July 17, 2005
"If the occurrence of rape were audible, its decibel level equal to its frequency, it would overpower our days and nights, interrupt our meals, our bedtime stories, howl behind our love-making, an insistent jackhammer of distress. We would demand an end to it. And if we failed to locate its source, we would condemn the whole structure. We would refuse to live under such conditions."
-Patricia Weaver Francisco
Telling: A Memoir of Rape and Recovery
The military in a liberal state "appears as first glance a very trivial thing, and easily understood. Its analysis shows that it is, in reality, a very queer thing, abounding in metaphysical subtleties." Especially legal subtleties. This is particularly true when we begin to view the military through the lens of gender.
One of the other unfortunate subtleties of liberal society is that people like ex-cops, ex-soldiers, and other figures of (male) authority, who have broken with their own pasts, can publicly 'authorize’ certain viewpoints that are marginalized when those same viewpoints are expressed by the people who are most affected by them.
Many of the issues I will touch on in talking about sexual aggression, and the military propensity to absorb, conceal, and sidetrack interrogations into its outrageous institutional misogyny, have already been raised by women who have been affected by this misogyny and by women who advocate for women generally. Their work is herein recognized as having gone before this, and as making this critique possible. My conclusion, that there is a better chance in the military of legally redressing rape than there is in the civilian sector, is not original, because it is only taking this prior work of others another step.
Before I explore these subtleties, I want to review the process of public discovery that opened the military up to these kinds of interrogations, and a few basic statistics to establish a superficial context that is recognizable to most.
Most of us who are over 35 remember the Tailhook Scandal. In September 1991, when I was – if I recall correctly – with 7th Special Forces training Honduran troops to conduct airmobile operations in the day and pulling bad teeth while I was drunk in exchange for chicken dinners at poor Hondurans’ homes in the evening, there was a party of Naval Aviators at the Las Vegas Hilton hotel that would eventually result in the early retirement of Chief of Naval Operations Admiral Frank B. Kelso II.
Kelso had attended the 35th Annual Tailhook Symposium in Las Vegas – which was a traditional bacchanalia for this fraternity of Naval Aviators. He claimed under oath that he had not observed the activities that aimed a klieg light into the convention’s activities, but a dozen witnesses rebutted his claim.
The activities, which might be described generally as a binge-drinking party, included the sexual harassment and assault of 26 women, which journalists hastened to point out included 14 female commissioned officers (as if the offense was less egregious for mere enlisted women or civilians).
Women were pushed into a gauntlet of drunken male aviators, the latter proceeding to push their hands up the women’s skirts, clutch their breasts, pinch their buttocks, and rip at their clothes. When Lieutenant Paula Coughlin filed formal charges and brought the bacchanalia into the light of day, additional women came forward, 83 in all, to describe similar experiences they had had when attending Tailhook Conventions in the past.
To make a long story short, a press scandal ensued, while the Navy did damage control, issuing written reprimands of various degrees of severity, and filing not a single charge against the 117 perpetrators – partly, it must be pointed out, because trials of the junior officers would have quickly resulted in inquiries about the knowledge and acquiescence of senior officers throughout the Navy who had been aware of this annual party for years – in fact, many had themselves participated in their youths.
The Navy made loud public noises of outrage and concern – much as the Department of Defense did recently when photographs exposed the torture chambers of Abu Ghraib. They were "shocked, shocked that there is gambling in this establishment."
Mandatory "sensitivity training" was implemented, a typically superficial and clueless military response, wherein every service member was to be familiarized with the narrowly legal definitions of "sexual harassment" and rape.
After an interval, counter-attacks began on "political correctness," the damage this "gutter reporting" had done to good order and discipline (the military loves these high-flown and slippery phrases), and of course to the thorny problems associated with putting women in the military.
Paula Coughlin was subjected to a steady and plausibly-deniable psychological battering in the Navy until she herself resigned her commission in 1996.
Last year, when the Abu Ghraib crisis came data-streaming out of our boob tubes, we were treated to the now-memorized tiny handful of photos – photos showing a woman gloating over dead bodies and a woman holding male prisoners on a leash. In June, 2004, Zillah Eisenstein would describe these women as "gender decoys." Everyone knows the name of the sketchy Ms. Lyndie England these days, and they have all but forgotten the name of her lumpen-Svengali, Charles Graner, who was a creepy civilian prison guard with a history of abuse before he took up the uniform to become part of the ironically named Operation Iraqi Freedom.
According to the Red Cross, there are hundreds and hundreds of photos that the Department of Defense is withholding from the public now, hoping against hope that no one obliges them to expose them – ever – that show the treatment of women Iraqi prisoners, by men. These photos include rape. The stories that are behind these photos have been widely supported and substantiated by independent investigators. In the famed Taguba Report from the Army, rape was not called rape. It was referred to as guards "having sex with" female detainees – implying that there was some element of consent. Stories also emerged from Abu Ghraib were of gang rape committed against female detainees. Most of the women detainees were not suspected of anything as a pretext for rounding them up, but were imprisoned as potential "bargaining chips" to get at relatives whose names were on the now questionable lists of the US forces.
"Masculinist depravity, as a political discourse, can be adopted by males and/or females. It is all the more despicable that the Bush administration used the language of women’s rights to justify the bombs in the Afghan war against Taliban practices towards women; and then again against the horrific torture and rape chambers under Saddam Hussein. And it should be no surprise that Bush’s women – Laura, Mary Matalin, and Karen Hughes – who regularly bad-mouth feminism of any sort were responsible for articulating this imperial women’s rights justification for war. Imperial(ist) feminism obfuscates the use of gender decoys: women are both victims and perpetrators; constrained and yet free; neither exactly commander or decoy. What if rape and `sexual humiliation’ are understood not as aberrations in war but as simply `a form of war by other means’?
"There is then a different context for seeing the disorder and chaos in Iraq that leaves many women barricaded in their homes fearing rape and capture if they venture onto the streets. It also puts a different lens on the recent charges of sexual assault and rape by dozens of U.S. servicewomen in the Persian Gulf area against their fellow soldiers."
This was the story that had only received a whiff of coverage – that by June of 2004, 112 cases of sexual assault and rape had been reported within CENTCOM by female US troops identifying fellow male soldiers and officers as the perpetrators. The Miles Foundation says that number rockets to 243 if you include Afghanistan, Kuwait, and Bahrain.
This is only the latest manifestation of sexual aggression within the military. Since Tailhook, there have been 17 major sexual assault scandals that have leaked beyond the Department of Defense containment apparatus, including the now infamous case of the Air Force Academy’s rape culture, in which 68% of the female cadets polled had prior experience with various forms of sexual aggression and hostility, and in addition to the 2002 stories of military spousal murders in Fort Bragg.
Captain Jennifer Machmer, a West Point graduate was raped in Kuwait in 2003 by a senior NCO.
"I reported the rape within 30 minutes," she explained in to a silent Congressional committee, "then watched my career implode." Her assailant, however, was promoted and transferred to Kentucky to finish his career. The military had employed a narrow definition of rape under military law to exonerate the assailant. The same circumstances in civilian law would have resulted in a rape conviction. The military then uses the oblique method for shedding those who are not "team players" – the evaluation report. These are notoriously subjective instruments in the hands of every commander with which the withdrawal of a single point below the maximum – after an initial Officer Evaluation Report – will result almost certainly in being "passed over" for promotion in a cannibalistic up-or-out officer personnel management system.
It is this centralized institutional power, in a macho military culture, combined with the inability of service members to leave the military at will, that makes under-reporting of sexual aggression statistics for the military – which I will present further along – even more prevalent than the under-reporting of civilian sector statistics. Moreover, military sexual aggression victims are not entitled under the Uniform Code of Military Justice to confidentiality, which further inhibits women (and some men) from reporting sexual aggression – be it harassment, assault, or rape. Military personnel prior to 1999, under Military Rules of Evidence 501(d), could not invoke doctor-patient privilege, called the Jaffee privilege in civilian law, with regard to communications with their own psychiatrists and psychologists. Since then, even with an executive order to the contrary from the Clinton White House, the military has not fully implemented the reversal of this policy.
In January of this year (2005), Undersecretary of Defense for Personnel and Readiness David Chu announced that confidentiality would be extended to medical providers and post-trauma counselors, though implementation is waiting on a green light from the Office of General Counsel. These changes were in direct reaction to the outcry raised – though feebly echoed by the press – about sexual assaults and rapes in Iraq and Kuwait. This does not necessarily signal real change.
The following examples of inaction and stonewalling were presented to Congress in 2003:
"Talia was sexually assaulted by a fellow soldier while deployed in the Persian Gulf. She was, belatedly, flown back from her unit for medical leave and long term counseling to cope with rape trauma. The rape evidence kit was turned over to local police for DNA analysis due to a backlog of six months or more. She has been unable to obtain information relative to the status of the investigation due to transfers and reassignments of military criminal investigators."
"Kelsey was sexually assaulted by an escort while serving in Operation Iraqi Freedom. She has received no immediate or subsequent medical treatment for an injury occurring during the assault. She has not received testing for STDs, HIV and/or pregnancy. She will engage testing facilities and counseling with civilian authorities in the near future."
"Angie was sexually assaulted by a colleague while being transported between units. She was driven to a secluded place. She was threatened with charges of adultery and fraternization upon reporting the assault."
"Lisa was sexually assaulted by a male soldier following his viewing of pornography with fellow service members. She received medical attention from medics at a combat support hospital. She has not received counseling for the trauma. She has been denied access to attorneys until her return from theater."
This kind of inaction and stonewalling might easily be attributed, by more legalistically disingenuous types, to individual offenders in the chain of command. The Department of Defense, however, contracted with retired Lieutenant Colonel Charles P. McDowell in the 1980s to develop a "rape allegation checklist," that he then proceeded to distribute the list to selected officers throughout the military for almost a decade – with training on how to use it. The purpose of this checklist, which many women’s advocates now refer to as the "permission to rape" checklist, was to reduce the number of successful prosecutions of rape in the military.
"Training on the checklist was generally highly guarded and restricted only to specific audiences," explains the PTSD Alliance. "For example, only certified police officers or District Attorneys were allowed to register at one training which was co-sponsored by the Air Force Office of Special Investigations. Even psychologists, psychotherapists, victim advocates and rape crisis counselors were not authorized nor allowed to be in attendance at this training."
McDowell himself had expressed his belief that most allegations of rape were false before he contracted himself out to the DoD. He began his classes with the completely unsupportable claim that 60% of all reported rape claims are false, and said that when rape did occur it was really "courtship behavior gone awry." He divided rape claimants into three categories: "N, S, and I personality-types," meaning, narcissists, sociopaths, and immature, impulsive, or inadequate. The FBI’s own data has long shown that false claims of rape constitute no more than 3% of total claims.
This makes the claim by the military of having reduced the incidence of sexual aggression by half since the 1950s very questionable. The goal seems to be to reduce the claims without doing much to change the culture that promotes sexual aggression, while marginalizing and even punishing the women who report it.
"…was stationed with her Fort Lewis, Wash., unit at Camp Udairi, about 15 miles from the Iraqi border, for training before deployment to Iraq. She had just finished guard duty at 2:30 a.m. and was stepping into the latrine on the edge of camp when she was hit on the back of her head and knocked unconscious, she said.
"She recalled waking to a man raping her: He had tied her hands with cord, stuffed her underwear into her mouth and wrapped cord around her head, as well. He used a knife to slice off her clothes, cutting her in the process. She was blindfolded. When she began to fight, he threatened to cut open her crotch. He then hit her with an object between the eyes, again knocking her unconscious.
"When she awoke, the man, who remains unidentified, had left. Danielle said she ran, naked, bleeding and gagging, into camp. A fellow soldier cut the cords binding her hands and mouth and put his coat around her before waking her commanders.
"She was driven to an aid station, where a rape examination was performed.
"She received no other treatment for the injuries to her head, back and knees, she says. After the exam, a commander drove her to another camp, where she was allowed to stay. She was interviewed for about three hours, she said.
"For the first few days, Danielle said, a fellow woman soldier from her old camp remained with her. Then the woman had to leave to resume training, and Danielle was left alone. Requests to see the chaplain were denied, and she was not given counseling for sexual trauma.
"An investigator scheduled a polygraph exam for her but never followed through. 'I was hysterical,’ she recalled. 'There I am, all bruised up and beaten, and somebody in my chain of command wanted me to take a test.’
"After several more days in isolation, she overdosed on anxiety medication and was hospitalized. Involvement of family and lawmakers enabled her to return to the United States.
"Within days of her return, she said, her commanders at Fort Lewis told her to get back to work, even though she still suffered from migraines, blurred vision and pain from back and leg injuries from the assault. Smith, her civilian advocate, intervened, and Danielle was granted leave."
Department of Defense estimates, gleaned from their own surveys, suggest that 3-6% of women in the military experience sexual harassment, assault, or rape. But surveys conducted outside the military of women veterans show that almost a third of the women in the military are victims of attempted or completed rape during their service, and of that number 37% are raped by multiple perpetrators. Three quarters of these women said that they did not report these assaults.
Having pointed at the military statistics of sexual aggression, let’s examine the more general statistics in American society. One in four women in our society is sexually assaulted before her eighteenth birthday. One in four women who attend a four-year college is assaulted before she finishes college. The FBI estimates that for every reported sexual assault there are approximately nine that go unreported. One in four Black women is raped after the age of 18. One in five white women is raped after the age of 18. The majority of sexual assaulters are known to the victim. The National Victim Center says that an average of 1,871 women are raped in the US each day.
Before we say that military men sexually assault women, we have to concede that men sexually assault women. According to most criminology studies, the average attacker at arrest is 31 years old. The average age of those who rape teenaged women is 22.6 years old. It is not surprising that women in the military, then, are assaulted at a slightly higher rate than women in civilian life. The average age of the military, which is now composed of approximately 85% males, is 26 years old. The majority of those troops are junior enlisted, and their average age is 19, which is also the average age of the junior enlisted female – who by her subordinate official position in the military hierarchy, her immersion in a vast male-majority, her female socialization, and her relative inexperience in the world generally, is intuited by sexual predators as victimizable.
In the first and second phases of the Gulf War, however, women troops report having been assaulted at a rate ten times higher than their civilian counterparts. This is what we have to get at before we proceed to examine the issue of the liberal state.
Christine Hansen, testifying before the Senate Armed Services Committee, cited Madeline Morris of the Duke Law Journal:
"The norms currently prevalent within military organizations include a configuration of norms regarding masculinity, sexuality and women that have been found to be conducive to rape, including elements of hypermasculinity, adversial sexual beliefs, promiscuity, rape myth acceptance, hostility toward women and possibility the acceptance of violence against women. Morris suggested that military cohesion is associated with a culture of hypermasculinity including the objectification and denigration of women through the consumption of pornography and pervasive use of sexist language. Bonding tends to occur around stereotypic masculine characteristics, such as dominance, aggressiveness, risk taking, and attitudes that favor sexual violence toward women and that reflect distrust, anger, alienation and resentment toward women. Morris concluded that norms reflecting hypermasculinity among servicemembers are imparted during the informal acculturation process encompassing the consumption of alcohol, pornography, bragging about sexual activity and attending strip shows."
War magnifies preconceptions of masculinity, a masculinity in which sexuality and aggression are synonyms, as it erases the boundaries that prohibit physical violence against human beings. War is carried out by an institution, the military that has a proven track record of protecting perpetrators to the extent possible and attempting to silence victims, an institution dominated by men in sheer numbers and in control over the formal command structures.
Out of almost 900 general officers in the US armed forces, only 34 are women. That is less than 4%. The percentage of women leading Fortune 500 companies, on the other hand, while still low, is around 16%. Of the 100 members of the US Senate, the most powerful political boys club in the world, 13 are women.
The Uniform Code of Military Justice is a Congressionally-generated code of criminal law applicable to all members of the United States armed services, adopted in 1951. The U.S. Constitution itself gives Constitutional exceptions to the military that are embodied in this military law. Those under UCMJ jurisdiction are not entitled to hearings before a grand jury, for example. And many imprisonable violations under the UCMJ do not exist in the civilian world, like leaving your job without permission, lying to your boss, or saying certain things about your job or your employer in public. It also has some very elastic violations that would not withstand the kind of scrutiny a good civilian lawyer would challenge in a non-military courtroom – like "conduct unbecoming an officer," actions "prejudicial to good order and discipline," and conduct that "brings discredit upon the armed forces." That last one was actually created during World War I to prosecute service members for unpaid debts, but is now applied more generally albeit selectively. These elastic clauses give military commanders an immensely powerful tool for control over subordinates, because these offenses can be pretty much applied to any human being who is not a candidate for canonization, if one’s life is placed under close enough scrutiny.
The UCMJ also has crimes of omission, of failure to act, like "Article 92: Failure to act. 'Failure to act’ is punishable as a dereliction of duty. The elements of that offense are: (a) That the accused had certain duties; (b) That the accused knew or reasonably should have known of the duties; and (c ) That the accused was (willfully) (through neglect or culpable inefficiency) derelict in the performance of those duties."
This, of course, is what was used in the very limited prosecution of Tailhook, but it is also emblematic of the potential power the military has as an institution to redress problems if the command emphasis exists and is backed by institutional will. This is one reason that public pressure can, in some instances, be brought to bear with particular force in the military – as it has been with above average success in the 'racial’ integration of the armed services. The military system has the power of law to issue directives, and not merely prohibitions. This is a very important distinction.
Article 134 of the UCMJ specifies, among other things, for sexual assault "(1) That the accused assaulted a certain person not the spouse of the accused in a certain manner; (2) That the acts were done with the intent to gratify the lust or sexual desires of the accused; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces." Note that under military law, there is no such thing as spousal rape (or abuse, for that matter), and that the violation of sexual assault is not a violation against the individual woman (or on some instances, man), but a violation against "good order and discipline," that is, the military as an institution. The US armed forces further specify that rape is not rape unless direct force is employed against the victim – implying that the failure to fight back, even if the victim fears that fighting back would result in serious bodily harm or even death, can nullify the charge of rape.
It is not clear yet whether the January 2005 changes that are standardizing definitions across all services, and which now include "lack of consent" in addition to force to define sexual "assault, applies to rape specifically, or if that specific charge – rape, as opposed to the more general sexual assault – still requires the element of force. No mention has been made of extending sexual assault protection to spouses in the DoD communiqués. The changes will include bypassing commanders to report to avoid collateral charges that are often leveled against the victims of rape and sexual assault, related to drinking, adultery, etc., but again this does not preclude the military continuing to level these countercharges once the rape or assault case is formally filed.
Military law, for now at least until OGC implements the changes, takes no account of mitigating factors from the victim’s standpoint – that is, the validity of consent when a woman is passed out from liquor, for example, or the inhering coercion in a confrontation with a member of one’s chain of command. Direct force is the standard until new rules are put into effect, and may still be the standard for the potential capital charge of "rape."
The fact that rape, as defined by the military – someone "who commits an act of sexual intercourse with a female not his wife, by force and without consent" (note that male-male rape and spousal rape are non-existent in the military) – is punishable by death if so deemed by the court martial authority, adds to the reluctance to prosecute aggressively, not out of squeamishness about capital punishment, but because capital cases typically involve a long, and very public, appeals process that is often unwelcome in the armed forces.
Women (and occasionally men) who are victims of rape on military installations by other military members do not have recourse to civilian courts until they have completely exhausted every remedy within the military, which can take years, especially if the military drags its feet.
But the differences between military law and civilian law in the US are more than which has the more archaic definition of rape. Military law internalizes societal norms, whether legal, social, or both, and codifies them in a way designed to ensure either the efficacy of the institution or for bureaucratic self-protection (or both). These norms are still reflections of social standards in the society-at-large, incorporated into the body of one institution of the state.
Legislatures, that is, law-making bodies, are also state institutions, and they in turn operate within the parameters laid down by a Constitution. In order to reveal the paradoxical content of military law and the military as a social institution, it is necessary to contrast it with the liberal state as a whole, and with the concept of "law" in a liberal state. It is, therefore, necessary now to turn to the question of how law operates in a liberal state.
The contrast between the military definition of rape, which is basically held over from a definition that was general in the 1950s before it came under challenge from women, and the commonly used definition of rape in civilian law serves to put the issue of rape and how it is perceived on a historical continuum.
Since rape is a state-level (as in Montana or Alabama-state) offense in civil law, we can not include very state’s rape laws as examples, and they do vary somewhat, including that a few states still do not classify forced sex between male and male to be rape. But for our purposes here, I will use our most populous state, California, whose laws are a good approximation of most rape law in the US.
California defines rape as "an act of sexual intercourse carried out:
1. "against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another."
2. where the victim is unable to resist because of an intoxicating, narcotic, or anesthetic substance that the accused has responsibility for administering.
3. where the victim is unconscious of the nature of the act and the perpetrator knows it.
4. where the victim believes, due to the perpetrator’s intentional deceptive acts, that the perpetrator is her spouse.
5. where the perpetrator threatens to retaliate against the victim or any other person, and there is a reasonable possibility the perpetrator will execute the threat – "threatens to retaliate" means threatens to kidnap, imprison, inflict extreme pain, serious bodily injury, or death.
6. where the victim is incapable of giving consent, and the perpetrator reasonably should know this.
7. where the perpetrator threatens to use public authority to imprison, arrest, or deport the victim or another, and the victim reasonably believes the perpetrator is a public official."
This definition of rape is certainly more comprehensive than the military’s more archaic one, but there are still some pretty big loopholes for offenders. First of all, if the assailant tries to have forcible intercourse, but fails to achieve "penetration," the crime is no longer rape, but assault or attempted rape, a lesser crime regardless of intent. Yet the same intent that is ignored if penetration is disproved to reduce the severity of the charge becomes the most salient issue for the defense in a rape trial, because even if penetration occurred, and force or coercion were present, the defendant can force the prosecution to prove that he intended to rape and understood that "consent" was absent.
William Kennedy Smith beat his rape charge when his lawyer convinced the jury that while the victim was forced to have sex, Smith "misread" the "signals" and "reasonably" believed she had "consented." I know that there are a lot of quotes therein, and that is because each of these categories is contestable in court – but only to the advantage of the defendant.
Because there are so many legal nuances inhering in the charge of rape, the probability of conviction or exoneration, whether a defendant is guilty or innocent, because prosecutors do not bring charges against defendants they believe will beat them (another issue for another venue), is the quality (and the price) of the defendant’s legal representation. Statistics show that being white and-or rich is a highly significant statistical advantage in court when rape charges are leveled… rich being far and away the greatest advantage.
This is where the subtleties come in, so I ask the reader’s attention and indulgence. Studying this was difficult for me, because I am accustomed to thinking of the law in the terms with which we are most familiar. But ideology is a structured set of beliefs as well as a way of knowing that renders anything inimical to it invisible, including the existence of ideology itself – which poses as common sense – and I have been habituated to seeing things in the ways determined by the unquestioned assumptions of the dominant ideology.
My children told me again and again, for example, that my failure to grasp fashion (which I enjoy ridiculing, which in turn annoys the hell out of them) was a failure to grasp sense. My own assumption here is that the reader is no more or less affected than I have been by the dominant ideology.
I will use some of the philosophical insights into liberal state law gleaned from reading two legal scholars – Dr. Catharine A. MacKinnon, law professor at the University of Michigan Law School, and Dr. Kimberle Crenshaw, law professor at the University of California at Los Angeles. I commend the work of both these activists and law professors to anyone interested in a deep critique of liberal law.
They begin with the question of the state itself. What is it? What is its nature? How do we characterize it? A lot of people have tackled this issue from a lot of angles: Locke, Marx, Weber, Dahl, Poulantzas, Gramsci, et al. All the foregoing were men, of course, and that’s why the two women I cited above are interesting in this discussion – because they have both examined the state from the standpoint of women, and both have addressed the issue of rape extensively in their work (which not surprisingly has made them lightning rods).
The liberal state is an institution of power, but it is not the sole source of power. It can send police to your door to arrest you if you violate the law, and they are legally entitled to use all necessary force, up to and including killing you, to ensure your compliance. It can send the armed forces to Iraq to occupy it, or order the bombing of an aspirin factory in Sudan, or sign allegedly-binding treaties with other states.
It makes the laws that we are then bound to follow, and even has courts to interpret the laws – because as we have seen these laws can never anticipate the complexity of real life nor the kinds of social pressures that emerge during the constant evolution of society – and this interpretive process in the courts is designed to ensure the stability of the state. This judicial motivation is an important point.
But there are obviously many other systems of power operating in society that are not state power. The power a boss exercises over an employee, the power a parent exercises over a child, the power (social and economic) that many men exercise over many women. (I already anticipate the argument that women actually exercise power over men, but that is adaptive, defensive, and negotiated power that is not borne out by or reflected in any empirical indices of actual social, economic, or political power.) The question of what the state is and does can not be answered without figuring out how the liberal state relates to these other forms of power.
When I refer to the state, I mean the organization that exercises political power within the nation-state, a geographically-defined political territory. The state is constituted by a government (not the same as a state, but a transient part of a state) that consists mainly of members of the dominant class(es), an administrative staff, generally organized as a bureaucracy, armed bodies designed to enforce laws and control populations internally and respond to "external threats" and-or militarily pursue its extra-territorial interests. The state has the power to make and interpret laws, force its citizens and residents to comply with those laws, and the power to collect taxes in order to reproduce itself as an organization.
A political regime, as I will use term further along, is not used a reference to a specific government – like the "Bush regime," or "the Saudi regime." Here it refers to the definition of regime as a set of agreed-upon principles, norms, rules and decision-making procedures, which govern the actions of the state. When I refer to the "liberal state," that is a reference to a particular regime in this sense. When Peter Gowan described globalization, in the same way, he specified it as a Dollar-Wall Street Regime. It is not a reference to the actors, but to the norms.
Government is a constituent part of the state, specifically the people who are currently running the state. The Bush government is now in control of the US state. Government’s – even exceptionally reckless and incompetent ones – can change without disrupting the essential organizational stability of the state.
'Civil society’ must be differentiated from both the 'civilian sector,’ and society at large. "Civil society encompasses all social relations that are outside the state but that influence it… Civil society is not to be confused with the people. The people can be considered as all citizens having [abstractly –SG] equal rights; civil society is citizens organized and weighted according to the power of the groups and organizations they are part of. The state formally exerts its power over civil society and over the people. Actually civil society is the real source of power for the state, as it establishes the limits and conditions for the exercise of state power."
For the purposes of this essay, when I say 'civilian sector,’ this means any adult in the United States not subject to the Uniform Code of Military Justice.
MacKinnon writes that "Gender is a social system that divides power." This is absolutely basic to understanding the law, rape, and how the military as an institution responds to rape. I can not spend the time in this article necessary to rebut notions of this sexual division of power being part of "nature," and I can not trump the idea held by some that it is God’s will, because I can not threaten the eternal salvation of those who disagree with me. My premise is that social constructions of sexuality – of masculinity and femininity – appear as "sense," the same way fashion appears to my children, but that they are interfused with systems of material power.
Gender is a social system of power division that has the notion of difference at its core. Here is one of those subtleties. In many societies, the state still puts this gender difference at the center of its legal edifice, but in ours, where the struggle by women for legal equality has gone on for some time, this question of difference has been challenged – not with absolute success, but with some significant changes – by the notion of equality in the abstract for all people, including women, who are assumed by the liberal state in many cases, to be the same as men… in fact, an abstract person, genderless in the eyes of the law.
There are several problems with this. First, the law of the abstractly equal person does not recognize a pre-existing history of material, social inequality. The old Anatole France quote that puts this in bold relief is, "The law, in its majestic equality, forbids rich as well as poor from sleeping under bridges, begging in the streets, and stealing bread." So we are left, regarding gender, with legal abstract equality that refuses to see this
historically-evolved social inequality it overlays, and which existed "prior to operation of the law."
Women in the US were regarded as chattel in the 19th Century, prevented from full control over themselves and their property by marriage coverture well into the 20th Century, denied the right to vote until after World War I, didn’t achieve legal control over their own reproductive capacity until the 1960s (this is now under attack again), and tried for ten years to get a simple equality amendment for women into the Constitution for ten years, finally failing ratification in 1982. On average, women still make only three quarters of what men do in the US. (These numbers become dramatically more stratified when race is introduced into the calculations.) My point is, without running out ten pages of statistics that consistently demonstrate inequality of social power between men and women, the social reality of perceived difference and material inequality is reflected inaccurately by the liberal state’s legal assumption (in selective instances) of abstract sameness and equality. As in all forms of Jeffersonian liberalism, including libertarianism, it is ahistorical.
This is, in fact, a characteristic of the American liberal state since its inception. The US Constitution is written in such a way that it reflected existing conditions as natural, and largely described the systems of power in which the state was prohibited to intervene. Male power was assumed. White power was assumed. Propertied power was assumed. Every incursion against those power systems by the state itself was propelled not from within the state, but from without, by social movements.
MacKinnon calls this the neutral, or negative, state.
"Unlike the ways in which men systematically enslave, violate, dehumanize, and exterminate other men [as in Southwest Asia now, for example –SG], men’s forms of dominance over women have been accomplished socially as well as economically prior to the operation of law, without express state acts, often in intimate contexts, as everyday life."
(Image by Valerie Patterson)
Since state power is erected upon pre-existing ("prior to the law") social power, just as we can call the US liberal state a capitalist state, we can call it male. (We can also call it white nationalist, about which I will write more, further down.) The 'neutral’ state professes neutrality, objectivity. It claims to be a neutral arbiter of abstract equality, and thus sidesteps the issue of concrete inequality – assuming it out of existence. The negative state is the liberal state that says what the state shall not do – no laws shall be made abridging this freedom or that freedom – which can then only meaningfully apply to those who already have the material means to exercise these freedoms meaningfully.
The liberal state’s legal episteme is neutral in its reflection of actual inequality, reflecting that concrete inequality back into society and renaming it abstract equality.
If the liberal state is prohibited from intervention in affairs declared private (the basis for tacit state support for domestic abuse until well into the 20th Century – "a man’s home is his castle," etc.), and if the private, or civil sphere is the sphere in which male power is most directly exercised, then the state simply forecloses a political solution to that system of unequal power, and therein supports it. This is the contradiction in the liberal state and the liberal conception of law that allows white men to sue for "reverse discrimination," and that equates corporate campaign spending during elections with "free speech." Actually existing power inequality is accepted by the state as a background, as part of nature, in which it can not, will not, interfere.
Law in the liberal American state is also precedential, based on precedent. It explicitly reflects existing conditions, then naturalizes them. The institutionally same Supreme Court can render the Dred Scott decision in 1857, then turn around and render Brown v. Board of Education in 1954. In each case, the court reflected the social realities of shifting power, as they were at the moment. Civilian law in the United States is interpreted by precedent… in effect, by the status quo. And the interpretive motivation for the judiciary is not transcendent truth, but stability of the state.
The paradox for women has been that feminists "caught between giving more power to the state in each attempt to claim it for women [have left] unchecked power in the society to men," because the liberal state resists intervention into social power structures, like gender, and reflects those same structures, pretending now that this is an exercise of juridical 'objectivity,’ in precedent. Just as in other cases of power struggle, the shift created outside the law by social movements has preceded (the root word of precedent) the juridical reflection of these changes in law.
Abounding in metaphysical subtleties!
"Those who have freedoms like equality, liberty, privacy, and speech socially and economically keep them legally, free of government intrusion. No one who does not already have them socially or economically is granted them legally." In fact, a demand for them legally will generate a reaction that the disempowered group is seeing "special rights," the claim deployed against gay rights advocates.
"Philosophically, this posture is expressed in the repeated constitutional invocation of the superiority of 'negative’ freedom – staying out, letting be – over positive legal affirmations. Negative liberty gives one the right to be 'left to do what [he] is able to do or be, without interference from other persons.’ The state that pursues this value promotes freedom when it does not intervene in the status quo… For women, this has meant that civil society, the domain in which women are distinctively subordinated and deprived of power, has been placed beyond the reach of legal guarantees. Women are oppressed socially, prior to the law, without express state acts, often in intimate contexts. The negative state cannot address their situation in any but an equal society – the one in which it is needed least." (MacKinnon)
"That’s some catch, that Catch-22."
Consent and Intent, Sameness and Difference
On February 28, 2004, President Jean-Bertrand Aristide of Haiti had US Marines enter his home as his American contract personal security detail stepped aside. The person in command of the Marines presented Aristide with a letter of resignation and the information that paramilitaries intent on killing him and his family were en route. He was informed that if he signed the letter of resignation, he and his family would be flown to safety. If he refused, he and his family would be left to the tender mercies of the paramilitaries, and his security detail would be commanded by the US Embassy to step aside. He signed the resignation, and Colin Powell said the next day that his signature was voluntary.
In the strictly philosophically technical sense, like when the existentialists claimed that human beings always have a choice, because they can commit suicide, Aristide consented.
Consent is not a cut-and-dried affair, as liberal law would have it. The fiction that because individuals can make choices, everything they do absent a gun to their heads is "free" is just that. A fiction. But it is a fiction by virtue of what it doesn’t say, by what it abstracts. Because the individual walking autonomously through the world making pristine choices each day is an abstraction. This individual has no complications from life with a family of origin, or the absence of one. He has (because the abstract individual is always male) no addictions or compulsions that he can not control or understand. He is not motivated by irrational fear, guilt, unfocused anger. He has no history, no attachments, no complications in his life. He has never been manipulated, or indoctrinated, or mugged. He doesn’t have obligations and responsibilities to children that limit his choices or force him to take degrading or underpaid work. He is never subjected to a situation that is in any way morally ambiguous in which he has to choose a course of action anyway. He has no post-traumatic stress or any mental/emotional difficulties on account of it. He has access to all pertinent information, and never behaves in ways that are unintelligible to himself. And he doesn’t exist. Neither does she.
Consent is real, but consent is not clear-cut. It exists on a continuum, on multiple continua. The liberal state assumes consent because it assumes abstract people. But because the state is neutral and negative, as explained earlier, and therefore reflects the status quo, the state assumes that women generally consent to sex with men.
My next point is not that women do not consent to sex. Let me say that again for emphasis. My next point is not that women do not consent to sex. Women have a real degree of agency, including sexual agency, but it is not absolute.
Women’s 'consent’ to sex is never unequivocal. It can never be unequivocal in a society where gender is a system of unequal power. But the law of the liberal state assumes consent, as a constantly renewed, ahistorical, and yes-or-no category, and the burden of proof in cases of rape is on the victim to prove that there was no element of consent on her part – at the same time proving that even if consent was absent, the perpetrator "understood" that consent was absent. In court, the male perpetrator faces off against the female victim as an abstract equal in the eyes of the court, which can not acknowledge the social inequality of men and women even as it reflects it in all its assumptions and precedents. In society, male and female are defined as different. In court, they are counted the same (with some exceptions, the military being a big one – and one that contributed to the defeat of the Equal Rights Amendment), with the key criterion for judgment being "consent" between abstract equals.
Consent, as an absolute category, is problematic in the real world, because it is always conditioned – not just by relative power and powerlessness – but even by the way desire itself is socially constructed. Life’s complexity does not allow for such thing as absolute consent, yet in the courtroom of the liberal state, not only is absolute abstract consent assumed, it is defined only in the context of an instant, and has to be proven as a negative – prove that you did not consent.
Left behind in that courtroom are the pink frilly baby clothes, the early socialization for dependency and weakness, the premium placed on looks instead of performance, the cruel gender policing of a full childhood and adolescence, the changed attitudes of parents and peers at puberty, the constant inundation of gender propaganda that portrays men as sexual aggressors (and eroticizes this) and women as sexual whore-Madonnas (also eroticized), the economic dependency of women and the pressure to seek out a male mate for security, the inhering competition between women that leads to the self-hatred of women, the sexual assaults and harassment of childhood, adolescence, or adulthood, the constant fear of rape that informs every decision about where and when to go, the teachers that ignored you to call on boys four times more often (even women teachers) until you quit trying, the cruel woman-jokes, the inequality of treatment by parents between brothers and sisters, all of it… left behind. In the courtroom, this is all irrelevant. The liberal state’s sole recognition of history is how many times and with whom she has had sex, and then only to create doubt about her failure to "consent."
You, the woman who has been raped, must now overcome all that and the post traumatic stress associated with the rape, face your feared attacker as a legally abstract equal, and prove a negative… prove that you did not consent, and that even if you did not "consent," that your attacker understood you had not consented and "intended" to attack you anyway.
Rape is a tough thing to prove in a civilian court. In a military court, as the military now operates, with an even more restrictive definition of rape and a culture that has demonstrated its hostility to the accusation of rape, and the institutional tendency to protect itself from scandal, and the more autocratic control exercised by the executive leadership over the judiciary, and the probability of institutional retaliation, it is even tougher.
Kimberle Crenshaw returns us to the contradictions of sameness and difference… with a twist. In her thesis on "intersectionality," she discusses how Black women can suffer discrimination as Black women, not as simply Black, and not as simply women, but as Black-women, and the liberal state refuses to recognize this "intersection." In the same way the liberal state disaggregates actual women from the actual experience of women as a group and reduces them to abstract individuals to raise the bar of proof in court, the categories of actually existing discrimination are broken apart and isolated in American courts by denying this "intersection."
In citing Degraffenreid v. General Motors, a case where GM had clearly discriminated against Black women, the district court forced the plaintiff to show separately how GM discriminated against (1) women and (2) Blacks. To admit Black women as a category, the court argued, would open "a Pandora’s box." The reality of intersecting oppression, then, that is lived each day by most Black women, which differs from that suffered by Black men or by white women, was intentionally not recognized by the court, not because it didn’t exist, but because it could be a de jure recognition of a de facto practice that might destabilize a state institution – open Pandora’s box. (Of course, the scary box belonged to a woman, who gets blamed for the multiple ills of the world.)
Again, what is reflected in this court’s procedural decision is an unacknowledged reality that exists prior to the law, but also in this case as part of precedential law. Past discrimination suits regarding gender have as their unacknowledged premise that "women" means white women, and that "Black" means privileged Black male. This situation has been created by a juridical equivalent of the "neutral" or "negative" state embodied in law – what Crenshaw refers to as the "but-for" rule.
Here’s how "but-for" works, according to Kimberle Crenshaw:
"Consider first the definition of discrimination that seems to be operative in antidiscrimination law: Discrimination which is wrongful proceeds from the identification of a specific class or category; either a discriminator intentionally identifies this category, or a process is adopted which somehow disadvantages all members of this category. According to the dominant view, a discriminator treats all people within a race or sex category similarly. Any significant experiential or statistical variation within this group suggests either that the group is not being discriminated against or that conflicting interests exist which defeat any attempts to bring a common claim. Consequently, one generally cannot combine these categories. Race and sex, moreover, become significant only when they operate to explicitly disadvantage the victims; because the privileging of whiteness or maleness is implicit, it is generally not perceived at all… Because the scope of antidiscrimination law is so limited, sex and race discrimination have come to be defined in terms of the experiences of those who are privileged but for their racial or sexual characteristics. Put differently, the paradigm of sex discrimination tends to be based on the experiences of white women; the model of race discrimination tends to be based the experiences of the most privileged Blacks. Notions of what constitutes race and sex discrimination are, as a result, narrowly tailored to embrace only a small set of circumstances…"
Even in the liberal state’s acknowledgment of social difference (accomplished under intense pressure from previous social movements), there is still the attempt to take material social difference and transform it into juridical abstract sameness. Note also the requirement to prove, as in rape law, the offender’s intent. The perception is that this burden of proof is designed to protect the innocent and establish a modicum of due process – which in itself is a laudable goal – but the hidden characteristic of this form of law is that there is no recognition of power prior to the law, of social systems of inequality, and the question of state intervention to redress a social problem is corralled inside the question of individual culpability, even when overwhelming empirical evidence points to a real system of unequal power, ergo, an undemocratic social reality.
Before I explain why the original problem of rape in the military might be subject to redress more easily than the complex systemic problem in the liberal state at large, I want to refer to another dimension of this problem cited in Crenshaw’s essay, that I have intentionally (no puns intended) held back to make a point.
White feminist critics of the liberal state have in some ways failed to interrogate the social reality behind their own unintended abstractions. Just as the "but-for" system in antidiscrimination law assumes the abstract female to be white, the rape critique of white feminists fails to take into account the standpoint of Black women. I can not possibly say this better than Crenshaw, so I will allow this excerpt to speak for itself:
"A central political issue on the feminist agenda has been the pervasive problem of rape. Part of the intellectual and political effort to mobilize around this issue has involved the development of a historical critique of the role that law has played in establishing the bounds of normative sexuality and in regulating female sexual behavior. Early carnal knowledge statutes and rape laws are understood within this discourse to illustrate that the objective of rape statutes traditionally has not been to protect women from coercive intimacy but to protect and maintain a property-like interest in female chastity. Although feminists quite rightly criticize these objectives, to characterize rape law as reflecting male control over female sexuality is for Black women an oversimplified account and an ultimately inadequate account."
"Rape statutes generally do not reflect male control over female sexuality, but white male regulation of white female sexuality. Historically, there has been absolutely no institutional effort to regulate Black female chastity. Courts in some states have gone so far as to instruct juries that, unlike white women, Black women were not presumed to be chaste. Also, while it was true that the attempt to regulate the sexuality of white women placed unchaste women outside the law’s protection, racism restored a fallen white woman’s chastity where the alleged assailant was a Black man. No such restoration was available to Black women.
"The singular focus on rape as a manifestation of male power over female sexuality tends to eclipse the use of rape as a weapon of racial terror. When Black women were raped by white males, they were being raped not as women generally, but as Black women specifically: their femaleness made them sexually vulnerable to racist domination, while their Blackness effectively denied them any protection. This white male power was reinforced by a judicial system in which the successful conviction of a white man for raping a Black woman was virtually unthinkable… The lynching of Black males, the institutional practice that was legitimized by the regulation of white women’s sexuality, has historically and contemporaneously occupied the Black agenda on sexuality and violence. Consequently, Black women are caught between a Black community that, perhaps understandably, views with suspicion attempts to litigate questions of sexual violence, and a feminist community that reinforces those suspicions by focusing on white female sexuality."
The US state is capitalist, in that it reflects the power of a capitalist class inhering in civil society, and recruits its governments from that class. The US state is male, in that the liberal state naturalizes male power existing prior to the law. And in the same way, the US state is white-nationalist.
As I use the term 'nationalist’ here, this is not the same as nation-state or country, a geographically defined political entity. A nation, as I employ the term as the root of 'national-ism,’ is more akin to what we usually think of as ethnicity. It relates to a "stable community" of people who share a common language, culture, and history, and a distinct relation to other "nations."
White nationalism, in the current context, is the phenomenon described by people like David Roediger, in his book The Wages of Whiteness , to describe the simultaneous historical formation of US society – as it is ideologically perceived and represented – and the development of "white" as a racial-national identity. Just as earlier explained for the 'naturalization’ of existing social power prior to liberal-state law, this is a phenomenon that is indirectly perceived, because – like background music in a film – we take it for granted even as it guides us through an emotional interpretation of events. The norms we assume for American society are in fact historically developed norms associated with "white" culture. White identity has proven flexible over time, and as people have been more thoroughly assimilated into 'white’ social norms, they have been granted access to white-national identity – examples being the Irish and Italians, and even 'white’ Latin Americans. My use of the term white nationalism is not synonymous with the explicit white nationalism of organizations and associations of self-identified white supremacists.
The issue of rape, as it relates to the state, and as it relates more specifically to the military, is bound up in class, bound up in gender, and bound up in race – all of which exist outside the military and are only reflections within the military of that larger social context.
The idea, then, that rape and all its social permutations are somehow exclusive to the military is demonstrably false. And while military demographics and culture certainly magnify rape’s precursors, and the military system likely contributes to massive under-reporting of sexual aggression including rape, a social phenomenon must already exist to be magnified. Rape does not inhere in military activity or institutions. It inheres in patriarchy.
What differentiates the military is how it legally treats sameness and difference.
The mystery of a mirror is not that it reflects left as right and right as left. A mirror reflects the image of the front in the direction of the back. This can serve as a kind of conceptual analog to how the military and civilian sectors treat gender.
The United States Armed Forces explicitly treats women and men differently and codified that difference in law until the repeal of combat exclusion in 1991. The civilian legal system attempts to conceal difference by positing an abstract equality.
But in 1948, Congress specifically prohibited women by law (Title 10, Section 3012 of the United States Code) from serving in any "combat role" in the armed forces, but did not apply this "combat exclusion" to the Army. The Army had a separate Women’s Army Corps (WAC) (all white) at the time, within which there were no combat positions, and the application of combat exclusion was seen as unnecessary. When the Army fully integrated women and men into The Army in 1978, rather than go to the trouble of amending the law to extend combat exclusion to the Army, they simply implemented a policy stating, "Women are authorized to serve in any officer or enlisted specialty except those specified at any organizational level, and in any unit of the Army except Infantry, Armor, and Cannon Field Artillery." George H. W. Bush’s signed into law the National Defense Authorization Act repealing the combat exclusion laws which prohibited women from flying combat aircraft and serving on combat ships, and combat exclusion is now almost exclusively a matter of policy, not law.
Given the actual numbers of personnel in these fields in the Army and the Army’s system of promotion, the Combat Exclusion Policy effectively closed off the majority of positions in the Army to women, and denied female NCOs and officers access to the most rapidly advancing career tracks.
Since 1978, bit by bit, women have fought their way into more and more jobs in the Army and the other services, to include combat aviation positions, though they are still frozen out of the majority of actual positions precisely because they are biologically female.
But the Army, needing women to maintain their numbers overall, and initially failing to attract enough women, and having a variety of physical standards that most female high school graduates – for obvious reasons of socialization – had difficulty meeting, simply established different standards for women and men. Again, the military officially recognized "difference," though it was a difference (1) in standards that many military people, including this writer, find to be of questionable value (In my combat roles, I never was required to run two miles for time, do situps, or do pushups, for example.), and (2) the standards seem designed to highlight average physical differences between men and women, rather than relate to the specific tasks required to do certain jobs in the military.
The most insecure male military brass has retrenchment positions when the irrelevance of many of these standards is explained, like cohesion, discipline, etc., but studies done on male-female units have shown that mixing the sexes has zero impact on these phenomena, at least as far as can be measured by martial think-tanks like the Rand Corporation. The same studies show, in fact, that performance of male and females is generally the same, too.
The real forward-facing-backward value of the double-gender-performance-standards in the military is that it remains the single most commonly cited source of friction for male soldiers serving alongside women and competing for the same positions, and so perpetuates not direct inequality in positions that are open to women and men, but chronic male resentment. This resentment is in evidence in almost any discussion by military enlisted men about the subject of women in the military.
The difference between the military and civilian sectors on the question of gender, and specifically on the question of rape, is not what these sectors do do, but what they can do, and which is more permeable to the impacts of activism and mass movements.
The State, Civil Society, the Military, and the Masses
The United States armed services take the self-same masculinity-defined-as-sexual-aggression that the liberal state reflects (but can not openly acknowledge without blowing its cover as 'objective’) and actually institutionalizes it. It polishes that masculinity up and smoothes over its ugliest parts – in much the same way film and other ideological media do – but the military is actually defined by its potential for and willingness to employ violent aggression. In a typically bureaucratic turn-of-phrase, we taught cadets at West Point that they were training to become "managers of violence."
Violence can be aggression, and it can also be unavoidable self-defense against aggression. Ascribing some kind of equivalence to all 'violence’ merely confuses every issue in which violence is a factor. Violence is not intrinsically anything, except whichever definition you choose for it – there are eight different definitions available from a simple Google search. If we say shooting someone is an example of violence, we cannot infer much beyond that it was a 'violent’ act, a shooting, until we ascertain the specific circumstances of the shooting. Military violence in the US is always dressed up as a morality tale, with an assumed male protector defending the feminized (helpless, childlike, damsel in distress) defenseless from the likewise feminized (sensuous, cowardly and irrational) enemy. It is important that we not accept any of the premises of this morality tale.
The military’s justification for combat exclusion has been that women (1) have a limited aptitude for violence that calls into question whether they will function effectively in combat (there is a ton of evidence that flatly contradicts this), (2) that women will react fearfully to violence and therefore not have the self-discipline for combat. The same evidence rebuts this, with the additional point that men – even after training – still experience intense fear in combat, and many in current conflicts have hidden, fled, or otherwise reacted in perfectly understandable ways when faced with combat violence. This is often overlooked or covered up. (3) The military claims that the average woman does not possess the physical strength to perform combat functions – another baseless claim that has been disproved. There is some heavy lifting involved in every job, but nothing that any reasonably fit, grown woman can not do. (4) That the inclusion of women with men in combat will cause the men to jeopardize themselves as they revert to their inherently chivalrous ways to protect the wee females. The same people who tell us this, also say that soldiers don’t fight for abstractions, but for their buddies, and various creeds in the military proclaim that no comrade will ever be abandoned on the battlefield. If the buddy is a woman, then apparently the woman, by virtue of being a woman, is somehow culpable for the soldier’s dereliction in doing what he has been told he is supposed to do for male comrades. (5) That women who are captured on the battlefield… will be raped.
The latter is considered a self-evident argument. Yet, as I have shown above, the military itself goes to a great deal of trouble to suppress and conceal rape charges, at the expense of rape victims who are themselves military members.
So the military is caught in its own paradox. They conduct combat training with a heavy emphasis on male-identified aggression, as any honest veteran can tell you – constantly exhorting one to "be a man," "sound off like you got a pair," and describing the most physically courageous males as having "big, brass balls." At the same time, in the face of social pressure developed by women since the feminist struggles of the 60s and 70s, and faced with the constant necessity to legitimize itself to a controversy-allergic Congress, they have to tie themselves in knots to represent military masculinity as simultaneously sexual (the province of males) but not sexist (as most military people understand the term, in purely liberal terms).
The reality for the military comes to the surface under combat pressure.
In some of the most graphic and disturbing (for me, especially, as a combat veteran) stories and images coming out of Iraq are the uncensored accounts of GIs interacting with Iraqi detainees. There is a boiling-point anger visible among the GIs, one they often have to conjure up to do their jobs, and when they address their detainees, there is one epithet that is far and away more common than all the others. Bitch!
Anyone who doesn’t think this is indicative of how sex and aggression are merged as masculinity, and reflected in military practice, needs to go watch the last Denzel Washington male-revenge fantasy, Man on Fire, where one of the defining moments of his righteous male revenge-energy was when he symbolically raped his captive by placing explosives up his captive’s ass. This feminization of the victim – in this case a wicked foreigner who could reflect the War on Terror to the US public – invited the audience to participate by exulting at the (climactic!) explosion.
And, of course, we remember the "sexual humiliations" of Abu Ghraib, which were in fact sexually assaultive, pornographic feminizations.
Masculinity constructed as sexualized-violence and violent-sexuality is not some alpha-male genetic defect; it is not natural. It is an historically evolved reflection of a division of labor and a division of social power. The military – an organization within the state – simply took this construction into itself, and made itself in masculinity’s image.
The state and the military are institutions that are articulated and fused with other institutions and social entities, and with the military inside the state as one of its fundamental constituent parts. And specific histories of development give unique characteristics to each and every state.
The US state is a liberal regime, and it is implicitly capitalist, male, and white nationalist. Its capitalist character, I contend, is the least flexible aspect of its character, based on the forces of civil society that wield the most power to "establish the limits and conditions of state power." We can look at churches, and universities, and NGOs, etc., etc., but the most powerful non-state actors influencing the US state are capitalist enterprises – defined here as organizations constituted to invest money for the primary purpose of gaining a return-plus on their investments – for the accumulation of capital. For an in-depth discussion of "the poles of capital," productive and speculative, and how that balance of power is shaping the world, I recommend Gowan’s The Globalization Gamble – The Dollar Wall Street Regime. For this discussion, it will suffice to point out – if there is any doubt of my assertion – that a review of the campaign finance records of any state or federal election will bear me out.
Capitalism is a highly complex international social system – its international politico-economic dimension is one I call 'imperialist’ for shorthand – that is, it requires the domination by economic and military means of other countries as the basis of its continued ability to accumulate capital. (On the left, imperialism has long been called "the highest stage of capitalism," which is fine, but fails to account for the many changes in form and practice that it has taken – which leads one to ask what is the highest, or last, stage of imperialism?)
Economically, capitalism is now necessarily encumbered with regulations and bureaucracy by the state to stabilize and protect the advantages of the dominant classes. Capitalism has always been regulated by, and in fact was built up directly in its initial phases by, the state. The state is the only body with the monopoly on legal force required to enforce property relations, to print currency, to make the laws, protect the dominant class from insurrections, strikes, etc., that make the system function in its economic dimension.
The pure 'capitalism’ espoused by capitalist-utopians such as Ayn Rand and Reason Magazine has never existed and can never exist. It is the reductio ad absurdum utopian fantasy of a Jeffersonian liberal concept that is ahistorical, having never been actualized anywhere or at any time in history, and abstract, the principles of which would allow, for example, any citizen to own a nuclear weapon so long as s/he didn’t actually use it.
Actual capitalism was built up on war, plunder, state-sanctioned piracy, the slave trade, and the expropriation of millions of square miles of land from various peoples – often accompanied by campaigns of genocide. It has been developed and maintained using similar methods, and its juridical consolidation has only been possible by the liberal-state mechanism of false neutrality and feigned ignorance of power inequalities that exist prior to law, just as we discussed above. This system includes the continued validation of claims to 'property’ that was taken through conquest and extermination.
In the concrete and current world capitalist system, one state holds pivotal power – the US. This power is guaranteed monetarily through dollar hegemony, and militarily through the US armed forces.
In a seeming paradox, the US itself, as an economic society, is producing fewer and fewer commodities – what used to be the basis of relative capitalist power in the world system – but consumes a wildly disproportionate share of the world’s commodities. This is important to note, because there is also no abstract universal state except in our taxonomies. In the world, there are only real, historically contingent states, and the US is uniquely-unique among them right now. Historical allusions are inadequate, not to mention downright inaccurate, to describe the United States of 2005 because, in many highly significant respects, no such state has ever existed before.
And the US state, in particular the military as a constituent part of it, is in a condition of deep disequilibrium.
One of the peculiarities of capitalism, often ignored by both right and left, is its dependence on non-capitalist sectors of society. Pro-capitalists have been inclined to describe the system strictly by market mechanisms. Anti-capitalists have been inclined to describe the exploitative appropriation of surplus-value in the production process, and leave it at that. But if the system depends on non-capitalist sectors to (1) realize a return on investment, or (2) exploitatively valorize capital, then what are these non-capitalist sectors, and how important is it that we understand them?
What work and what resources are drawn into the total social effort to ensure its continued and stable functioning that are neither bought nor paid for? Eco-feminist Maria Mies has answered this (correctly, by my reckoning) with three things: colonies, nature, and women.
I want to add one more – the state.
While the US state is capitalist, male, and white nationalist in its reflection of the power and material interests of those who dominate civil society, as an organization the state categorically can not function in a capitalist way. Not only would it not be able to show a profit – the sine qua non of 'capitalist’ activity, it would abdicate its most important function of providing stability for the whole capitalist class if it were incapable of a degree of autonomy from individual capitalist enterprises and the market itself. The attention span of a productive capitalist is one business cycle, and for speculative capitalists it is sometimes measured in minutes. The state is responsible for ensuring the long term conditions for the continuing power of the class as a whole, and therefore must be something of both a political manager on a world scale and an umpire.
So what has all this digression got to do with rape in the US military?
The military, an absolutely essential constituent part of the state, is even less capable of working in a capitalist way than the state at large. The attempt of the Rumsfeld Department of Defense to introduce more 'capitalism’ into the military through contracting-out much of the military’s work and attempting to impose capitalist values – that is, a market ideology – on the military has significantly contributed to weakening the institution, precisely because the military mission has nothing intrinsically to do with return on investment or valorization of capital. In fact, the contrary is true. Effective militaries exhibit such institutional norms as mutual-dependence, collectivity (enforced if necessary), cooperation as opposed to competition, subordination of the individual to the requirements of the group, cohesion, etc. The military produces nothing. It is in no way designed to create profit – even if extrinsically in a capitalist society it is the guarantor of capital.
The military can and must operate outside the articulated patterns of economic life without directly threatening either the (gendered) social relations of the civilian sector upon which the economic system rests or the complex, almost-impenetrable, liberal legal regime of the state. Odd as it may sound, given the macho culture of the current military, the military might be the state institution that is most vulnerable to a social movement against rape.
The questions raised by rape about the entire social architecture of gender are so deep and so resonant that they could be disruptive of the ideological legitimacy not only of a highly gendered accumulation regime in the economic sphere of society, but they could challenge the feigned neutrality which forms the foundation of liberal law.
The liberal state and its laws have achieved such a high level of complexity, and are so utterly insulated within the associations that form civil society, and the legitimation of the gender order is now so vulnerably dependent on this liberal faux-neutrality – a neutrality that has been turned on the women who have attempted to use it, that there are layers upon bureaucratic, legislative, and judicial layers that have to be penetrated to get only incremental results.
But, as the military demonstrated when it was ordered to integrate the armed forces, if the Department of Defense is ordered to solve a problem, for the uniformed services this becomes nothing more or less than a question of command emphasis and will. And because military law is not negative-law, not precedential law… because it is outside the Constitution in many ways, and because the decisions in the military do not have a direct impact on the socials structures of accumulation that are immediately threatening to dominant sectors of civil society, the armed forces have a greater institutional potential to redress rape.
We are catching a glimpse of this ability to respond by the military’s latest response with new directives and policies to the latest rape scandal in Iraq and Kuwait.
I do not advocate relinquishing the struggle against rape and the practice of the liberal state with regard to rape. On the contrary, I do not believe there is any more urgent issue in US society than stopping the widespread and systematic violence against women as women. But I want to make a specific proposal about how to respond to rape in the military.
Action on Rape in the Military
Before rape will be taken seriously and in a new context, as a crime against women that reflects a system of gendered power, there must be a mass movement against rape, and it must be understood in ways that transcend its definition in liberal law. Moreover, the mass movement against rape must be part of a movement that identifies all violence against women-as-women not as a technically determined legal aberration but as a means of enforcing the social power of men over women. And before rape will become an issue that receives the kind of command emphasis it needs in the military voluntarily, this mass movement must create the conditions that will make that inevitable.
We have already seen some of the inherent limitations in the existing "women’s movement" to take this on in a more meaningful way – the captivity of the most well-resourced (white, 'middle-class’) sections of 'feminism’ by liberal civil society. Liberal civil society has as core values the maintenance of social stability and the stability of the state. But, as was pointed out, patriarchy as a system of power, within which rape is an extra-judicial means of social control, is articulated into all social relations, and can not be overcome from inside that system, or without creating a fundamental destabilization of it. I feel fairly safe saying that this actually holds true about imperialism as well.
We don’t need elections that only serve to legitimize existing relations of power. We need actions more akin to strikes and other disruptions. Instability must be the goal.
This, of course, requires the development of a much higher level of consciousness than currently exists about gender, the state, and how these relate to rape. On the other hand, the issue of rape is not one whose urgency is difficult to describe to countless women.
This brings me back, yet again, to the military, which – oddly enough – may ba a very good place to begin the process of building that larger, more radical social movement against patriarchy.
Not only is the military the key state institution – far more central than, say, the Department of State – right now in US foreign policy, in our current ideological milieu of hyper-militarism, the armed forces are under a spotlight that makes them the Achilles’ heel of the legitimation of the US state. Any disruption of the idealized image of the military with which the public must be indoctrinated has a powerful ripple effect against the more general perception of legitimacy of, first, the government, and later, the state and system.
Far more pressure can be applied to elected officials, bureaucrats, and military commanders by a campaign against rape in the military. The reason these people collaborate as they do, to suppress public discourse on the issue, is because it is so sensitive. The subject of rape simultaneously confronts them with the necessity to express unqualified outrage at each instance of it and the need to avoid any discussion of rape’s larger, systemic, social implications. It generates tremendous controversy, and the rationalizations required for said public officials are skin-thin and easily demolished in any real debate.
The automatic response of all these governmental strata will be to make it go away as quickly as possible, and they will bend over backward to do so if there is any sustained pressure on them. It is a way to win concessions, but more importantly it is eventually a way to wake up and unite with women who are in the military and who have been subjected to all manner of sexual aggression there. This is an integral part not just of the struggle against rape and patriarchy, but to build resistance inside the US military.
For those uninitiated in the military bureaucracy, I need to point out that there is no more potent hand grenade that anyone can roll into the room of a military commander’s office than a Congressional inquiry. Military commanders who are contacted by any Congressperson about any of their troops’ situation are required to reply in writing within days to any questions or concerns posed in the letter of inquiry. Precisely because the officer personnel management system (OPMS) is so intensely cannibalistic, any whiff of controversy that might get out and 'reflect’ badly in any way on said officer’s own commander has the potential to end a career.
The initial stage of a campaign targeting the military on the issue of rape is not to win policy concessions, or even to begin organizing within the military. It is to raise the visibility of rape in the military to the point where it can not be ignored. The fact that it has been systematically covered up in Iraq is a huge issue, and one that merges with the anti-war effort itself. But simply complaining about it is not raising its visibility; to do that, public visibility must become a strategic organizing goal designed to reach the largest possible audience with the most sustained intensity possible.
As part of that effort, military women must be made aware of the extra-military resources available to them for the redress of rape and other forms of sexual aggression. Survivors Take Action Against Abuse by Military Personnel (STAAAMP) http://staaamp.org/ has a hotline for military victims of sexual aggression (including men who have been raped by other men – which also happens in the military) at 1-937-879-2568.
While I have said that policy concessions are not the initial phase or the only goal, there are some concessions that must be fought for, though not in such a way that it becomes a form of lobbying – the death knell of any militant social movement.
Lobbying is working to convince legislators and others to do what you want. It involves building relationships with them, and it consolidates existing relations of power. Creating the conditions outside the legislature that forces them to meet a demand is not lobbying, and it does change the relations of power.
At least one of those concessions must be forcing the military to redefine rape, and demanding not a definition that is on par with neutral liberal state law, but one that uses the advantages of codified law to explicitly establish rules of procedure and evidence that, as Ann Scales says, test whether said procedure or presentation of evidence itself "integrally contributes to the maintenance of an underclass or a deprived position because of gender status" and rules it out if it does. The question of consent must be disengaged from the archaic criterion of direct "force," and not merely as a component of "sexual assault." A woman’s sexual history prior to any charged incident must become unequivocally inadmissible. Use of the McDowell checklist by military defense attorneys needs to be made a violation of policy – an act of inappropriate legal hostility against a plaintiff – tantamount to insubordination.
The complexity here is the difference between policy and law. Congress must make the laws that amend the UCMJ, while policies can be issued by commanders up to and including the Secretary of Defense and the President.
Here are some policies that can be implemented at will by commanders from the level of post/base and above. Pornography that is sold on the installations can be banned, as can the possession of pornographic materials while troops are on post or on duty. Pornography is hate-speech, demeaning to women the same way racial caricatures would be demeaning, yet it is still widely tolerated. Sexually-exploitative bars and nightclubs that feature topless or nude dancing can be placed off limits. A special assistant to the Inspector General can be assigned to exclusively handle sexual aggression complaints.
Yun Kum Yi, raped and mudered in South Korea by an American soldier
On the issue of gender, ever since the military found it necessary to fill out the rosters by recruiting and integrating women into the military, it has wanted to have its cake and eat it, too.
As commanders, male military officers – as well as most members of Congress, the judiciary, and the executive branch – actually believe that masculinity and aggression are synonymous, that this is a product of nature and not socialization, and that men will perform consistently better in war than women. Their position on this is not a conscious effort to keep women in their place to preserve their own power in spite of their own knowledge that women are perfectly capable of performing military tasks, etc. They believe what they used to say on these matters; and this is reinforced by all the affective attachments they have to their own individual sexual "identities."
On the other hand, as careerist bureaucrats and political creatures (in the limited, pejorative sense), these same commanders do not want to jeopardize their careers by being drawn into the line of fire of the social movements – particularly issues that smack of race or sex.
It is this split institutional personality on sex that created the contradictory firestorms around the whole Jessica Lynch affair, which tied them into rhetorical knots. See my own analysis of this particular episode at Freedom Road’s web site.
The gap between the two poles of this contradiction is big enough to fly through with a 747. This is precisely the reason that commanders at every level feel compelled to make the issue of rape go away. Rape is the 747.
All of us owe this struggle to the women who have been victimized, and we owe it to all women.
(References available on request)