Abstract
How can we eradicate violence against women? How, at least, can we reduce its prevalence? One possibility offered by Catharine MacKinnon is to harness international human rights norms, especially prohibitions on torture, and apply them to sexual violence with greater rigour and commitment than has hitherto been the case. This article focuses particularly on the argument that all rapes constitute torture in which states are actively complicit. It questions whether a feminist strategy to reconceptualise rape as torture should be pursued, suggesting that we retain the label ‘rape’ due to its gendered meaning and powerful associations. It is also claimed that we may lose sight of the commonality of rape in calling it torture, as well as obscuring the varied responses of women survivors. Finally, the article canvasses the idea that we recognise the different circumstances and contexts in which rape takes place, which may mean different criminal offences for different rapes; for example, preserving the label ‘torture’ for those rapes in which state officials are participants.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Results did flow from this feminist campaigning, with the establishment of international criminal courts attuned to the needs of women victims and sexual crimes, but feminists were also deeply divided over how to conceptualise the mass rapes and therefore strategise against them (Engle 2005).
For reviews of the book, see inter alia Munro (2006), Higgins (2006) and Palevich (this volume; doi:10.1007/s10691-007-9082-x).
Sukran Aydin v. Turkey (1998) 25 E.H.R.R. 251; see also Edwards (2006).
There is no uniform definition of torture internationally. MacKinnon’s focus is on international human rights norms, which determine state responsibility, paradigmatically the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 December 1984, G.A. Res. 39/64, which defines torture as follows: Article 1: “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”. This differs from individual criminal liability under international criminal law, for which the requirement of state participation is not the same. For a detailed discussion, see Edwards (2006).
Ibid.
Sukran Aydin v. Turkey (1998) 25 E.H.R.R. 251; Raquel Marti de Mejia v. Peru (1996) Case 10.970, Report No. 5/96, InterAmerican Court of Human Rights, O.E.A./Ser..L./V/II. 91, Doc. 7. See further Blatt (1991–1992) and Pearce (2003) for the argument that the international community has been too slow to recognise rape as a form of torture.
Prosecutor v. Jean-Paul Akayesu, International Criminal Tribunal for Rwanda, Case No. I.C.T.R.-96-4-T, 2 September 1998; on appeal: Case No. I.C.T.R.-96-4-T (A.C.), 1 June 2001.
Though Peters (1996, pp. 151–152) rejects using the term torture to describe domestic violence, he does accept that it is a powerful rhetorical tool.
Alice Edwards suggests that this approach may be criticised for “playing into the male-gendered international system by seeking to raise the profile of violence against women through equating the seriousness of the harm with male conceptions of torture, rather than as grave human rights violations in their own right” (2006, p. 379).
It is less obvious that the term ‘domestic violence’ is gender specific, but it generally remains understood as such.
International criminal law is an exception, as discussed above. See further Edwards (2006).
Sukran Aydin v. Turkey (1998) 25 E.H.R.R. 251.
In a similar vein, she argued that: “These rapes are to everyday rape what the Holocaust was to everyday anti-Semitism. Without everyday anti-Semitism a Holocaust is impossible, but anyone who has lived through a pogrom knows the difference” (MacKinnon 1994, p. 190).
As Karen Engle explains, this debate was “not so much about whether rape had been used as an instrument of genocide, but whether a focus on genocidal rape functioned to downplay the extent to which all women raped during war were victims” (2005, p. 786).
This is not to suggest that the feminist criticism of the state actor requirement is not valid. The concepts of state acquiescence and consent should be interpreted much more broadly than they are at present.
As noted above, there is an argument that juries find it difficult to convict defendants for rape due to the seriousness of the label ‘rapist’. Arguably, this would be even more so were the label ‘torturer’ to then be applied.
Copelon (1994b) also makes this argument in respect of survivors of domestic violence, though she does still argue that domestic violence should be recognised as torture.
See the definition of torture, above in Article 1 of the U.N. Convention Against Torture.
References
Blatt, D., “Recognizing Rape as a Method of Torture”, New York University Review of Law and Social Change 19 (1991–1992), 821–865
Chinkin, C., Rape and Sexual Abuse of Women in International Law, European Journal of International Law 5 (1994), 326–341
Copelon, R., Surfacing Gender: Re-Engraving Crimes Against Women in Humanitarian Law, Hastings Women’s Law Journal 5 1994a), 243–266
Copelon, R., Intimate Terror: Understanding Domestic Violence as Torture, In Human Rights of Women: National and International Perspectives, ed. R. Cook (Philadelphia: University of Pennsylvania Press, 1994b) 116–152
Copelon, R., Surfacing Gender: Reconceptualising Crimes Against Women in Time of War, In Mass Rape: The War Against Women in Bosnia-Herzegovina, ed. A. Stiglmayer (Toronto: Bison Books, 1994c) 197–218
Copelon, R., “Gender Crimes as War Crimes: Integrating Crimes Against Women into International Criminal Law”, McGill Law Journal 46 (2000–2001), 217–240
Edwards, A., The ‘Feminizing’ of Torture Under International Human Rights Law, Leiden Journal of International Law 19 (2006), 349–391
Engle, K., Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, American Journal of International Law 99 (2005), 778–816
Greer, G., “Rape”, The Independent (2 April 2007)
Higgins, T., Book Review: Are Women Human and Other International Dialogues by Catharine MacKinnon, Yale Journal of Law and Feminism 18 (2006), 523–544
MacKinnon, C., On Torture: A Feminist Perspective on Human Rights, In Human Rights in the Twenty-First Century: A Global Challenge, eds. K. Mahoney, & P. Mahoney (The Hague: Martinus Nijhoff, 1993) 21–31
MacKinnon, C., Rape, Genocide and Women’s Human Rights, In Mass Rape: The War Against Women in Bosnia-Herzegovina, ed. A. Stiglmayer (Toronto: Bison Books, 1994) 183–196
MacKinnon, C., Are Women Human? And Other International Dialogues (Cambridge, Mass.: Harvard University Press, 2006)
Munro, V., Humanity in Inhuman Times: Feminism Through the Bosnian Lens, King’s College Law Journal 17 (2006), 373–376
Myhill, A., Allen, J., Rape and Sexual Assault of Women: The Extent and Nature of the Problem – Findings from the British Crime Survey (London: Home Office Research Study 237, 2002)
Pearce, H., An Examination of the International Understanding of Political Rape and the Significance of Labeling it Torture, International Journal of Refugee Law 14 (2003), 534–560
Peters, E., Torture, (2nd ed.) (Philadelphia: University of Pennsylvania Press, 1996)
Sentencing Guidelines Council, Sexual Offences Act 2003 – Definitive Guideline (London: Sentencing Guidelines Council, 2007). Available at: http://www.sentencing-guidelines.gov.uk/docs/0000_SexualOffencesAct1.pdf
Temkin, J., Rape and the Legal Process, (2nd ed.) (Oxford: Oxford University Press, 2002)
Walby S., & Allen, J., Domestic Violence, Sexual Assault and Stalking: Findings from the British Crime Survey (London: Home Office Research Study 276, 2004)
Acknowledgements
While this is only a short article, many people have given generously of their time to discuss and vigorously debate the ideas expressed. I should like to thank, therefore, Neil Cobb, Erika Rackley, Ian Ward, Celia Wells and Nicole Westmarland for their time and energy in debating these ideas. I am also extremely grateful to Alice Edwards for her detailed comments on an earlier draft and for helping me to clarify my thinking. Thanks are also due to the anonymous referees. The views expressed, and any errors remaining, are of course mine alone.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
McGlynn, C. Rape as ‘Torture’? Catharine MacKinnon and Questions of Feminist Strategy. Fem Leg Stud 16, 71–85 (2008). https://doi.org/10.1007/s10691-007-9079-5
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10691-007-9079-5