Foucault, Feminism, and Sex Crimes

CHLOE

TAYLOR
In 1977 Michel Foucault contemplated the idea of punishing rape only as a crime of
violence, while in 1978 he argued that non-coercive sex between adults and minors
should be decriminalized entirely. Feminists have consistently criticized these
suggestions by Foucault. This paper argues that these feminist responses have failed
to sufciently understand the theoretical motivations behind Foucaults statements on
sex-crime legislation reform, and will offer a new feminist appraisal of Foucaults
suggestions.
In Discipline and Punish, Michel Foucault argues that imprisonment produces
delinquency or inculcates criminal identities in prisoners. This situation would
be exacerbated, for Foucault, in the case of sex offenders, given his argument
in The History of Sexuality that sexuality has been constructed as the key
to identity in the modern West. Convicted sex offenders will today be
constructed to re-offend twice over, once in virtue of the delinquency with
which they are inculcated in the prison system, and second in virtue of how
their sexual offense is taken up as identity through psychological discourses.
Foucault himself considers the sex criminal in several places: rst, in his
discussion of Charles Jouy in a lecture from 1975, collected in the volume
Abnormal; second, in his discussion of Jouys case included in The History of
Sexuality in 1976; third, in a round-table discussion in 1977, where he
contemplated the idea that rapists should be punished only for a crime of
violence, and not for a sex crime; and nally at a 1978 press conference where
he argued that non-coercive sex between adults and minors should be
decriminalized entirely. Beginning with Monique Plazas response in 1978,
feminists were quick to criticize Foucaults proposals regarding rape and sex
with minors, and have done so consistently in the decades that followed. Other
than this series of feminist responses rejecting Foucaults suggestions for
legislative reform, there has been little Foucauldian scholarship on the topic
of sex crimes.
1
This is surprising given that Discipline and Punish and the rst
volume of The History of Sexuality are arguably Foucaults two most inuential
works, and that the body of the sex offender is the site where these two studies
meet.
Hypatia vol. 24, no. 4 (Fall, 2009) rby Hypatia, Inc.
In the rst section of this paper, I discuss the feminist literature on rape as
well as the inadvertent impact of the feminist anti-rape movement on the
expansion of the carceral system. In the next section I consider the ways that
Discipline and Punish and The History of Sexuality may be read together to
contemplate the topic of the sex offender from a Foucauldian perspective. This
will help us to understand the motivations behind Foucaults proposals for
legislative reform and the need to think of alternatives to current methods of
treating sex offenders. I then provide an account of the culture of rape in the
Renaissance West in order to show the novelty and contingency of our current
view of sex crimes. This discussion functions as a fragment of a genealogy of
rape and is intended to challenge our intuitions about sex crime. I then turn to
a consideration of the feminist responses to Foucaults statements on rape and
sex with minors. Although in many ways these readings are an important
feminist corrective to Foucaults work, I suggest that they are awed because
they continue to reproduce current constructs of gender while neglecting to
theorize the social and embodied effects of the carceral system. Moreover, they
fail to take seriously Foucaults view that experience, including the experience
of sex crimes, is historically constituted, nor do they explore the implications
that this would have for thinking about strategies for change. I thus suggest that
a new feminist-Foucauldian approach to sex crimes is in order, and begin to
sketch what such an approach would entail.
FEMINISM, CRIME, AND PUNISHMENT
In her study of the politics of mass incarceration in the United States, Marie
Gottschalk argues that womens rights movements, including victims rights
movements that are represented predominantly by white, middle-class women,
have helped to facilitate the carceral state (Gottschalk 2006, 115). Although
American feminists initially took a more radical stance on rape and domestic
violence, arguing that violence against women was a fundamental component
of the social control of women, that the solutions to rape and domestic
violence rested on a complete overhaul of the relations between men and
women, and that reliance on the state for solutions risked co-optation, over
time these movements became champions of state intervention and their
goals became more modestproviding services for abused women in
professional therapeutic settings and ghting for tough legislation to make it
easier to convict and punish men accused of rape or domestic violence (122).
Sharon Marcus observes that feminist antirape literature, activism, and policy
development on rape in the United States during the last two decades have
increasingly concentrated on police procedures and legal denitions of rape
(Marcus 1992, 388). Maria Bevacqua makes a similar observation. She shows
that while radical feminists who took up the issue of rape in the 1960s
identied violence against women as linked to womens role in society, liberal
feminists who took up the issue only later tended to individualize the problem
2 Hypatia
as concerning particular victims in need of aid and particular offenders
deserving of punishment (Bevacqua 2000, 35). Liberal feminists strove for
serious treatment of the crime of rape and fewer abuses of its victims by law-
enforcement agents rather than challenging the social roles of men and women
more fundamentally.
According to Gottschalk, whereas womens movements in countries with
stronger welfare systems, such as Britain, were able to nd funding for their
activities elsewhere, in the United States feminist groups often needed to apply
for state funding and to become afliated with the police in order to fund
rape crisis centers and anti-rape programs. As a result, the development
of feminist activism against rape and domestic violence unfolded in a manner
that complemented state law enforcement and conservative interest groups,
favoring the liberal rather than the radical feminist stance on rape. For
instance, due to government funding, some rape crisis centers had to withhold
services from victims who refused to le reports with the police. When the
feminist staff of one such rape crisis center objected, they were replaced by
employees of the criminal justice system (Gottschalk 2006, 126). Government
funding also favored projects headed by professionals. Non-degreed feminists
were consequently squeezed out by experts who were not necessarily
feminists. As Bevacqua laments, rape crisis centersborn of feminist impulses
and an ideology that saw sexual assault as a symptom of male dominance and
not as a single problem in need of treatmentwere in danger of being co-opted
by service professionals who had joined the cause without ever subscribing to
its feminist ideology and politics (Bevacqua 2000, 82).
The intervention of professionals and experts again favored the treatment of
rape as an individual problem. Rather than understanding rape as a social
problem structurally related to current constructions of gender, it is seen as an
event that requires the medical and psychological treatment of individual
victims and the prosecution and treatment of individual offenders. Although
rape crisis centers originally theorized more radical strategies for combating
violence against women, over time they were obliged to embrace more of the
goals of state agencies, mental health, and law enforcement (Gottschalk 2006,
127). As Angela Davis has observed, such antirape strategies that depend
primarily on law-enforcement agencies will continue to alienate many women
of color since the police and law have targeted black men disproportionately
(Davis 1989, 48). Davis argues that the police exploit the anti-rape cause to get
more ofcers, helicopters, and tracking and police dogs in order to further
brutalize the black community.
Although feminists have remained conscious of the larger social concerns
that remain unaddressed by law-enforcement policies, Bevacqua argues that
this co-optation by state institutions is inevitable: to be able to secure
funding, attract volunteers, and enjoy a collegial relationship with law
enforcement and hospital personnelthat is, to be able to functionrape
crisis centers must collaborate with the very institutions they intend to
Chloe Taylor 3
transform (Bevacqua 2000, 74). Although such compromises may have been
pragmatic, the consequences have been considerable. According to
Gottschalk, The womens reform movements and waves of feminist agitation
that have appeared off and on since the nineteenth century in the United
States helped to construct institutions and identities and establish practices
that bolstered conservative tendencies in penal policy (Gottschalk 2006,
115). Indeed, the womens movement and the carceral state emerged
simultaneously in the 1970s, and Gottschalk argues that one of the reasons
that the womens movement was so successful in the United States is that it
was helping to further certain punitive and conservative political tendencies,
contributing to the pathologization of crime and the dehumanization of
criminals. The anti-rape, anti-domestic violence, and victims rights move-
ments in the United States all functioned conservatively to ratchet up
punishments for non-white men and were heavily supported by the Reagan
administration.
While several feminist theorists have noted this pathologizing and
institutionalizing tendency, it is important to note that feminists have also
consistently problematized the move toward law-and-order solutions and have
proposed social transformations as better tactics for combating male violence.
Davis, for instance, writes:
If we do not comprehend the nature of sexual violence as it
is mediated by racial, class, and governmental violence and
power, we cannot hope to develop strategies that will allow
us eventually to purge our society of oppressive misogynist
violence. In our attempt to understand the structure of rape, it
would be a grievous mistake to limit our analysis to individual
cases or even to conduct our analysis in terms of male
psychology. The only logical strategies for the elimination of
rape that would follow from this type of analysis would be a
reliance on repression to punish and deter rapists. But as the use of
the repressive paraphernalia of the state has generally demon-
strated, further crimes are seldom deterred by punishment meted
out to those who have been caught committing them. (Davis
1989, 4748)
Similarly, in their preface to Transforming a Rape Culture, Emilie Buchwald,
Pamela Fletcher, and Martha Roth argue that we need to change values,
education, media images, and mentalities about gender rather than simply
calling for more severe punishments for rapists, for longer prison sentences,
even for the death penalty, as if escalation of punishment could in and of itself
lead to signicant change (Buchwald et al. 1993, 1). Many of the essays in this
book argue for solutions such as the abolition of fraternities; censorship of
pornography; changes in the vocabulary used by journalists to describe rape
cases; transformations of the cultural meanings of masculinity; anti-rape
4 Hypatia
education for male students; assertiveness training for girls and women; and the
creation of new images in games, video games, television, and movies. Several
articles in this collection argue that male children need to be raised differently
and that fathers need to be taught new parenting skills. Peggy Miller and Nancy
Bieles contribution problematizes the manner in which a whole industry,
comprising diagnosis, therapy, medications, books, lms and tapes . . .move the
reality of rape from its social context to an individual problem (Miller and
Biele 1993, 52). These are useful readings in that they theorize tactics for
transforming gender roles in society, and yet none of the chapters addresses the
question of what to do with men who have already offended,
with the exception of the chapter by D. A. Clarke, which argues for life
imprisonment or execution for rapists, to be carried out by feminist vigilantes
if the state is unwilling (Clarke 1993). Similarly, shortly after having argued
that law-and-order strategies are not the solution to sex crimes, the editors of
the volume object to the light penalties received by rapists in the United
States.
While it is thus not uncommon for feminists to observe that law
enforcement is not the ultimate solution to sex crimes, and to focus on social
re-education and prevention instead, it is uncommon for feminists to say
anything about what should happen to sex offenders other than to call for
stiffer penalties or object to light ones. Even Davis is ambivalent on this issue,
writing vaguely that This is not to argue that men who commit rape should go
unpunished, but rather that punishment alone will not stem the rising tide of
sexual violence in our country (Davis 1989, 48). For the most part, feminist
theorists and activists either call for more severe punishments for sex offenders,
or they do not focus on the offender at all, concentrating on victims and
potential offenders instead. Although feminist theorists and activists propose
useful social diagnoses and solutions, feminism continues to neglect the
situation of the growing number of sex criminals incarcerated by the judicial
system, although, as Gottschalk has argued, feminists are partially responsible
for this expansion of the prison complex and thus have a responsibility to think
seriously about its consequences.
PRODUCING RECIDIVISM
In Discipline and Punish, Foucault does not so much argue that incarceration
produces recidivism as point out that this fact has been known since the birth
of the prison (Foucault 1975/1977, 25253, 265, 27072, 27684). One
familiar argument is that incarceration leads to a feeling of isolation from and
anger against society in those incarcerated, along with a sense of solidarity with
other criminals with whom the incarcerated cohabit and can plan future
crimes. Foucault juxtaposes texts from the nineteenth and twentieth centuries
that almost word for word raise critiques of the prison such as thesenamely,
that the prison is an environment that breeds rather than extinguishes
Chloe Taylor 5
delinquency. Foucault offers variations on these critiques of the prison.
According to him, the introduction of the discourses and activities of the
human sciences into the criminal trial and the prison provides an opportunity
not simply to punish a prisoners body, but to categorize, observe, and refashion
his soul. The prisoner is constructed as an object of knowledge for the human
sciences of criminology and psychiatry, which predict his likelihood to
recidivate and suggest further disciplinary measures based on this prediction,
such as extended or reduced periods of incarceration and various forms of
probation and post-incarceration surveillance. This appropriation of the power
to judge and to advise on punishment on the part of human scientists, and the
integration of such scientic discourses into the activities of judges, are some of
the topics that Foucault is most concerned to explore in Discipline and Punish.
Since Foucault wrote Discipline and Punish, these disciplinary practices of the
penal system, extended and informed by the scientic ndings of criminol-
ogists and psychiatrists, have only been intensied, most obviously through the
strategies of community notication, police registration, and periods of
probation and parole involving scheduled and unscheduled visits from
surveillance ofcers and parole ofcers as well as mandated therapeutic
treatments. These tactics are particularly intense in the cases of sex offenders,
such that today a sex criminal released from prison in the United States may
have his picture, address, and name posted on an internet site, sent to his
neighbors, and even posted on billboard signs. In some states, individuals have
a symbol added to their drivers licenses designating that they are sex offenders.
The irony for Foucault is that these disciplinary measures do not so much
fashion the subject away from his crime as constitute him in terms of it,
producing a subject bound to re-offend as an expression of his very being, thus
leading directly to recidivism.
While critiques of the prison have long argued that it will produce
delinquency in convicts, or that released prisoners will be more likely than
ever to engage in criminal activities of some sort, Foucaults study implies that
prisoners will in fact be most likely to recidivate with respect to the same
category of crime for which they were previously incarcerated, because
this category of crime will have been forged as intrinsic to their identities.
This would be particularly likely with respect to sex offenders, since they are
the most highly stigmatized and intensely monitored category of criminal, and
due to the identication of sex with identity in the modern West. Indeed,
while statistics indicate that sex offenders have a lower likelihood of being re-
arrested for any offense than non-sex offenders, they are four times more likely
to be arrested for another sex crime than other released offenders.
2
It is remarkable to Foucault that having long since become aware that the
prison produces recidivism, or that it fails in its proclaimed goal of rehabilitat-
ing criminals, we have never seriously considered abolishing the prison.
Rather, critiques of the prison lead only to prison reform and to an expansion
of the logic of the prison itself. The proposed antidote to the prison has always
6 Hypatia
been more prison: critiques of the prison conclude that we should develop new
programs of rehabilitation within the prison; that prison workers must acquire
greater knowledge of the criminal mind and of each individual offender; that
we need more psychiatrists, social workers, and criminologists in the prisons;
that the prison must adjust sentences according to the prisoners progress or
failure to reform; and that the criminal must be more strictly monitored even
after he leaves the prison. According to Foucault, all of these reforms simply
intensify the prison, and thus exacerbate the problem, if indeed the production
of delinquency is a problem.
But perhaps delinquency isnt the problem that the prison aims to address. If
the fact that prisons produce rather than rehabilitate delinquents has been
known all along, and nothing has been done about it, Foucault thinks that we
must pose different questions. For instance: why have we continued to use the
prison system given its apparent failure? Why is no alternative form of
punishment even conceivable today? What are the true functions of the prison
such that it is in fact not a failure but a success? What is really at stake in
the prison such that, despite its well-known recidivist-producing effect, it
maintains its apparently unquestionable appeal?
For Foucault, the real function of the prison is in fact to produce delinquents
as objects of knowledge, and this began to occur at a time when once-mundane
crimes committed predominantly by the working classes, such as looting and
vandalism, were taking on ever more threatening implications for the upper
classes, as during the French Revolution and factory strikes. In this context,
and with these political stakes, transforming unpredictable offenders into
predictable delinquents, turning political dissidents into psychiatric cases, is
exactly what the prison does well, and why it is a success that we do not dream
of doing without. Recidivists are objects of medical and criminological
knowledge. Of course, getting to know this object of knowledge has produced
this very object, and yet at least we now have an object that we can know.
Rather than simply punishing unruly offenders whose next actions we can only
await in trepidation, we now consolidate lawbreakers into new categories of
criminals and into a subculture, delinquents whom we know will re-offend, but
who will at least do so in ways that we can anticipate, contain, and even
utilize,
3
and whose impact can be medicalized, individualized, de-politicized,
and diffused. In fact, for Foucault, the purpose and function of the prison is not
to rehabilitate offenders, despite our continual rhetoric to this effect, but to
discipline offenders into delinquents, manageable objects of knowledge cut off
from the rest of the population, psychiatric cases rather than political threats.
In The History of Sexuality, Foucault argues that just as criminology has
constituted rather than discovered its object of knowledge, so the sexual
sciences have created rather than informed themselves about what we now call
sexualities. In the same years that the prison was born, so were the sciences of
sex. A similar process occurred in the clinic and in the bedroom as in the
prison: there was a move from being concerned with actions, whether criminal
Chloe Taylor 7
or sexual, to being concerned with actors. In earlier eras, when a crime
occurred, the law had to discover what had happened and then punish
accordingly. In contrast, today the law needs to discover and treat the criminal
himself. It is not enough to know what crime happened; we must know why.
With what intentions and motivations? Given what psycho-biographical
determinations? The punishment must take these questions into account, or
must know the criminal and not just his crime. Likewise in the realm of
sexuality, while many sexual acts were always forbidden, they were not seen as
ways of being. In the nineteenth century, however, certain sexual acts became
characterized as perversions, and perversions required perverts, thus bringing
up the question of identity. Once more, experts had to understand not just
what act had been performed, but the type of person who would perform it. In
this way, just as the offender became a delinquent, so the sexual agent became a
pervert, an individual with a determining sexuality, a being whose very
existence was dened by the sexual acts that he desired or performed, and
whose existence, like that of the delinquent, was constituted as an object of
scientic knowledge. In this way, the modern West produces sexual as well as
criminal recidivism.
SEX OFFENDERS
If Discipline and Punish shows that the prison and its criminological discourses
produce delinquency, and The History of Sexuality demonstrates that the
discourses of the sexual sciences trap the modern subject into sexual identities,
what can be said of the sex criminal, the gure situated at the intersection of
these criminological and sexual discourses? For Foucault, the sex criminal
is now constructed to re-offend twice over, both as a consequence of his
delinquency and of his sexual truth. In The History of Sexuality and in a lecture
given at the Colle`ge de France, Foucault describes a case situated at this
discursive and institutional intersection: that of Charles Jouy.
According to The History of Sexuality, Jouy was poor and a bit simple-
minded, and paid a young girl for caresses because older women would not
accommodate him (Foucault 1976/1978, 31). Although, as Foucault empha-
sizes, it was his circumstances that made this peasant have sex with a young girl
rather than with women his own age, Jouy had the misfortune to live in an age
in which sexual perversions were being categorized for the rst time and with
great zeal, and so what were, for Foucault, harmless activities on Jouys part
became of interest, and he was arrested and placed in the custody, not of the
law, but of doctors. These doctors made Jouy speak and made his confessions an
object of science. Because sexuality in the modern period had come to be seen
as the key to a subjects identity, the acts that Jouy had engaged in did
not appear to the scientists who investigated his case to be the result of
his circumstances, but as an inevitable consequence of his body and self.
8 Hypatia
Investigating Jouys case was an opportunity to understand the nature of
pedophiles in general.
In Foucaults terms, Jouy was individualized by power in the process of his
interrogations. He was not a pedophile before he began confessing, but he took
on the identity of pedophile because scientists viewed him as such and made
him speak in these terms. As pedophile, Jouy was attributed with a set of
characteristics that would apply to all aspects of his being and not merely to his
sex life. In Foucaults words, an everyday occurrence in the life of village
sexuality was treated as and thus incorporated by the subject as a singular
nature (Foucault 1976/1978, 31). This nature was assumed to be written
immodestly on his face and body such that the doctors would go so far as
to measure Jouys brain size, study his facial bone structure, and examine
his anatomy for the source of his degeneration and perversion. Jouy was dis-
cursively constructed into a pervert through disciplinary discourses, and,
consequently, because he was bound to re-offend, he was interned in a hospital
for the rest of his days.
In an effect of the sexual sciences that is remarkable today, we see that as sex
became essential to identity, law came to think of interfering with the very
body of the criminalthrough chemical castration therapy, for instance, or, as
in the case of Jouy, lifelong detention and surveillance. An individuals sexual
practices have ceased to be something that could change with circumstances,
and perversions are now seen as (and are thus constructed to be) permanent.
The therapeutic treatments to which sex offenders are submitted have
increasingly viewed perversions as essential to the identities of the subjects
in question: while in the past therapists working with sex offenders attempted
to cure sick individuals, today they rely on cognitive behavioral modication
techniques in order to teach patients to manage their incurable impulses
(Meloy 2006, 2628). The use of the phrase sexual predator has become
increasingly frequent, suggesting that the sex offender is a monster or non-
human animal rather than a sick person. According to Meloy, this view of
offenders as predators has enabled states to become increasingly punitive, and
to detain a sex offender indenitely under the pretense of preventive
detention (48).
Foucaults argument that such intensications of punitive disciplinary
tactics and expansions of the prison in fact create rather than rehabilitate
delinquents is conrmed by studies of recidivism among sex offenders. Sex
offenders who serve prison terms are more likely to re-offend than are those
who do not serve prison terms, and the more intense the conditions of parole
and probation (community notication, police registration, probation appoint-
ments, obligatory therapeutic treatments, visits from surveillance ofcers,
DNA/STD/HIV testing), the higher the probability of recidivism. According
to Meloys study, jail time is predictive of recidivism among sex offenders, while
the number of treatment conditions imposed as a condition of probation is
also positively related to sexual recidivism (Meloy 2006, 55, 6768). Langan,
Chloe Taylor 9
Schmitt, and Duroses study also shows that sex offenders recidivate less often if
not incarcerated (Langan et al. 2003). The positive relationship between
surveillance and recidivism may be partially explained by the fact that the most
intense surveillance is inicted upon the most serious offenders; however, it is
also clear that practices such as incarceration, community notication, and
police registration lead to the isolation of released offenders, an inability to
nd stable housing and employment, a failure to reintegrate into society,
and feelings of persecution and injustice, as well as a sense of futility since such
individuals are stigmatized anyway, no matter what they do. Not surprisingly,
all of these factors contribute to recidivism. Meloy explains the fact that
the likelihood of recidivism actually increased (not decreased) along with
additional units in treatment by suggesting that offenders felt overwhelmed
by the additional treatment conditions and gave up on the possibility of being
successful on probation (Meloy 2006, 68).
What may surprise most readers is that sex offenders as a category are among
the least likely criminals to re-offend (Meloy 2006, 11). Sex offenders are less
likely than non-sex offenders to commit a new crime of any sort, and the
likelihood of sexually re-offending is far lower than the recidivism rate of
burglars and thieves.
4
The idea of the sex offender as a predator lurking in alleys
who is compelled to act due to impulses beyond his control is nonetheless
prevalent, has captured the contemporary imagination, is perpetuated by the
media, and results in public policies that lead to an ever-increasing surveillance
of sex offenders and thus an ever-greater production of recidivist sex offenders.
5
What I hope to show in the next section is the contingency of this image of the
sexual predator and of the type of criminal who is likely to recidivate.
A FRAGMENT OF A GENEALOGY OF RAPE
Historical studies indicate that, in the Renaissance, sex crimes were considered
a consequence of passion and circumstance and were treated cavalierly
(Ruggiero 1980, 1995; Vigarello 1998/2001). Rape was rarely prosecuted: there
were, for instance, fewer than three rape trials every ten years in Paris during
the Renaissance, and only eighteen rape trials during the entire eighteenth
century in Flanders. Moreover, almost all of these trials involved rapes of very
young children. Rape trials involving older girls and adult women were almost
nonexistent and seldom led to conviction, so trivial was the crime seen to be
(Vigarello 1998/2001, 2728). Rape was presented as an inevitable and more
or less acceptable activity of bachelors, while the wedding night of every man
was imagined as a rape, for which reason depictions of mythological rapes
were frequently commissioned to decorate nuptial chambers and trousseau
chests, and references to the rapes of the Amazon and Sabine women were
incorporated into marriage ceremonies and might even be dramatically
performed at the more elaborate of such events (Zirpolo 1992; Baskins 1998;
Musacchio 1998; Matthes 2000).
10 Hypatia
The myth-based marriage-rape identication is important because it made
rape a likely and socially valorized activity of every man, an iteration of glorious
deeds. Rape was common,
6
permissible, and even socially useful so long as the
woman raped was either the mans future or present bride or poor, and so long
as no transgression of blood (incest; rape up the social scale) or excessive
bloodshed was involved.
7
A poor woman who was raped without a great deal of
bloodshed would have no chance of having her case heard by the law,
particularly if she was not a virgin.
8
If the woman was a virgin, the man who
raped her might be encouraged to marry her if he was of her own social class, or
if he was not of her social class he could be asked to provide her with a dowry.
Part of the social utility of permitting poor women to be raped by men of all
classes was that it could lead to marriage, with the rapist either marrying or
dowering his victim. If it did not lead to marriage, it contributed to the creation
of a pool of women who were then forced into prostitution (Roussiaud 1988),
which served as an acceptable outlet for male desire (Trexler 1994), reducing
the number of less acceptable sex acts such as sodomy,
9
incest, sex with Jews,
and adultery against Christ (sex with nuns) (Ruggiero 1980, 169).
The practice of marrying women to the men who raped them implies for
Ruggiero that there was no Renaissance notion that women were traumatized
by rape (Ruggiero 1995, 102). If the wedding night was a performative rape,
every wife was seen as living with her one-time rapist, rendering rape normal
rather than traumatic in the early modern imaginary. Frequent references to
the rape of the Sabine women within discourses on marriage reafrmed this
trauma-less conception of rape: the Sabine women were abducted and raped at
swordpoint by the Romans, but they came to love their rapists, bore their
children and kept their houses, remaining voluntarily when given the chance
to escape, which was crucial to the foundation and population of Rome. Rape
was thus conceived as an activity that could forge rather than destroy family
ties. Indeed, it was frequently women and girls who petitioned Renaissance
courts to marry them to their rapists. What was at stake was a womans honor,
which was negligible if she was poor. Rapes were barely described in court
records unless they involved extreme bloodshed or sex between persons whose
blood was too proximate (incest) or too distant (rape up the social scale),
which illustrates Foucaults argument that identity, and thus legal interest, lay
in blood rather than sex in the early modern age.
10
The case of the Marquis de Sade suggests that Foucaults thesis holds true as
late as the eighteenth century: in the scandal for which Sade became infamous,
the marquis hired a beggar woman, Rose Keller, to be his servant, and within
hours had taken her to his country home where he abused her until she ed the
house naked and streaming with blood. While the story of Sades attack on
Keller was exhaustively reported in the press and circulated in rumors for years
to come, the sexual nature of the attack was never made clear. Did Sade rape
Rose Keller? This question does not seem to have been posed, while details
about the specic nature of the bloodshedthe use of knives and scrapers
Chloe Taylor 11
spread and were continually embellished (it was claimed that he dissected her
viscera). As Vigarello writes, the reports:
emphasize the role of cutting instruments but ignore their
possible sexual purpose, presenting a vivid image of the master
trampling the servant rather than the disturbing image of the
rapist abusing his victim. The greater concern regarding
violence did not yet make it possible to specify any direct sexual
component. (Vigarello 1998/2001, 72)
In the years leading up to the French Revolution, violence down the
social scale had nally come to be a scandal, but no one was interested in the
question of sexual violence. In contrast, it is the sexual nature of Sades
violence that interested nineteenth-century scientists such as Krafft-Ebbing,
and that interests readers of Sade today. To illustrate the shift that has occurred
between Sades day and our own, we might contrast the response to Sades
violent attack on Rose Keller to the response to the similarly violent sexual
assault on Susan Brison in 1990, which Brison describes in Aftermath (2002).
Brisons assailant orally raped and nearly killed her, beating her with a rock on
the head and strangling her until she was unconscious before leaving her for
dead, face-down in a riverbank. Although it is the striking of the head with a
rock and the strangulation that might seem to involve the most horric
violence in this particular case, Brison is primarily considered (and considers
herself) as a victim of sexual violence, a rape survivor. The sexual aspect of the
crime is seen as key to the entire assault. The strangulation and the blows to the
head from a stone are themselves considered as acts of sexual violence, as
Brison presumably would not have been attacked while walking on the country
road if she had not been sexed femalethe sex of the victim and of the
assailant are crucial to understanding this case, in other words. The contrast I
want to highlight with respect to the Sade case is that in the assault on Brison,
it is the sexual aspect of the crime that shapes our interpretation of the entire
assault, whereas in the eighteenth century the sexual aspect of a similarly
violent attack by a man against a woman was entirely overlooked.
At the same time, contrary to modern intuitions, to the Renaissance mind it
was crimes such as theft that showed an intrinsically degenerate character, a
permanent threat to the community, and that could lead to exile, the removal
of the thiefs hands, or other permanent impediments to repetitions of the
crime.
11
A clear sign that thievery was taken more seriously than rape is that
theft itself would be under punished if it occurred in the context of a rape. If a
thief stole from a woman, he could lose his hands. If, on the other hand, he
raped that woman and then stole from her, he might merely receive a ne for
the combined crime (Ruggiero 1980, 164). The theft itself was trivialized if it
occurred in the context of the socially condoned crime of rape. Rape, unlike
theft, was an act of passion arising from a particular context rather than from a
type of individual. It was thus not prone to recidivism, and so if a man stole
12 Hypatia
while raping a woman it was thought that he had simply been carried away by
the forgivable passions of the rape, and was not likely to steal again. Good
advice to Renaissance thieves would thus have been to rape a woman in every
household they stole from. Signicantly, this shows that what an epoch
considers intrinsic to a persons character changes, and that it is a peculiarity
of our own age that sex offenders are imagined as prone to recidivism.
In the Renaissance, when sex acts were not deemed bound to a subjects
being and thus to repetition, particular sex acts such as homosexuality and
rape do indeed seem to have been related to time of lifebachelorhood, in
particularand not to identity. In Geneva between 1650 and 1815, bachelors
committed nine out of ten rapes, whereas in the nineteenth century two out of
three rapists were bachelors, compared to fewer than half after 1920 (Vigarello
1998/2001, 26, 156). It was also common for young men in Renaissance Italy
to have homosexual relations and to engage in gang rapes of lower-class
women, but also to set these behaviors aside when they married (Ruggiero
1995, 98). Today, if a young man commits rape or has homosexual relations,
he will be seen and will likely see himself as a rapist or homosexual, and
consequently he may be more likely to continue these behaviors throughout
his life. In Foucaults words, the West has not been capable of inventing any
new pleasures, and it has doubtless not discovered any new vices. But it
has dened new rules for the game of powers and pleasures. The frozen
countenance of the perversions is a xture of this game (Foucault 1976/1978,
48). The modern West has not invented sadism or sex with children, but we
have constituted these acts as identities. We have invented pedophiles, rapists,
and other sexual identities, including heterosexuality, to which we cling as to
who we are.
For Foucault, sex between minors and adults is signicant today because of
the disciplinary discourses that construct it as such, while even violent and
non-consensual sex will be less likely to be repeated by the offender, and less
permanently traumatic to the victim, if the event did not become caught up in
the identities of both, constructing one person as a rapist, bound to re-offend,
and the other as a rape victim, bound to be scarred sexually and thus, in our age
of sex as identity, to the core of her very being. Although Foucault is concerned
with so-called perverts, including the agents in sex crimes, the discursive
constitution of sexualities also applies to the passive victims of such agents.
When women are raped in the modern West, in which sexual experience is
caught up with identity, one reason that rape is so terribly traumatic is that it
undermines and determines their very sense of who they are. A woman who is
raped is henceforth a rape victim, with all the symptoms that this entails, and if
she is lucky, a survivor. She will be constituted as such through medical
discourses as well as by her own modern and Western understanding of events.
The experience of having been raped, or of having had sex with an adult when
she was a child, will henceforth be a determining factor in her sexuality, and in
turn her sexuality will be central to her sense of being. As a result of supposedly
Chloe Taylor 13
therapeutic discourses, rape and childadult sex have a different and arguably
more monumental impact today than in earlier times.
Considered in the context of Discipline and Punish and The History of
Sexuality, it is unsurprising that in approaching sex-crime legislation reform,
Foucault proposed that we cease to submit sexual offenders to the disciplinary
practices of the prison and its experts. Feminists are correct that Foucaults
concern was rst and foremost with the offenders and with how they suffer as a
result of our current treatment of sex crimes. Foucaults neglect of the victims is
problematic; nevertheless, if only for the sake of the women and children who
are the primary victims of sex crimes, the construction of recidivist rapists and
pedophiles, as well as sexual victims, cannot be a feminist goal.
FEMINIST CRITIQUES OF FOUCAULTS PROPOSALS FOR LEGISLATIVE REFORM
Several of Foucaults critics present him as concerned with how punishment
negatively represses a rapists or pedophiles sexuality, as well as how the
discourses on pedophilia repress child sexuality. Linda Alcoff, for instance,
argues against a Foucault whom she presents as would-be liberator of repressed
childhood and pedophile sexualities (Alcoff 1996, 103, 111, 120), while Ann
Cahill believes that Foucault wishes to liberate male sexuality (Cahill
2000). Cahills argument against Foucault is that such liberation of male
sexuality would simultaneously silence the sexual experiences of women and
their experiences of rape in particular. In fact, however, Foucault persuasively
casts the hypothesis of repression and sexual silencing into doubt in The
History of Sexuality, and was concerned instead with how sexuality is being
positively produced and made to speak itself into being through disciplinary
discursive practices. Foucaults critics thus fail to recognize his central concern
with how the current penal system constructs (rather than represses) sex
criminals, inculcating recidivism, and, we might add, with how it also
constructs sexual victims. This is not to say that the victimization involved
in sex crimes is not real, but only that how it is experienced and solidied into
the identities of those involved are particular to our context and disciplinary
practices.
Critics of Foucaults proposals have also problematized his focus on the
offender rather than the victim. Monique Plazas essay, Our Damages and
Their Compensation (Plaza 1978/1981), creates two groupsus and
them; Foucault, being male, is situated in the they camp, and is
consequently seen to be expressing allegiance with the mostly male sexual
offenders rather than with their mostly female victims. Laura Hengehold argues
that Foucault grossly underestimates the psychological and physical trauma
(Hengehold 1994, 94) of these victims, for whom, in Cahills words, rape is
the ultimate violation and a fate worse than death (Cahill 2000, 61). In an
attempt to emend Foucaults masculine bias, these authors describe the horrors
of rape and child molestation from the perspective of the victims (Woodhull
14 Hypatia
1988, 171; Alcoff 1996, 12729). Alcoff cites testimonials of child-abuse
victims, despite the fact that Foucault is clear that he is concerned only with
decriminalizing non-coercive sex between adults and minors. In an autobio-
graphical passage that calls to mind Foucaults problematization of sexual
confessions in The History of Sexuality, Alcoff also describes her own experience
of being sexually assaulted as a child, although, once again, such instances of
sex between adults and minors were not the sort that Foucault wished to
decriminalize. Based on the emotional impact of such testimonials, Alcoff
argues that Sexual practices are self-constituting and that the harm of adult
child sex is pre-discursive, or is due to the phenomenology of sex itself, which
involves uniquely sensitive, vulnerable, and psychically important areas of the
body, a fact that persists across cultural differences (Alcoff 1996, 12728).
Of course, Foucault himself argues that sexual practices are self-constituting,
but he thinks that this is so only in the modern West, and that other societies
ground identity otherwise: in the medieval and early modern West, Foucault
claims that identity was grounded in blood and alliance rather than sexuality
(Foucault 1976/1978), while Christine Helliwell shows that in Indonesian
Borneo, identity is also not grounded sexually, but rather in ones role in rice
production (Helliwell 2000). Individuals in Renaissance Europe were identi-
ed as being bastard or legitimate, upper- or lower-class, of this or that family,
from this or that village. Individuals in Indonesian Borneo either have the
identity of a person who clears and plants rice elds or of a person who sorts and
stores rice seed. Identity in these Western and non-Western cultures is not
related to the kinds of sexual desires one has or has been submitted to, as is the
case in the modern West. Alcoff, however, is arguing that sexual experiences
are caught up with identity in all cultures, due to the pre-discursive signicance
of the sexual parts of the body.
As with the essays by Hengehold and Cahill, Alcoff provides no evidence
for her claim that rape and childadult sex are experienced in the same way
across cultures, or even that these notions exist universally. To problematize
her claim, however, we may consult Helliwells article, Its Only a Penis:
Rape, Feminism, and Difference, in further detail. In this essay Helliwell
describes her anthropological eldwork in the Dayak community of Gerai. In
this community, Helliwell tells us, neither men nor women can quite grasp the
idea of how rape would even be possible when Helliwell attempts to discuss it
with them, and no such crime exists in their law codes. Far from women living
in perpetual fear of rape, neither men nor women in Gerai have given a
thought to this experience. One womans response, Its only a penis. How
could it hurt anyone?, inspires the title of Helliwells article.
12
While
Foucaults feminist critics argue that rape is sexual (and must be punished as
such) because being able to rape versus being vulnerable to rape shapes sexual
identities, Helliwell shows that in Gerai the genitals do not have this
signicance nor centrality to ones sense of personal identity. Indeed, the male
and female genitals are understood in Gerai as the same, simply situated safely
Chloe Taylor 15
inside the body in the case of women, whereas men have their genitals more
vulnerably situated outside their bodies. It is men rather than women who
are sexually vulnerable in this community, due to the location of otherwise
isomorphic organs, and yet even this vulnerability is not signicant.
13
Penises
might get hurt in Gerai, but it is not clear how they could hurt others. Men are
not conceived of as sexually aggressive in Gerai, nor women as sexually
vulnerable, whereas the internalization of these notions is central to Western
practices of gendering. Sex is believed in Gerai to be necessarily a response to a
reciprocal need. Rape is simply unthinkable. Absent any discourses on rape,
legal or otherwise, Helliwell observes that rape also does not seem to exist in
this society, and this possibility is substantiated by work by other anthropolo-
gists describing similarly rape-free societies (Sanday 1981). What this shows is
that in some societies, identity could not possibly be formed in terms of being-
able-to-rape in the case of males, and being-vulnerable-to-rape in the case of
females. This problematizes the arguments of Foucaults critics, who claim that
rape must be punished as sexual because it necessarily informs what it means to
be sexed female, which is in turn central to female identity.
Despite lip-service to the ways in which bodies are culturally produced at
every level and the gendered subject and her relation to the body are
historically produced (Woodhull 1988, 174), Foucaults critics never sub-
stantiate these claims by going beyond evidence drawn from their own culture
and time. In several cases the implication seems to be that rape and childadult
sex are to be understood as constitutive of the self, and, most importantly, should
therefore be punished as such. While in general Foucaults critics do not explicitly
advocate harsher penalties for victims of sex crime, they unanimously object to
the possibility that Foucault might have advocated the decriminalization of
sexual offenses. Whether the legal and penal sanctions that these authors wish
to maintain prevent rape and child abuse goes unmentioned.
The problems with this testimonial and victim-based approach, contra that
of Foucault, are that it fails to address the problem, which is the offender and
not the victim, and that experience is taken as an authentic and trans-
historical category. In most of these cases, the critics of Foucault reject his
ideas for legislative reform on the grounds of the testimonials they cite,
explicitly
14
or implicitly implying that we need to continue to use the current
penal system because the punishment matches the crime. None of these critics
makes reference to Discipline and Punish in order to grasp the effects that
Foucault saw this penal system as having.
15
In the few cases where Foucaults
critics explore strategies for eliminating the sexual victimization of women and
children, these are offered as additions to the current methods of disciplining
sex offenders, not as alternatives, and involve changing the behavior of women
rather than men.
Cahill, for instance, suggests that women train in self-defense (Cahill 2001,
198207), arguing that self-defense classes lead to a recodication of the
female body such that it no longer signies as passive and sexually vulnerable.
16 Hypatia
Unfortunately she does not explore the even more urgent need to recodify
mens bodies such that they no longer signify as (and are thus no longer
performed as) sexually aggressive, dangerous, and predatory. In fact, the very
engagement of women in self-defense classes undertaken with the aim of
protecting themselves from men seems to re-inscribe the gendered construc-
tions of male sexuality as dangerous and of womens bodies as sexually
vulnerable, even if the attempt is to make the latter less vulnerable. Similarly,
Woodhull suggests solutions such as women-run ride services and rape crisis
centers (Woodhull 1988, 176). These suggestions, like Cahills, aim to
empower women but in fact reinscribe the gendered construct of women as
vulnerable and in need of protection (by other women) from predatory men.
While Woodhull recognizes that increased law and order is not the ultimate
solution to rape, she nevertheless argues that it is necessary. Moreover, the
problems she identies with policing and law and order focus on the claim that
law enforcement entails men protecting women from other men, as if all police
ofcers, lawyers, judges, and prison workers are male. While it is true that there
has been and is a masculine bias among police ofcers, lawyers, juries, and
judges that has led to harrowing police and trial experiences for many victims
of sex crimes, which feminists have rightly addressed, there are other problems
with policing, judging, and the penal system that are independent of the sex
organs of those who fulll these functions. These fundamental problems with
the disciplinary institutions and practices in question, as identied by Foucault,
go unaddressed by Woodhull. Although she intends womens protection of one
another to be a practice of empowerment, according to which women no
longer rely on men to be safe, such a strategy suggests that women need to
depend on each other because men will inevitably harm them. Although
Woodhull presents her strategies as working with a view toward eliminating
the subjection of women and, with it, the crime of rape, these solutions may
even contribute to the construction of men as aggressive and women as
vulnerable. In approving of rape crisis centers and ride services because they
are run exclusively by women (Woodhull 1988, 175), Woodhull reinscribes
the construction of an adversarial and biologically grounded male/female
dichotomy rather than challenging it. It is these constructions, I suggest, that
are the cause of rape, and tactics such as Woodhulls may only perpetuate the
problem they seek to solve.
In her study of anti-rape education, Moira Carmody shows that many
programs today aim to change female behavior, although it is surely male
behavior that is the problem (Carmody 2005). It is apparently assumed that
men will always rape and thus it is women who must be educated to protect
themselves and one another. Unfortunately, Foucaults critics repeat the error
of looking to womens behavior as a site for preventive action rather than
conceiving of ways to transform the subjects who rape and of transforming
gender more generally. As for the subjects who have already raped, they are not
mentioned much, but the suggestion seems to be that they should be kept
Chloe Taylor 17
longer behind bars, even if this only makes them more likely to re-offend. In
contrast to these strategies, Foucaults proposals for legislative reform concern
themselves with the problem: the offenders, and their socially constituted,
recidivist tendencies.
TAKING RAPE SERIOUSLY
Feminists have frequently objected to Foucaults comparison of rape to a
punch in the face (Foucault 1988a, 209), simply involving different parts of
the body. Helliwells description of Gerai might be used to defend Foucaults
view: as we have seen, men and women in this culture did not see why the
poor, vulnerable penis should be imagined as a particularly threatening
organcompared, for instance, to a stwhile rape, unlike beating with a
st, is not even on the law books in this community. This might justify
Foucaults view that it is possible to imagine a society in which rape would be
experienced as no worse than a punch in the face, or perhaps a series of punches
in the face which could last from several minutes to several hours or even
several days. I do, however, want to agree with Foucaults critics in objecting to
his trivialization of rape, although I do not nd the most objectionable instance
of this to be the famous punch in the face comparison, for the reasons
mentioned above, and because Foucault was not stating that rape is like a
punch in the face, but was asking two women to articulate the reasons why rape
is not like a punch in the face. I see the most objectionable instance of
Foucaults trivialization of rape arising, rather, in his lecture on Jouy delivered
at the Colle`ge de France, collected in Abnormal (Foucault 2003), which
feminists, to my knowledge, have yet to consider.
In this lecture we learn that Jouys intercourse with a young girl named
Sophie Adam not only involved childadult sex but rape. One wonders why
Foucault did not make this clear in The History of Sexuality. The fact that the
case involved rape makes Foucaults comments about the pastoral, everyday
pleasures of Jouy in The History of Sexuality all the more disturbing. In this
lecture Foucault moreover notes that Adam was not sexually innocent, and
had already masturbated boys her own age, as if this were relevant. He then
downplays the rape, saying that Adam was more or less raped and that it may
have been the precocious little girl who raped the simple-minded adult,
although there is no reason to suspect this. Foucault thinks that Jouy was in
any case decent toward the girl because he gave her some coins after raping
her, and that she was undisturbed by the event because she immediately spent
the coins on almonds (Foucault 2003, 292).
I do not necessarily want to say that Foucault is wrong in his evaluation of
how traumatic the experience of rape was for Sophie Adam.
16
It is difcult to
know how traumatizing rape would have been for a peasant girl of this era.
17
Yet even if rape by an adult was less traumatizing to Adam than it would be
for Foucaults readers today, this is not only because sex has become caught up
18 Hypatia
with identity but is indicative of the fact that many girls and women now have
greater expectations of controlling their bodies and sexual encounters than
they have had historically. Ruggiero argues that rape was relatively untraumatic
in the Renaissance due to the normalization of violence against women in this
period (Ruggiero 1995, 102). If it is true that the de-normalization of violence
has made rape more traumatizing than in the past, this is a positive historical
development. We may say of the contemporary experience of rape what Ian
Hacking has said about child abuse: even if it is a social construct, it is an
overwhelmingly positive one (Hacking 1995, 67). The possible lack of
trauma on the part of rape victims in earlier eras, their concern with their
familys honor rather than with their own lack of sexual autonomy, does not
demonstrate that women over react to rape today, but is testimony to the
historical abuse of women: so habituated were they to the idea that their sexual
destiny was not their own, that even the extreme expression of this fact may
not have been traumatic. So naturalized was rape as permissible masculine
behavior that it was not particularly off-putting in a prospective husband,
either for a womans family or perhaps even for the woman herself. It is a
positive achievement of feminism that these things are no longer so.
We should thus not conclude that because the psychological trauma of rape
is, to some indecipherable degree, historically constructed, victims today simply
need to take it less seriously, placing the burden of change once more on
women. Although, following Foucault, it is unfortunate that the experience of
rape has been caught up with a psychosexualized identity, this does not mean
that we should take rape more lightly than we do. This would be to return to a
Renaissance attitude toward sex crimes, which is not desirable: despite the fact
that sexual recidivism was not prevalent in early modern culture, the rape of
women and children was just as frequent, with the offenders simply more
widely dispersed throughout male society rather than concentrated in the
bodies of repeat offenders. We need to continue to take rape seriously, as both
Renaissance judges and Foucault failed to do, but we must do so without basing
rapes gravity on psychological arguments about trauma and the constitution of
sexual identities.
CONCLUSIONS: A NEW FOUCAULDIAN-FEMINIST APPROACH TO SEX CRIMES
In this paper I have explored the motivations behind Foucaults suggestions for
legislative reform, and have defended the concern with the social construction
of recidivism that underlies these suggestions. I have also extended Foucaults
argument to include the ways in which the discourses and practices in question
construct not only sex offenders but also their victims. I have suggested that
Foucaults concern with the social construction of delinquency, and with the
socially constructed nature of sex and crime in general, have been largely
ignored by his feminist critics, who consequently reinscribe the very gendered
and criminal identities that result in rape in our culture. While defending
Chloe Taylor 19
and expanding upon Foucaults position, I have nevertheless followed his
feminist critics in objecting to the manner in which he trivializes the sexual
victimization of women and children. Unlike these critics, however, my
objections do not lead me to reafrm the current penal system and its expert
discourses. Instead, I argue that we need to pursue a new feminist-Foucauldian
approach to sex crimes, one that neither medicalizes justice nor trivializes
sexual victimization.
This approach, different in some respects from both Foucaults position
and that of his critics, is already present in some streams of feminist theory and
practice, which, as we have seen, have long argued that law enforcement
and longer prison terms are not the solution to the oppression of women and
children. Like these feminists before me, I argue that we need to think about
social transformations that will prevent sex crimes rather than focusing on
punishing offenders and treating victims. As noted, however, much of
this literature fails to consider transforming the penal system itself when it
advocates social upheavals in the ght against sex crimes. While I agree that we
need to change mentalities about gender in order to prevent sex offenses in the
rst place, I also argue that we need to change the ways in which we deal with
those who have already offended in order to avoid the production of criminal
sexual identities and thus recidivism.
Angela Daviss work is particularly useful in this respect as it weds anti-
prison activism with a radical feminist critique of our current culture of sexual
violence. Davis argues that we need to move toward decarceration; although
the obvious places to start are by abolishing prison sentences for crimes related
to sex work and the war on drugs, Davis suggests decarceration strategies
even for the most serious of crimes. For instance, she provides the example of
the Truth and Reconciliation Commission in South Africa as one alternative
to the current approach to punishment, and writes approvingly of its use even
in a case of murder (Davis 2006, 11415). Davis focuses on the commissions
inspirational example of forgiveness, which is in stark contrast to the current
penal system in North America in which helping the victim means obtaining
harsher penalties for criminals. Retribution may not, however, be what brings
victims greatest consolation. Coming to understand the social causes of crime
and participating in the transformation of society so that similar crimes do not
occur is more likely to provide solace for victims, and is more likely than prison
to effectively combat crime. In a case that Davis explores, truth-telling and
forgiveness seem to have been a more fruitful path both for the men involved in
a murder and for the parents of their victim. Davis stresses the commissions
effort to understand the deep social causes of violence rather than simply to
punish instances of violence as they arose.
In addition to these points that Davis highlights, I would also argue that the
approach of the Truth and Reconciliation Commission offers an ideal contrast
to the problems that Foucault nds with the judicial system in that the truth in
question is not that of the criminal but of the crime. There is an emphasis on
20 Hypatia
telling the truth of criminal acts, rather than on discovering the truths of
criminal characters. This reverses the tendency that Foucault sees in modern
disciplinary societies. In the model of the Truth and Reconciliation Commis-
sion, criminal acts are moreover recognized as arising from a context that the
commission is engaged in changing, rather than from individual pathologies,
biographies, and possibly biologically rooted personality types that need to
be managed. In other words, the strategy is political rather than scientic.
Although, crucially, individuals are held accountable, and the trauma of
victims is given great importance, the strategy of Truth and Reconciliation is
not individualizing but is one of social change. Both offender and victim
become involved in this social transformation rather than in penal and medical
treatments that depoliticize crime and tend merely to reproduce it. While this
model may not be appropriate in all cases, we should be struck by the evidence
it provides of the possibility of thinking of an entirely different response to even
the most violent of crimes.
The Foucauldian-feminist approach to sex crimes that I am advocating takes
seriously Foucaults analyses of the disciplinary functions of the prison and of
the human sciences as these are applied to and construct criminality and
sexuality today. It also takes seriously the needs and experiences of victims,
without assuming that these are ahistorical. Consequently, this approach
would strategize ways of responding to sex crimes that avoid the pitfalls of the
prison and its expert discourses, as these have been imposed on both offenders
and victims, without dismissing the gravity of either victimization or crime.
The result would be an approach to sex crimes as contingent phenomena
structured by and arising from a social context that can be changed.
NOTES
1. Bell 1993 is a noteworthy exception.
2. http://www.ojp.usdoj.gov/bjs/crimoff.htm (accessed April 2, 2009). The lower than
average likelihood of re-arrest for any crime is probably indicative not so much of actual recidivism
rates than of the underreported nature of sex crimes compared to, say, burglaries.
3. For instance, the very specic image of the sex criminal, imagined as a predator lurking in
alleys to prey on our children (despite the fact that most child abuse occurs in the home at the
hands of someone the child knows), or as a black man who rapes white women (despite the fact that
most rapes are intra racial), has functioned to preserve the ideology of the patriarchal nuclear family
while reproducing racist stigmas and the racialization of justice, which in turn contributes to the
reproduction of white privilege and racialized poverty. The construction of delinquency, sexual or
otherwise, is, of course, also in the nancial interest of the prison industry.
4. In addition to Meloys study, see http://www.ojp.usdoj.gov/bjs/crimoff.htm for statistics on
recidivism in the United States. Actual recidivism rates may be higher than those reported here
since sex crimes are notoriously underreported compared with crimes such as theft and robbery, and
certain subcategories of sex offenders, such as pedophiles, have higher rates of recidivism than do
other kinds of sex offenders. Even given this consideration, however, the statistics are striking.
5. This popular image of the sex offender as a predator lurking in dark alleys is particularly
misrepresentative since most sex offenses occur in the home and are perpetrated by someone the
Chloe Taylor 21
victim knows. The media highlights stranger danger cases of sex crime, which are statistically
unusual.
6. Ruggiero documents that the rape of working-class women by nobles, in gangs or as
individuals, was common, while the rape of working-class women by men of their own social class
was also common, and, indeed, relationships often followed a pattern of rape, followed by
fornication, followed by marriage; see Ruggiero 1995, 31. Vigarellos study focuses on France,
and also shows both gang rape (Vigarello 1998/2001, 15051) and rape by individuals (78) to be
common and considered to be negligible.
7. Ruggiero, studying Renaissance Italy, argues that rapes became of more interest to the
courts when they involved violence, in which cases it was the violence and not the sex that was of
interest. Vigarello, focusing primarily on France, nds that even rapes involving violence, and
violent crimes in general, failed to interest the courts during this period. Only in the eighteenth
century was there a new sensitivity to violenceas in the Sade scandalbut this interest was only
in bloodshed, not in specically sexual violence.
8. Vigarello tells of a young shepherdess reprimanded by her uncle for being reluctant to
return to tend the animals, although it was known that she had already been raped three times
(Vigarello 1998/2001, 26). This failure of rape to arouse concern even on the part of the victims
family indicates how indifferent the state would be.
9. A striking example of the willingness to tolerate the rape of working-class girls and women
if it prevented more objectionable sex crimes such as homosexual sodomy is evident in Bernardino
of Sienas advice in 1427: Bernardino states that it is preferable to send daughters on errands in the
city rather than sons, since the latter might be abducted for the purposes of sodomy (cited in Trexler
1994, 374). Of course, daughters were at least as vulnerable to abduction and rape as sons, but this
was a small evil compared to that which it prevented.
10. In chapter 5 of The History of Sexuality, Foucault argues that in the classical age there was
a symbolics of blood rather than an analytics of sexuality, and that identity was grounded in blood
(bastard or legitimate, aristocratic or peasant, family alliance, nationality, and so on) rather than
sex. Although in rape cases it was the aspect of blood, rather than of sex, that interested the courts,
Vigarello shows that the law was still far more preoccupied with other crimes, such as robbery.
Vigarello argues that violence was so rampant in the early modern period that it was normalized and
accepted, and thus violent crimes in general were neither a subject of anxiety nor of much legal
action, compared to crimes against property. Vigarello argues that it was only in the twentieth
century that this was reversed. Violence is far less common and far less accepted todayfor
instance, while it was once standard practice to violently beat wives, servants, employees, and
children, all of these practices are illegal todayand this causes them to be taken more seriously
than crimes against property.
11. Vigarello argues that violence was accepted during the early modern period because it was
so pervasive, whereas crimes of property threatened the social order. To demonstrate this point, he
compares similar crimes that occurred within a few years of each other: two peasant women were
attacked on country roads in the same region of France. One was violently raped while the other
was robbed without bloodshed. The rapist was acquitted due to the low social status of his victim,
while the body of the robber was broken on a wheel (Vigarello 1998/2001, 23).
12. Although the understanding of rape in Helliwells article seems to be that of a penis forced
into a vagina, and this seems to be the denition of rape that she explains to the people of Gerai, it is
important to note that rape can occur without the use of a penis, for instance a person can be raped
with a bottle or a hand, which might be forced into a part of the body other than the vagina.
13. Thomas Laqueur has shown that the view that male and female genitals are isomorphic
was also held in the occidental world up until the modern era (Laqueur 1990).
14. Alcoff calls for a general prohibition (Alcoff 1996, 129) on all sexual relations that
involve a hierarchy of power, whether between adults and children, employers and employees,
22 Hypatia
doctors and patients, and so forth, not noting the sort of productive effects that such a prohibition
has, according to Foucault, inculcating rather than eliminating desire.
15. Woodhull and Alcoff make no mention of Discipline and Punish, whereas Hengehold has
one reference to it, but this is only to state that this book, along with The History of Sexuality: An
Introduction, problematizes confessional practices. She then goes on to draw exclusively on the
latter book for her discussion of this critique of confession, showing no real familiarity with
Discipline and Punish throughout her article. The argument regarding recidivismcould, moreover, be
derived from The History of Sexuality alone, which these authors do refer to, and yet none of them
raises it.
16. It must be admittedas even Ruggiero admitsthat how traumatizing rape actually was
in earlier eras is something that we cannot ascertain with certainty, since the documents we have to
study are written almost exclusively by men, and probably do not capture the perspective of women
and girls. This is true both of the trial records that Ruggiero studies and the documents surrounding
the JouyAdam case that interest Foucault. Griselda Pollock has compellingly argued that rape
might have been just as traumatic to a girls or womans identity in the Renaissance and early
modern period as it is today, although it would have been traumatic in different ways and due to
different discourses. While today rape is experienced as traumatic because it involves a loss of
personal integrity, in the early modern period as in the ancient and medieval worlds it would have
been traumatic because it entailed a loss of what Pollock calls social being. While today
medicinal and legal discourses construct the rape victims identity into that of a permanent victim
or at best a survivor, Pollock argues that a girls or womans identity in the Renaissance could also
be permanently altered by the rape. Surely, Pollock argues, this radical shift in a girls or womans
identity was just as traumatic as that which occurs today, and just as permanent, even if it hinged on
honor rather than sexuality, and even if it was constructed through different kinds of discourses
than the medical discourses of today. See Pollock 2005, 187.
17. Taking up Pollocks argument (see previous footnote), it could be argued that the shift in
identity that would occur as a result of rape in the Renaissance and early modern period would have
been more or less signicant depending on the status of the woman prior to the rape, or how far she
would have had to fall. Poor women were considered to have dubious honor to begin with, and
inconsequential marriage prospects, and so rape had less potential to alter their identities and
destinies than in the case of women whose families had much invested in their daughters honors
and in the marriages they could make. If we discount psychological trauma as a modern invention
and follow Pollock in describing the Renaissance trauma as occurring at the level of social rather
than psychological identity, women or girls like Sophie Adam with little social status to begin with
and whose virginity was almost inconsequential had less to lose as a result of rape.
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