This piece first appeared in the Harvard Law & Policy Review.

Rape is redefined in gender equality terms by eliminating consent, an intrinsically unequal concept, and reconceiving force to include inequalities. International developments recognizing sexual assault as gender crime reveal domestic law’s failures and illuminate a path forward. A statutory proposal is offered.

I. RAPE AS SEX DISCRIMINATION

Rape is a crime of gender inequality.The Supreme Court of the United States embraced this core notion in its 1986 ruling that sexual harassment is a form of sex-based discrimination in employment in a case of serial rape by a man of a woman. It later extended this recognition of the place of gender in sexual violation to men sexually violated by other men at work. The United States Congress passed the Violence Against Women Act in 1994, creating a civil action for “gender-motivated violence” as a form of sex discrimination, contemplated in its legislative history to include sexual assault. Conceptualizing rape as gender-based remained unquestioned when the civil remedy was invalidated. Planted in the United States, this seed has taken root and flourished internationally, where it has been embraced, documented, developed, and enforced.

Authorities around the world increasingly recognize the reality that sexual violation is socially gender-based, whether that understanding is predicated on the large numbers and vast disproportion by sex between perpetrators and victims, on gender roles and stereotypes of masculine and feminine sexuality, or on the hierarchically gendered social meanings and consequences of sexual victimization and perpetration. The Committee on the Elimination of All Forms of Discrimination Against Women influentially stated: “The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately.” The United Nations General Assembly in 1993 declared that violence against women, including sexual assault, is “a manifestation of historically unequal power relations between men and women, which has led to domination over and discrimination against women by men.” As the Supreme Court of Canada put the analysis: “sexual assault is in the vast majority of cases gender based. It is an assault upon human dignity and constitutes a denial of any concept of equality for women.” International human rights conventions have explicitly entrenched the same idea. In international criminal law, rape is routinely referred to as a gender crime, meaning it happens to women or men because they are women or men and are violated based on their sex and/or gender. In 2006, the Secretary General of the United Nations, in a conclusion to which “the link between violence against women and discrimination was key,” observed that violence against women, including rape, had been established as “global, systemic and rooted in power imbalances and structural inequality between men and women.” Further, “[v]iolence against women constitutes a form of gender-based discrimination, and . . . discrimination is the major cause of such violence.” The recognition of the gender basis of sexual violation of men, slower in coming, is also being pioneered in the international community, most frequently in zones of conflict among men.

Read the full article, including footnotes and references. 

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Catharine A. MacKinnon

University of Michigan and Harvard Law Schools

Catharine A. MacKinnon is Elizabeth A. Long Professor of Law at the University of Michigan and James Barr Ames Visiting Professor of Law at Harvard Law School (long-term). She holds a B.A. from Smith College, a J.D. from Yale Law School, and a Ph.D. in political science from Yale, specializing in sex equality issues in political theory and under international and domestic (including comparative and constitutional) law.

Professor MacKinnon pioneered the legal claim for sexual harassment and, with Andrea Dworkin, created ordinances recognizing pornography as a civil rights violation and proposed the Swedish model for abolishing prostitution. Full biography 

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