INSTITUTIONALIZING SEXUAL AGGRESSION IN THE MILITARY - Part 3

Consent and Intent, Sameness and Difference

Stan Goff

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.