Conclusion
The dominant male discourse as expressed in the law of sexuality constructs the male subject. In each area — rape, incest and prostitution, it creates and extends the power which underpins the sexuality of the male subject to facilitate the non-consensual taking of women in rape and incest and the buying of them on the subject's own terms in prostitution.
Further, the law constructs the female as Other not as freely consenting subject but as Other for the male subject in the space of unreason, for the logic of desire.
In these constructions, lie the paradox of the law of sexuality. It exists purportedly to defend and protect the “victims” of rape, incest and prostitution but even in so far as it does so, it reasserts, through its constructions, the power of the speaking male subject through and the exclusion of the woman as Other from, the dominant male discourse as it is expressed in and enshrined by that law.
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References
Postmodern feminism is used throughout this article to denote the work of a group of contemporary French feminist philosophers, most specifically Luce Irigaray and Helene Cixous. The work of these writers is sometimes referred to asécriture féminine although in respect of Irigaray, it is a label which has been attached to her but may not be used or accepted by her. See Margaret Whitford,Luce Irigaray, Philosophy in the Feminine (London: Routledge, 1991), 38.
These two philosophers, in particular, have used, challenged and developed postmodernist theory. See Claire Duchen,Feminism in France, (London: Routledge, 1988), for an analysis of the relationship between their work and that of Foucault, Lacan and Derrida. The quotation in the title of this article is taken from Duchen p.71.
As Braidotti suggests, male philosophers situate themselves within the tradition of philosophy as speaking subjects. It is the male subject who is in crisis and he is dealing with this by turning to a hitherto neglected aspect of himself — the previously repressed feminine but not to women. R. Braidotti, “Ethics revisited: women and/in philosophy”, in C. Pateman and E. Gross eds.,Feminist Challenges: Social and Political Theory (Boston: Northeastern University Press, 1986), 60.
It is the argument of this article that Enlightenment thought with its fixed notions of transcendent reason, the unified subject and universal truth and justice is in one sense the precursor of and the focus for the critique and oppositional development of, postmodernism. It is also argued that not only does Enlightenment thought co-exist with postmodernism but also that much postmodernist thought is circumscribed and conditioned by the Enlightenment project. In this, the argument closely follows that of Foucault in “What is Enlightenment?” He argues that: “We must try to proceed with ourselves as beings who are historically determined to a certain extent by the Enlightenment.” “Was ist Aufklarung?”, trans. inThe Foucault Reader, ed. P. Rabinow (Harmondsworth: Penguin, 1991), 43. It is important to consider the relationship of feminism to the Enlightenment project. Jane Flax argues that: “.. it is not unreasonable for persons who have been defined as incapable of self-emancipation to insist that concepts such as the autonomy of reason, objective truth, and beneficial progress through scientific discovery ought to include and be applicable to the capacities and experiences of women as well as men.” She concludes however, “.. despite an understandable attraction to the (apparently) logical orderly world of the Englightenment, feminist theory more properly belongs in the terrain of postmodern philosophy. Feminist notions of the self, knowledge, and truth are too contradictory to those of the Enlightenment to be contained within its categories... Feminist theorists enter into and echo postmodernist discourses as we have begun to deconstruct notions of reason, knowledge, or the self and to reveal the effects of the gender arrangement that lay beneath their neutral and universalising facades.” Jane Flax, “Postmodernism and Gender Relations”, inFeminism/Postmodernism, ed. Linda Nicholson (New York: Routledge, 1990), 42.
The concept of the “Other” is found particularly in the work of Helene Cixous and Luce Irigaray and is set out in detail below at pp.7–10.
Whitford,supra n.1, at 30 argues that the attempts of male philosophers to incorporate the feminine may be seen as a response to the increasing strength and pertinence of feminist discourse and criticism, an attempt to maintain their traditional position of discursive mastery.
Irigarary attempts to “theorise the conditions for a female subject which could not simply be incorporated back into the male imaginary as its other.” Whitford,supra n.1, at 33. See alsoParler n'est jamais neutre. (Paris: Minuit, 1985).
Whitford,supra n.1, at 31. See alsoThis Sex Which is Not One. (Ithaca: Cornell University Press, 1985.)
This task, described by Duchen,supra n.2, as that of Roland Barthes whose work is discussed below p.11, is a focal point of the article.
This notion is developed by Jacques Derrida. See, for example, J. Derrida,Positions (London: Athlone Press, 1981). It is further considered below.
An explanation of Jacques Derrida's notion of deconstruction by Elizabeth Grosz in her article “Contemporary Theories of Power and Sexuality”, inFeminist Knowledge: Critique and Construct, ed. Sneja Gunew (London: Routledge, 1990), 94. Derrida “labels the mainstream of Western thinking logocentric due to its constant privileging of the logos, the word as metaphysical presence” — Toril Moi,Textual/Sexual Politics (London: Routledge, 1991), 179. The logos is seen as mirroring reality, while for Derrida “reality” is embedded in the text, seen through, it not separate from it.
J. Derrida “Letter to a Japanese Friend”, inA Derrida Reader Between the Blinds, ed. P. Kamuf (Hemel Hempstead: Harvester Wheatsheaf, 1991), 271–276.
Deconstruction is a Derridean notion which in the words of Claire Duchen,supra n.2, “questions the presuppositions, the assumptions on which a text is based, the starting point of any text is questioned as are those elements which effect the text without necessarily being visible in the text.’
“Sexual Difference” inFrench Feminist Thought, ed. Toril Moi (Oxford: Basil Blackwell, 1987), 119.
Speculum of the Other Woman (New York: Cornell University Press, 1985), 133.
Ibid.
“Sorties: Out and Out: Attacks/Ways Out/Forays”, inThe Newly-Born Woman, Helene Cixous and Catherine Clement (Manchester: Manchester University Press, 1986), 71.
Speculum of the Other Woman, supra n.15, at 135.
See particularly Michel Foucault, “Politics and the Study of Discourse”, inThe Foucault Effect, ed. G. Burchell, C. Gordon and P. Miller (London: Harvester Wheatsheaf, 1991).
See, for example, Irigaray,Parler n'est jamais neutre (Paris: Minuit, 1985).
Ethique de la difference sexuelle (1984) quoted in Whitford,supra n.1, at 43.
Ibid.
Whitford,supra n.1, at 33.
See “Truth and Power”, inThe Foucault Reader, ed. Paul Rabinow (London: Penguin, 1991).
Foucault interviewed by Lucette Finas inMichel Foucault: Power, Truth and Strategy, ed. Morris and Patton (Sydney: Feral Publications, 1978), quoted in Grosz,supra n.11, at 87.
This argument is developed by Michele Barrett, “Concept of Difference”,Feminist Review 26 (1987), 35.
“The ethic of care for the self as a practice of freedom”, an interview with Michel Foucault inThe Final Foucault, ed. J. Bernauer and D. Rasmussen (Cambridge, Massachusetts: MIT Press, 1988), 19.
See, for example, Derrida,Positions (London: Athlone Press, 1981).
G. Lloyd, “The Man of Reason”, quoted in Christine Di Stephano, “Dilemmas of Difference”, inFeminism/Postmodernism, supra n.11, at 71. This article includes an extended discussion of the notion of reason in this context.
Michel Foucault,The History of Sexuality (London: Peregrine, 1987), 78.
In a fascinating and complex analysis of rationality, Irigaray is concerned to unearth that which underlies the rational subject, the unrecognised control by unconscious desires. She develops a sophisticated theory of the relationship between rationality and the male imaginary. (See, for example, Irigaray,This Sex Which is Not One (Ithaca: Cornell University Press, 1985).) Whitford,supra n.1, at 53, argues: “Irigaray's critique of rationality is not a prescription for female irrationality; to say that rationality is male is to argue that it has a certain structure, that the subject of enunciation which subtends the rational discourse is repressed in a certain way, through the repression of the feminine.”
See the discussion of Foucault's three levels of powersupra at p.9.
Roland Barthes,Mythologies (London: Paladin, 1973), 118.
Ibid.,, at 126.
Duchen,supra n.2, at 72.
This author like Kristeva (“Talking About Polylogue”, inFrench Feminist Thought, supra n.14, at 116, “Sexual Difference” in does not follow the direction of some French feminist theorists who argue for a separate language for women. She argues rather for the need to explore the nature and possibilities of the discourse of the female Other within the law, albeit that it is currently a discourse of silence and exclusion and it is argued, will remain so until the female Other accedes to subjectivity in the symbolic (in language) and, therefore also, in the text of the law.
Sexual Offences (Amendment) Act 1976, s.1(1)(a).
S.1(1)(b)Ibid.
SeeR. v. Gaston (1981) 73 Cr.App.R. 164, in which the Prosecution unsuccessfully tried to prove a charge of attempted rapeper anum. It was held that such an offence did not exist and should have been charged as attempted buggery.
There is some debate as to whether this is simply a question ofmens rea and therefore to be proved by the prosecution beyond reasonable doubt and the extent to which it is a defence and therefore to be proved on the balance of probabilities by the defence. Lord Hailsham states that the first is the correct position in his judgment inD.P.P. v. Morgan [1976] A.C. 215. Whether or not consent isexclusively an issue ofmens rea, it clearly is an issue ofmens rea.
Author's emphasis.
Summary of the principle inMorgan from J. Temkin,Rape and the Legal Process (London: Sweet and Maxwell, 1987). Temkin provides a very full discussion of this case and the points arising from it. See particularly pp.76–79.
R. v Satnam S. and Kewal S. [1983] 78 Cr App. Rep. 149.
[1981] 2 All E.R. 863.
[1980] 71 Cr. App. Rep. 237, CA. This test requires that the risk be obvious to the reasonable person not necessarily to the defendant. (Elliott v.C.(a minor) [1983] 2 All E.R. 1005).
Morgan, supra n.41.
It was held in the case ofMorgan that any earlier authorities suggesting the contrary, notablyR. v. Tolson (1889) 23 Q.B.D. 168 andR. v. Prince (1875) L.R. 2 C.C.R. 154 were not appropriate in the case of rape.
Lorna Smith's study of rape in two London boroughs established that 68% of victims knew their attackers, 39% knowing them well:Concern About Rape (Home Office Research Study No.106, HMSO, 1989), 23. Zsuzsanna Adler's study of rape trials at the Old Bailey gave a figure of 60% (Zsuzsanna Adler,Rape on Trial (London: Routledge and Kegan Paul, 1987), 47).
The notion developed by Foucault. Seesupra n.22.
A.A.S. Zuckerman,Principles of Criminal Evidence (Oxford: Clarendon, 1989), 159.
See particularlyR. v.Henry andR. v.Manning [1968] 53 Cr.App. 150 at 153.
Barthes,Mythologies, supra n.34, at 118, quotedsupra p.12.
R. v.Chance [1988] 3 All E.R. 225 at 229.
Ibid., at 232.
Judgement inR. v.Chance [1988] 3 All E.R. 225 at 229.
See Adler,supra n.49, at 89. (
Adler's own study of Old Bailey rape trials,supra n.49, ( at 73 revealed that nearly 60% of defendants using the consent defence applied to put the complainant's previous sexual history in evidence — 75% of them were successful.
[1970] A.C. 304.
This is a provision of s.1(f)(ii) of the Criminal Evidence Act 1898.
The Home Office do not keep statistics on the relationship between the victim and the offender in incest matters. However, theCriminal Law Review in its commentary onR. v.Winch [1974] Crim.L.R. 487 confirms that “the vast majority of cases of incest which come before the Courts” relate to sexual intercourse between fathers and “teenage daughters, frequently when they are below the age to consent to intercourse.”
By s.44 of the same Act — the Sexual Offences Act 1956 — proof of penetration is required although ejaculation is not. Intercourseper anum is buggery (R. v.Gaston [1981] 73 Cr.App.R. 161 and is, therefore, not incest.
Liz Kelly,Surviving Sexual Violence (Cambridge: Polity, 1988), quoted in N. Lacey, C. Wells and D. Meure, eds.,Reconstructing Criminal Law (London: Weidenfeld and Nicolson, 1990), 355, notes from her study: “Where incestuous abuse was by adult relatives other than biological fathers, these men were always in some form of “social father” relation to the girl: step-father, mother's boyfriend or the adult male in the household...”
R. v.Carmichael [1940] 1 K.B 630. In this case the defendant believed the girl/woman who was in fact his daughter to be the child of an adulterous relationship. The judgement states: “In our opinion, the question whether A. is B's daughter is totally distinct from the question whether to B.'s knowledge she is his daughter”, at 637.
Seesupra n.67.
See discussion of rape above pp.12–18.
In the case ofR. v.Satnam S. and Kewal S., supra n.44, the two defendants successfully appealed against a rape charge on the grounds that the trial judge had directed the jury thatCaldwell recklessness applied. One of the defendants had also been charged with indecent assault and he was convicted of that offence on appeal because the thirteen year old victim was too young to consent to this although there is no age barrier for consent to intercourse.
Re. Attorney General's Reference (No. 1 of 1989), [1989] 3 All E.R. 571 quoted in Lacey, Wells and Meure,supra n.69, at 356.
Ibid., at 356.
In reporting the case ofR. v.Winch [1974] Crim.L.R. 487 states: “The gravamen of incest was that it might have a disastrous effect on children born to the parties.”
Re Attorney General's Reference (No 1 of 1989), supra n.74, quoted in Lacey, Wells and Meure,supra n.69, at 356.
[1977] 64 Cr.App.Rep 76 at 78.
Street Offences Act 1959, s.1(1).
Sexual Offences Act 1956, s.33.
Sexual Offences Act 1985, s.1.
Sexual Offences Act 1985, s.2.
Sexual Offences Act 1956, s.36.
J.C. Smith and B. Hogan,Criminal Law (London: Butterworths, 1988, 6th ed.), 459. The more recent seventh edition does not deal with prostitution.
Donovan v.Gavin [1965] 2 Q.B. 648.
Ibid.
Sexual Offences Act 1956.
Thomas [1957] 2 All E.R. 181.
Under ss.33, 34 and 35 of the Sexual Offences Act 1956.
Section 30 Sexual Offences Act 1956.
NotablyR. v.Thomas [1957] 2 All E.R. 181 andR. v.Ferrugia (1979) 69 Cr.App.Rep. 108 (C.A.).
See p.21 above for an analysis of s.1(1) of the Street Offences Act 1959.
See pp.23–25 above for a discussion of ss.33, 34, and 35 of the Sexual Offences Act.
Supra. at p.26 and n.100.
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The author is grateful for the comments of Glynis Cousin, Mike McConville, Brendan McSweeney and an anonymous referee on this work.
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Duncan, S. “Disrupting the surface of order and innocence”: Towards a theory of sexuality and the law. Feminist Legal Stud 2, 3–28 (1994). https://doi.org/10.1007/BF01117248
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DOI: https://doi.org/10.1007/BF01117248