Catharine MacKinnon on why consent is flawed

Part of the syllabus for this course includes a short presentation introducing the seminar to a reading related to our topic of sexual consent. While her paper is now a bit dated (it was published in 1983), I chose Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence by Catharine MacKinnon. This blog post is a summary of my presentation, and you can access the slides here—I should mention it was a short presentation because there is a lot in MacKinnon’s paper I didn’t unpack. The main point I wanted to get across is why MacKinnon thinks that consent, framed as a woman “consenting” to sex with a man, is flawed. She focuses on heterosexual relationships, and while I wonder how her analysis would track onto other cases (such as lesbian sex), I follow her in discussing only sexual consent between men and women in this post. 

MacKinnon is concerned with systematic inequality. For her, a feminist reading of power sees sexuality as a gendered hierarchy (à la the bourgeoisie over proletariat setup we see in Marxism). Male and female are created through roles of dominance and submission—transposed onto the Marxist binary, the state is male (bourgeoisie) and exerts control over women’s (proletariat) sexuality. In this way, “each sex has its role, but their stakes and power are not equal” (635). Male here refers to a “social and political concept,” and accounts for the fact that the male perspective is and has been the dominant point of view. 

By the liberal definition of feminism, sexism is just a myth to be dispelled—it is “an inaccuracy to be corrected” (640). This makes rape an act of violence—rape becomes a displacement of male power (bourgeoisie in the Marxist analogy) onto sexuality. On this view, sexuality has nothing inherently to do with power, and only derivatively becomes a relationship of dominance through this transposition of privilege. 

Unfortunately, the liberal view doesn’t address the conditions that make women “rapable” (651). MacKinnon’s criticism is that this maintains the systematic conditions which generate men who express themselves violently towards women, women who cannot resist because they are set up to be submissive, and the role of the state in this dynamic (643). (I like to call this kind of equality “feminism for the patriarchy” because it works towards parity while maintaining traditional patriarchal hierarchies).

She thus prefers a radical feminist approach, what she calls “true feminism.” I actually think the Wikipedia definition of radical feminism is pretty good-- ”a perspective within feminism that calls for a radical reordering of society in which male supremacy is eliminated…” Rape has been de-legitimized by the law, in that it is punishable; this is progressive on the liberal view but not empowering in the feminist sense because it sustains old hierarchies. On the radical feminist view, which is rooted in the experience of victims, rape becomes an expression of male sexuality within the social sphere of male power.  

MacKinnon, as a radical feminist, calls for a systematic change that is necessarily post-Marxist in its methodology. She calls for “a new jurisprudence” and “a new relation between life and law” (658). 

Within the system as MacKinnon sees it, consent when it comes to sexual encounters is fundamentally deformed. Presuming the law is written from the male POV, its standpoint is unjust: she sees it as equivalent to allowing one persons conditioned unconsciousness to contraindicate another’s experienced violation (654). In other worse, the systematically produced male standpoint does not allow for a man to tell a woman she has consented to something she feels she did not actually consent to. There is more than a little epistemology going on here; under conditions of male dominance, women cannot consent to men as equals. They have been placed in a position of submission and are expected to be subordinate. MacKinnon wonders if this is why the wrongness of rape has been so difficult to articulate. Men in the dominant role may expect or feel entitled to sex (*cough cough Incels*) due to the nature of this Marxist setup. If an accused man wrongly (but sincerely) believes that a woman he forced into sex consented, he could conceivably fall back on having a “mistaken belief” which was systematically produced (653). If consent is the standard and the standard has been produced by men, they can be acquitted for simply not understanding the female point of view. 

This reminds me a lot of Louis CK, who admitted that he didn’t understand the power he held over women by nature of his fame and their admiration of him. So, says he, “when you have power over another person, asking them to look at your dick isn’t a question. It’s a predicament for them.” Even if a woman says “yes” in this situation, the power dynamic at play means that the playing field here is uneven. On MacKinnon’s view, this is mostly due to the male/female dominance/submission hierarchy, but I think we can say that class and fame are other types of intersecting power dynamics that can affect relationships.

I think this is a good contemporary example of an acknowledgement of the presuppositions that must be considered if we are going to frame sexual expression as consent between two people—and how men can use the current system to rationalize their behaviour. One major critique of this picture is that it greatly reduces the view of female agency, so I’m not sure if I’m personally sold on MacKinnon’s view, but I do think she raises some good points about why consent could be unbalanced or defective all together that are worth thinking about. I am, most certainly, a radical feminist, so even though this was written 36 years ago, I do agree with MacKinnon in calling for a profound rethinking and reformation of systems (including legal ones) that were produced by cis hetero white men and ignore or erase the perspectives of other groups, including but not limited to women.