and defined in terms of men's ability to
46. Rawls's "original position," for instance, is a version of my objective standpoint

(John Rawls, A Theory of Justice [Cambridge, Mass.: Harvard University Press, 1971]). Not
only apologists for the liberal state, but also some of its most trenchant critics, see a real
distinction between the rule of law and absolute arbit-rary force. E. P. Thompson, Whigs and
Hunters: The Oiigin of theBlack Act (New York: Pantheon Books, 1975), pp. 258-69. Douglas
Hay argues that making and enforcing certain acts as illegal reinfo-ces a structure of
subordination ("Property, Authority, and the Criminal Law," in Albion's Fatal Tree: Crime
and Society in Eighteenth Century England, D. Hay et al., eds. [New York: Pantheon Books,
1975], pp. 17-31). Michael D. A. Fieeman ("Violence against Women: Does the I.egal
System Provide Solutions or Itself Constitute the Problem?" [Madison, Wis., 1980, mimeo-
graphed], p. 12, n. 161) applies this ar-gument to domestic battery of wsomen. Here I
extend it to women's situation as a whole, without suggesting that the analysis can end
there.
47. S. D. Warren and L. D. Brandeis, "The Right to Privacy," Havavard Law Review 4
(1890): 193-205.
48. Tom Gerety, "Redefining Privacy," Harvard Civil Right-Civil Liberties La, Review 12,
no. 2 (Spring 1977): 236.

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have. To confront the fact that we have no privacy is to con

private degradation as the public order. To fail to recognize t
the private in women's subordination by seeking protectio
right to that privacy is thus to be cut off from collective veri
state support in the same act.49 The very place (home, body)
(sexual), activities (intercourse and reproduction), and fe
timacy, selfhood) that feminism finds central to women's subj
the core of privacy doctrine. But when women are segregated
one at a time, a law of privacy will tend to protect the right of
let alone,"50 to oppress us one at a time. A law of the private
that mirrors such a society, will translate the traditional val
private sphere into individual women's right to privacy, subo
women's collective needs to the imperatives of male suprema
keep some men out of the bedrooms of other men.
Liberalism converges with the left at this edge of the fem
tique of male power. Herbert Marcuse speaks of "philosophies
'political' in the widest sense-affecting society as a whole, de
transcending the sphere of privacy."52 This does and does no
the feminist political: "Women both have and have not had a
world."53 Isolation in the home and intimate degradation, wo
The private sphere, which confines and separates us, is
political sphere, a common ground of our inequality. In femi
lation, the private is a sphere of battery, marital rape, an
exploited labor; of the central social institutions whereby
deprived of (as men are granted) identity, autonomy, contro
determination; and of the primary activity through which m
acy is expressed and enforced. Rather than transcending the
predicate to politics, feminism politicizes it. For women,
necessarily transcends the private. If the most private also mo
society as a whole," the separation between public and privat
as anything other than potent ideology. The failure o
adequately to address intimacy on the one hand, governm
49. Harris v. McRae, 448 U.S. 287 (1980), which holds that withholding
for abortions does not violate the federal constitutional right to privacy, il
Zillah Eisenstein, The Radical Future of Liberal Feminism (New York: Longma
p. 240.
50. Robeson v. Rochester Folding Box Co., 171 NY 538 (1902); Cooley, Torts, sec.
135, 4th ed. (Chicago: Callaghan & Co., 1932).
51. This argument learned a lot from Tom Grey's article, "Eros, Civilization and the
Burger Court," Law and Contemporary Problems 43, no. 3 (Summer 1980): 83-99.
52. Herbert Marcuse, "Repressive Tolerance," in A Critique of Pure Tolerance, ed.
Robert Paul Wolff, Barrington Moore, Jr., and Herbert Marcuse (Boston: Beacon Press,
1965), pp. 81-117, esp. p. 91.
53. Adrienne Rich, "Conditions for Work: The Common World of Women," in
Working It Out: Twenty-three Women Writers, Artists, Scientists, and Scholars Talk about Their
Lives and Work, ed. Sara Ruddick and Pamela Daniels (New York: Pantheon Books, 1977),
pp. xiv-xxiv, esp. p. xiv.

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other, is the same failure as the indistinguishability between marxism

and liberalism on questions of sexual politics.
Interpreting further areas of law, a feminist theory of the state will
reveal that the idealism of liberalism and the materialism of the left have
come to much the same for women. Liberal jurisprudence that the law
should reflect society and leftjurisprudence that all law does or can do is
reflect existing social relations will emerge as two guises of objectivist
epistemology. If objectivity is the epistemological stance of which wom-
en's sexual objectification is the social process, its imposition the
paradigm of power in the male form, then the state will appear most
relentless in imposing the male point of view when it comes closest to
achieving its highest formal criterion of distanced aperspectivity. When
it is most ruthlessly neutral, it will be most male; when it is most sex
blind, it will be most blind to the sex of the standard being applied.
When it most closely conforms to precedent, to "facts," to legislative
intent, it will most closely enforce socially male norms and most thor-
oughly preclude questioning their content as having a point of view at
all. Abstract rights will authoritize the male experience of the world. The
liberal view that law is society's text, its rational mind, expresses this in a
normative mode; the traditional left view that the state, and with it the
law, is superstructural or epiphenomenal expresses it in an empirical
mode. Both rationalize male power by presuming that it does not exist,
that equality between the sexes (room for marginal corrections con-
ceded) is society's basic norm and fundamental description. Only
feminism grasps the extent to which the opposite is true: that anti-
feminism is as normative as it is empirical. Once masculinity appears as a
specific position, not just as the way things are, its judgments will be
revealed in process and procedure, as well as adjudication and legisla-
tion. Perhaps the objectivity of the liberal state has made it appear "au-
tonomous of class." Including, but beyond, the bourgeois in liberal le-
galism, lies what is male about it. However autonomous of class the
liberal state may appear, it is not autonomous of sex. Justice will require
change, not reflection-a new jurisprudence, a new relation between life
and law.
University of Minnesota Law School

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Mackinnon - Towards Feminist Jurisprudence

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Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence

Author(s): Catharine A. MacKinnon

Stable URL: https://www.jstor.org/stable/3173687

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Feminism, Marxism, Method, and the

Feminism has no theory of the state. It has a theory of power: sexu

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dynamic, is at once epistemological and political.2 The feminist theor

2. This analysis is developed in part 1. I assume here your acquaintance with

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proach does not undercut its sincerity, but it is interest tha

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The practice of a politics of all women in the face of its theoret

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point-of-viewlessness, its particularity the meaning of unive

8. I mean to imply that contemporary feminism that is not methodologically post-

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marxist-feminist problematic on the level of method. Because its method

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who frontally analyzed both, and together, presumed the su

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applied to women is always on the edge of counseling abdicat

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and calling that view, and that relation, practical rationality. I

17. Laurence Tribe, "Constitution as Point of View" (Harvard Law

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Feminists have reconceived rape as central to women's condition in

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asking, what is the violation of rape, what if we ask, what is the

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existent. It is difficult to avoid the conclusion that penetration itself is

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someone unknown. But women experience rape most often by

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stances of women's experienced violation than does the existing defini-

33. Brownmiller (n. 20 above), pp. 8, 196, 400-407, 427-36.

35. Brownmiller (n. 20 above), p. 5.

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temporarily."36 To be rapable, a position which is social, not

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every day by men who have no idea of the meaning of thei

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allowed to control access to their sexuality from one time to the n

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of the object/subject split, respectively. These are alternativ

The state's formal norms recapitulate the male point of view o

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46. Rawls's "original position," for instance, is a version of my objective standpoint

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have. To confront the fact that we have no privacy is to con

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other, is the same failure as the indistinguishability between marxism

University of Minnesota Law School

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