Foucault first proposed the idea in 1977 where he suggested that rape be treated like any other act of violence, like a punch in the face. Foucault stated, “In any case, sexuality can in no circumstances be the subject of punishment.”[1] First, sexuality is used in this context to refer, I am assuming, to the sexual aspect of a rape and rape is a term used in the text where this suggestion was first published. For the remainder of this post, I will be using the term sexual assault instead of rape to refer to an act which someone did not consent to and that had a sexual aspect to it. Second, while I agree with the idea that sexual assault should be treated like any other assault, I do not agree that we should not bring in the sexual aspect of the sexual assault at any point, which is also part of Foucault’s suggestion.

In the Ghomeshi trial, the issue is whether the women consented to the acts which Ghomeshi is accused of, and subsequently, the offences he is charged with — four counts of sexual assault and one count of overcoming resistance by choking. Such instances include punching, choking and biting. And yes, some people can agree to some sort of rough sex. Yet, when someone says that they do not consent to such acts, then they should be believed on their definitions and experiences. In this case, however, it is not a fact that these women are not believed. Actually, the very fact that this trial is taking place undermines the assertion that these women are not believed.

In a chapter titled, “Confinement, Psychiatry, Prison”,[2] Michel Foucault engages in a dialogue with David Cooper (a medical doctor/psychiatrist who is critical of the institution of psychoanalysis because it “inflicts violence on individuals”), Jean-Pierre Faye (writer, philosopher and editor of the journal Change, where the dialogue first appeared), Marie-Odile Faye (editorial assistant for Change) and Marine Zecca (collaborator with David Cooper).

Throughout this dialogue, the five people discuss social control, social order and punishment. However, the discussion I want to highlight is the dialogue on rape. Foucault outlines how France was, at the time, reforming penal law and explains that they reached out to him. France contacted Foucault because they wanted his opinion on legislation relating to sexuality (p 200). Foucault outlines that France asked him questions relating to:

“[E]verything concerning legislation about films, books, etc., none of that is any problem to me. I think one can in principle that, in no circumstances, should sexuality be subject to any kind of legislation whatever. O.K. But there are two areas that present a problem. One is rape and the other is children” (p 200).

Cooper replies, “That’s the most difficult question” (p 200).

Foucault then responds:

“One can always produce the theoretical discourse that amounts to saying: in any case, sexuality can in no circumstances be the subject of punishment. And when one punishes rape one should be punishing physical violence and nothing but that. And so that it is nothing more than an act of aggression: that there is no difference, in principle, between sticking one’s fist into someone’s face or [rape]…But, to start with, I’m not at all sure that women would with this…” (p 200).

And, the only two women present for this discussion do not agree with Foucault’s suggestion (p. 200). In response, Foucault asks the women, “So you accept that there is a ‘properly’ sexual offence” (p 200). Zecca replies, “Oh yes.”  Faye, the second woman, also replies, “For all the little girls who have been attacked, in parks, in the underground, in all those experiences of everyday life, at eight, ten, or twelve: extremely traumatizing” (p 200). I am assuming Faye is referring to the ways young girls are sexualized in society. However, Foucault asks Faye if she is referring to exhibitionism, and she says yes (p 200). The discussion then moves from looking at rape as similar to a punch in the face, or an act of violence.

Foucault states, “The answer from both of you, Marie-Odile and you, too, Marine, was very clear when I said: it may be regarded as an act of violence, possibly more serious, but of the same type, as that of punching someone in the face. Your answer was immediately: No – it’s quite different. It’s not just a punch in the face, but more serious” (p 201). Zecca replies, “Of course!” (p 201). Then, Foucault goes on to question the basis for treating rape differently than any act of violence (p 201). Foucault suggests that “sexual organs” are not like any other part of the body and thus, they must “be protected, surrounded, invested in any case with legislation that isn’t that pertaining to the rest of the body” (p 202). Zecca replies, “I was thinking more specifically about children. But, where children are concerned, I don’t think it’s any longer simply a sexual act. I believe it’s really an act of physical violence” (p 202). Cooper chimes in, “It isn’t sexual. It’s a wound.” (p 202). Zecca then replies to Cooper, “That’s what I meant. It’s no longer sexuality, we’re in a different area. That of physical violence” (p 202).

Foucault then replies to everyone, “In that case, then we come back to what I was saying. It isn’t a matter of sexuality, it’s the physical violence that would be punished, without bringing in the fact that sexuality was involved” (p 202).

In the discussion surrounding the trial, there are some people calling out the low conviction rates in sexual assault cases as being linked to “believability.” Yet, the goal of the prosecutor is not to obtain convictions. Their task is to “lay out all relevant evidence capable of supporting a conviction” (See Boucher).

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.[3]

So, by the very fact that this trial is happening, it suggests that there was or is enough evidence in the prosecutor’s file to lay the charges and to present relevant evidence to support a conviction.

The central issue in this trial is the obvious: did these women consent? If we ask this question in the context of Foucault’s suggestion that sexual assault should be treated like a punch in the face, we  still ask ourselves the very same questions minus the sexual aspect. Did these women consent to the choking? The punching? The biting? What makes these acts different from any other person who says they do not consent to being assaulted in another way? And in this post, Reflection on Week One of the Ghomeshi trial, there is reference to a National Post article where another law professor states, “We wouldn’t start questioning the victim about whether or not he likes being punched in the face.” No, we wouldn’t ask someone if they liked being punched in the face. However, we are not asking someone if they liked being punched in the face, we are asking whether someone consented to such acts (the punching, biting, slapping) And, it is possible to consent to an act but not enjoy it (consent is not premised on whether someone liked something or not and should never be premised on such questions).

But, why are we placing such acts like punching in a sexual context?

Some people consent to acts including sexual acts that they do not like all the time. Whether you like something or not doesn’t vitiate consent. Also, people may consent to acts that someone else might find questionable like choking. Or, biting. Or, punching. And yes, imagine if we took out the sexual aspect of such assaults, do you think what happened before, during or after the assault might be of little importance? I’m not saying that we do away with a discussion of how women are victims to violence and that this violence very much tends to be sexualized and gendered. I am just saying that in order for the courts to grapple with these targeted attacks, that there might be some value in removing the “sexual” from sexual assault if the goal is to secure more convictions in these cases (again, I don’t agree with this end goal and I have previously written about this here).

Still, this is not to say that the decades of feminist legal work on the issue should be ignored. But if we have gone from rape to sexual assault, what is preventing us from going from sexual assault to assault and then, dealing with the sexualized and gendered aspects after a conviction? Also, we have to be cognizant of how we talk about the identifier “women” in these cases because I only know from experience that when we talk about women as the majority of sexual assault victims, I know that “women” only includes a certain kind of woman. When we talk about women being targeted for sexualized and gendered violence, do we include trans women, for instance? And for some cases, the Courts assume that the victim of a sexual assault consented because of actions before, during and after the assault, like in the case of Cindy Gladue.

The fact Cindy was a sex worker and met Barton in the context of sex work was an important fact at trial. So, the Court, in its instructions to the jury, noted that Cindy could consent to the sexual acts because she appeared to be enjoy “it.” Even then, the Court put too much importance on the whether Cindy enjoyed the acts, where Barton (the man charged with killing her) testified at trial said she did. The question when it comes to consent should not be whether someone enjoyed it. It should be whether or not they consented to the act of violence. And, very properly, it is well-established in law that nobody can consent to violence. Still, if the law acknowledges that nobody can consent to violence, focusing on the sexual aspects erases, in my opinion, the actual violence that takes place in sexual assault. So, while there is a discussion as to how there has to be perfect “victims” in sexual assault cases, I would put forth that there has to be a perfect “woman” to just fit into the discussion about sexual assault, leaving out any considerations on actual charges and convictions. Because we all know that the court did not see women like Cindy as the perfect woman and the discussion around sexualized and gendered violence for sex workers will continue to erase how violence takes place for sex workers if we are all too fixated on the “sexual” in the sexual assault.

 

 

[1] “Confinement, Psychiatry, Prison” in Michel Foucaul, Politics, Philosophy, Culture: Interviews and Other Writings 1977-1984, translated by Alan Sheridan and others, edited with an introduction by Lawrence D. Kritzman at p 200.

[2] Michel Foucaul, Politics, Philosophy, Culture: Interviews and Other Writings 1977-1984, translated by Alan Sheridan and others, edited with an introduction by Lawrence D. Kritzman.

[3] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2741/index.do