Lessons in Guilt from MacKinnon and Foucault
Content Warnings: Mentions of Sexual Assault.
Before I begin, I must confess to a handful of biases because to do otherwise would be irresponsible. I am a survivor of a sexual assault perpetrated by a young hockey-playing man from southwestern Ontario and am therefore anything but an unbiased spectator when it comes to the recent verdict in the Hockey Canada trial. Having read Justice Carroccia’s decision on the case, I can understand how she came to the not guilty verdict, but this does not mean that I feel justice has been attained.
In trying to understand this case, I found myself asking two difficult questions. Firstly, why does the testimony of the men in the room about the emotional state of “E.M,”the pseudonym commonly used in media reports to protect the victims’s identity, override E.M.’s testimony when deciding whether her consent was invalidated by fear? Secondly, what is the nature of guilt in a judicial context like this one? To explore these questions , please open your library catalogues to Catharine MacKinnon’s Towards a Feminist Theory of the State and Michel Foucault’s Discipline & Punish.
In Chapter 9 of Towards a Feminist Theory of the State, MacKinnon critiques the categorization of rape (and by extension, the reformist legal category of sexual assault) as violence and not sex, arguing that violence against women as a class of people is necessarily sexual. While I do not agree with all of her arguments, I do find her work to be a helpful starting point. Let’s begin.
In many jurisdictions, including Ontario, a guilty verdict for sexual assault requires not only proof of actus reus (the guilty act), but also mens rea (the guilty mind). To prove mens rea, the Crown must prove that the accused either knew they lacked consent, was willfully blind to the lack of consent, or was reckless about the absence of consent. MacKinnon points out that this means that the legal truth of sexual assault in a heterosexual context depends on men’s ability to recognize when a woman’s consent has been vitiated by fear—not on the woman’s own experience of violation.
Given the final verdict, it is striking that E.M.’s testimony regarding her emotions is overruled by the perspective of the accused despite only one of the two hockey players made to testify remembered that she had cried at least once—a fact supported by clues suggesting that she had cried in the first of the infamous consent videos. Even more striking is the fact that all three hockey players who testified remember certain phrases E.M. is alleged to have said down to the exact wording. Returning to our theory, MacKinnon pointedly asks: “When the reality is split, is the woman raped but not by a rapist?” Notwithstanding the existence of a group chat whose contents were largely left out of the verdict and the fact that only one of the accused was made to testify, it becomes clear that even in the courthouse, truth is little more than a discursive tool for the making of reality according to the disciplinary plan of institutions. What, then, can we make of this trial? MacKinnon’s argument is that the crime of sexual assault as far as “the State” is concerned, is the disruption of the State’s ability to say that a woman consented to domination by a man.
Moving beyond MacKinnon to a broader perspective, those familiar with the humanities and social sciences may recognize Foucault’s ideas about power, discipline, and institutions. Indeed, Foucault theorizes that through discourse, institutions create a subject. Subsequently, as that subject is further disciplined, and thereby known and predicted, it becomes alienated from its ability to create counter discourses that might threaten the discursive power of the State. A norm, then, is created and enforced by discipline. The more the subject is disciplined—where it ought to be in the way it ought to be— the more the subject becomes aligned with the discourse of truth, and thereby comes to understand itself in relation to that discourse, becoming less able to advance discourses that run counter to the institutional discourse. In simpler terms, the more a person fits the law’s definition of truth, the more they view themselves as not guilty and become a disciplined, useful citizen. Conversely, breaking from this assumed truth brands one with guilt and delinquency, defining criminality by opposition: those who are not delinquent are not guilty. If then, the accused in the case at hand are disciplined subjects— conformant to the normalizing force of carceral institutions such as the court —- they cannot be guilty because they do not perturb the norm the court’s role is to enforce. .Through the perspective of MacKinnon’s argument, if the law is designed to say that women can and do consent to domination by men, then trials like E.M.’s are in fact the State’s way of regulating the counter-discourse. If the law as an institution were to find that E.M. could not have consented and therefore did not consent to what happened in Room 209 of the Delta Armouries, it would strengthen a counter-discourse that challenges the assumption that consent to relations of domination, such as subject-institution, woman-man, worker-boss, is freely given. In effect, it strengthens the argument against the existence of a free will upon which much of the Western legal order relies.
What to do about this, then? Foucault and even MacKinnon leave us with a somewhat vague solution: to continue to advance the counter-discourse. MacKinnon is still alive but the book we’ve been working with is over 30 years old, and Foucault has long since passed, leaving others to interpret his work. Lots of people have since been hard at work refining these theories and attempting to find a more precise path to the liberation of all those made subjects by relations of domination. With only 1,000 words, I can’t offer a definitive answer—but I can begin a conversation. What other theorists can help us understand the problem? What can we do to end the violence? Email me your thoughts—I’m serious.