Contesting the nexus between law, rape, and property
by Jenny Logan
Green square with stylised yellow writing & graphics that says Jenny on Law, rape and property
If we are to take the safety of victims of gender-based and sexualised violence seriously, the singular focus of much anti-rape discourse and scholarship on gender requires a rethinking. While law reifies normative gender categories in various ways, these processes of gendering differentially affect subjects within and outside of the household, the workplace, the prison, and the border. Importantly, while legal gendering processes position subjects in hierarchical relation to others as a form of status property, gender is rarely the key determinant of one’s vulnerability to sexual violence: rather, this tends to be fixed by the totality of property relations that position a subject in space and as they move through the world. A white American cis woman staying in a resort hotel is worlds away from the migrant woman who cleans her hotel room, or the trans sex worker labouring in the room next door. Normative and non-normative genders take different shapes within different spaces depending on a web of legal relations, including everything from employment contracts to citizenship documents, which mediate and shape a variety of spaces of violence.
In August 2021, as the U.S. announced its plans to remove military personnel from Afghanistan, I began a slow but panicked process of assisting a friend to apply for humanitarian parole for her Afghan family in the United States. The family had four daughters and had been previously targeted by the Taliban for its activities advocating for women’s educational rights, as well as providing medical services to marginalised religious groups. We were in a race against time to get them approved to leave the country before the Taliban shut down the Kabul airport.
Thousands of dollars, hundreds of documents, and countless hours later, the applications were submitted - only to remain in a strange limbo through the long month of August and into September. The department would neither approve nor deny the applications on behalf of Afghan refugees. As it was explained to us off the record, this was an intentional tactic employed to deprive applicants of the right to appeal. We were told to advise the family to take what belongings they could carry (but not too many – in case they were stopped, they were not to look like they were attempting to flee the country) and go to the U.S. embassy in Pakistan. When I called the embassy in Pakistan, I was told to instruct the family to come to the embassy with copies of their humanitarian parole documents and wait for word from the States. Seasoned immigration attorneys, better acquainted with the U.S. immigration system, told me to advise the family to keep the entirety of their humanitarian parole documents on their phones, to show that they were working with US citizens and were in the process of seeking relocation.
By spring of 2022, all humanitarian parole applications from Afghan families had been denied. None of the application funds were returned. The family, with whom I was now intimately familiar after making their case to any and every elected official I could get an audience with, returned to Afghanistan (although their eldest daughter was successfully relocated to Canada through a special program for girls participating in a robotics program). Separated by geographical distance, as asylum seekers they were caught in a space created through international bordering, citizenship, and asylum practices, both written and unwritten. Had they found a way to reach the US, the family would likely have been held in an immigration detention facility. Here, it is likely that the rest of the young children – all girls – would have been separated from their parents. In the space created through the U.S. border regime, these children would become extremely vulnerable to sexual violence - by other detainees, U.S. officials, and others with legalized citizenship, gender, and class privilege.
Suppose the family found a way to evade migration detention and enter the U.S. Without proper documentation, their options for finding adequate and stable housing would be limited. Despite being healthcare professionals in Afghanistan, the mother and father would likely be forced to accept low-paid, precarious, and dangerous work. They would be excluded from the very basic workplace protections afforded to U.S. citizens and, if they or their children became victims of violence or extortion, seeking help from the state would lead to eviction and deportation, not protection and redress.
Intimacies of law and property
What links the regulation of migrants with the regulation of property? Through legal inventions like the marital rape exemption for wives, rape exclusions in worker’s compensation laws, and the exclusion of sex workers from the protections of rape shield laws in criminal cases, status-differentiated groups are enclosed through a process of propertization that ensures the efficient accumulation of profit for an exploiter class. The laws that exclude specifically sexual and reproductive labour from the public sphere – including that which is taken by force – function as vindications of contract ideology. This ideology, in turn, depends upon the continued expropriation of labour from marginalised groups and the smooth operation of laws that turn this labour into property for others.
Law has steadily maintained the centrality of status property in determining the likelihood that you will be victimised sexually. It is the law that establishes and sustains a hierarchy of status property in identity categories and social positions – white, male, citizen, employer, father, state agent. It is true that the social position of “slave owner” no longer belongs among these categories, and law no longer explicitly incentivices rape of enslaved women as a means of reproducing one’s chattels. The abolition of antiquated laws like the doctrine of coverture – the legal regime that made wives unable to own property or constitute legal subjects – and the marital rape exemption have complicated the relationship between husbands and the legal entitlements to their wives’ sexual labour. Nevertheless, one’s vulnerability to sexual violence remains fixed through legal relations of status as property. Viewing sexual violence through the lens of legally structured social relations helps us to see how such acts of violence function, through law, to secure status - in maleness, or whiteness, for example. The laws structuring our social relations have evolved in one long counterrevolution to the emancipatory and redistributive demands made by feminist, civil rights, and welfare rights activists of the 1960s and 70s.
For example, UK and US courts have used race, gender, and marital status to distinguish between who should own property and who should not; whose consent mattered both in contract law and in the criminal law of rape and incest. Black people were enslaved as property and defined as non-citizens [1], while white married women were “covered” [2]by their husbands. Early American courts explicitly used race to define who could use property (again, whites) and who could not (Indigenous peoples) by defining possession and “beneficial use” - legal prerequisites for property ownership - as distinctly white and usually male activities. They also defined who could form contracts, and the effect of contract on the parties’ legal status and capacity. The marriage contract historically stripped women of legal subjecthood, rights over their own bodies, and the right to own property [3] While these facets of marriage have been chipped away over the years through, for example, the Married Women’s Property Act and the (almost) nationwide abolition of the marital rape exemption, the vestiges of the original terms of the marriage contract and the space of the marital household continue to be shaped by political economy and law in ways that render wives and children vulnerable to sexual violence and abuse. Legal contractual relations have always been fraught with racialised, classed, and gendered hierarchies, and these hierarchies continue to be reified within, not outside, the law. As Bernstein and Jakobsen (2022, 14) point out, “political economy is also sexual politics and vice versa.”
Against this backdrop, the legal and cultural obsession with affirmative consent evidenced in popular feminism, media, and mandatory university trainings cruelly reifies victims of sexual violence as abstract legal subjects, capable of protecting themselves through savvy risk assessment and contractual relations. Indeed, the privileging of consent as a marker of acceptable sexual relations has been thoroughly critiqued by feminist, queer, and liberal legal scholars. Because contracts are tools of property creation, there is no reason to expect that the imposition of the contract form onto sexual relations through the law of consent could break the hold of these hierarchies. Indeed, the intractability of sexual violence in the 21st century exposes the limits of contractualisation and criminalisation as frameworks for preventing and redressing sexual violence.
The focus on contracting by consent can be said to constitute part of a “neoliberal turn” in sexual violence law that produces sexual subjects as market actors, furthering the legal conversion of sex into property and sexual violence into a strategy of accumulation. By formally expanding the power of consent to more subjects, neoliberal sexual violence law acts affirmatively, and in collaboration with other institutions such as universities, private app developers, and nonprofit corporations, to engender sex as a contractual exchange. Spaces where sexual violence occurs most often – prisons, homes, workplaces, borders – have been shaped by imperatives of accumulation and profit-making since the 19th century. So, what is different about the construction of intimate spaces characteristic of neoliberalism? One key distinction is that, through legal and other institutions, neoliberal logic requires its subjects to become active participants in excusing institutional actors from risk and obfuscating social hierarchies by reducing social relations to consensual transactions.
Rape and social property relations
The fact that migrants like my friend’s Afghan cousins are the most excluded from the meagre regime of legal recognition of and compensation for sexual violence should draw the attention of anti-violence scholars and activists to international divisions of property and labor. While sexual harassment of affluent white women in Hollywood and the alleged mass rapes of women by men of color abroad still appear to control our attention, it is the legal, economic, political, and (increasingly) climate conditions that drive people from their homes, across borders, and into boats that deserve our focus. In our efforts to reduce sexual harms we have been looking in all the wrong places, to the point of weaponising sexual violence to justify imperialist expansion, war, and genocide. If “gender violence” in legal and popular discourse continues to refer only to harms against affluent and largely white women, or in the service of imperialist political ends, we will need new vocabularies for theorising – and tools for dismantling – the legal reproduction of social property relations that facilitate rape.
What is the level of sexual violence that we are willing to accept as a by-product of the laws of capitalist reproduction? I think we must insist that the answer is none. The occurrence of sexual violence has not been reduced by the proliferation of laws regulating sex and sexuality because this legal regime sanctions coercive social relations structured by market dependence and by rules of property and contract. When we concern ourselves with sentencing reforms, consent requirements, rape shield laws and other putative protections, we not only fail to engage with sexual violence as a problem of political economy but naturalise rape as an epistemic issue – one that is merely about “speaking out” – or a problem of contractual interpretation (“did she consent?”). As we produce more and more vulnerable bodies through imperialist military interventions - in Afghanistan and elsewhere - and by expanding the reach of capitalist law ever further, understanding the spatial ordering of social relations makes us better equipped to remake a world without sexual violence; that “open and insecure future which is yet to be written but which insists that the story of a world without rape is possible, desirable, and necessary” (Serisier, 2018, 215).
Footnotes
See Harris, C. (1993). Whiteness as property. Harvard Law Review vol. 106, No. 8 (Jun., 1993), pp. 1707-1791; Park, K-Sue, "The History Wars and Property Law: Conquest and Slavery as Foundational to the Field" (2022). Georgetown Law Faculty Publications and Other Works. 2361.
https://scholarship.law.georgetown.edu/facpub/2361Erickson, Amy. (2005). “Coverture and Capitalism.” History Workshop Journal. 59. 10.1093/hwj/dbi001
The civil contract of marriage, like most contracts, involves parties who are legally capable of consent, the exchange of consideration in the form of mutual promises, and the imposition of rights and obligations – such as tax breaks, support obligations, and rights to children born within the marriage. Unlike most contracts, however, a marriage cannot be modified or terminated without state intervention, Maynard v. Hill, 125 U.S. 190 (1888), and is valid if there is a state-issued license and a solemnization of the marriage (i.e., a ceremony).
References
Bernstein, Elizabeth, and Jakobsen, Janet R. 2022. “Introduction: Gender, justice, and the paradoxical persistence of neoliberal times.” In Paradoxes of Neoliberalism: Sex, Gender and the Possibilities for Justice, ed. Bernstein and Jakobsen, pp. 1-33. New York: Routledge.
Serisier, T. 2018. Speaking Out: Feminism, Rape, and Narrative Politics. London: Palgrave Macmillan.
Jenny is an attorney and holds a PhD in law from Birkbeck University of London. Her writing on fair housing, sexual violence, American legal history, and critical psychology have appeared in Feminist Legal Studies, Frontiers in Medical Sociology, Theory and Psychology, and the Journal of Housing and Community Development Law, among others. Jenny teaches law and legal theory at the Brooklyn Institute for Social Research and is currently working on a book about the political economy of sexual violence in the United States.