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Redistributing Rape

Redistributing Rape

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Published by Estefanía Vela
Jeannie Suk
Jeannie Suk

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Citation: 48 Am. Crim. L. Rev. 111 2011Content downloaded/printed fromHeinOnline (http://heinonline.org)Mon Jul 1 00:46:33 2013-- Your use of this HeinOnline PDF indicates your acceptanceof HeinOnline's Terms and Conditions of the licenseagreement available at http://heinonline.org/HOL/License-- The search text of this PDF is generated fromuncorrected OCR text.-- To obtain permission to use this article beyond the scopeof your HeinOnline license, please use:https://www.copyright.com/ccc/basicSearch.do?&operation=go&searchType=0&lastSearch=simple&all=on&titleOrStdNo=0164-0364
 
REDISTRIBUTINGRAPE
Jeannie Suk*What
does
it
mean
to
be
a
man?Thisbasicquestioninfuses
thetheory
of
Sharon
Dolovich's
fascinatingwork
in
Strategic
Segregation
inthe
Modem
Prison.
1
Her
closelytextured
and
deeplyfocused
study
of
L.A.
County
Jail's
tellingmeasures
to
address
prison
rape-namely
segregation
of
gaymenand
transgender
women
from
the
generalmale
prison
population-is
a
crucibleforpathbreakingtheoreti-
cal
workonincarceration,
and
also
a
meditation
onthe
constitution
of
gender
and
violence.Prison
ishell.
If
thereis
anything
in
today's
UnitedStates
that
mayapproximateHobbes'
state
of
nature,
2
where
men
live
in
continual
fear
and
danger
of
violent
death
by
other
men,andsecurity
is
whatever
a
man's
own
strength
and
invention
enables,it
must
be
the
modem
prison.
There,
the
war
of
allagainst
all
is
notmerechaos
but,
rather,
reveals
consistent
patterns
as
the
stronger
inevitablysubordinatetheweaker.
Onesuch
undeniablepattern
isthe
central
and
routine
place
of
rapeand
itsthreat
in thesocial
system
of
the
prison.
In
Dolovich's
prison,
the phenomenon
of
prisonrapecannot
be
understood
apart
from
the
concept
of
masculinity.
Her
theorybegins
with
the
basic
idea
that
men
are
generallyanxious
about
their
masculinity
and
need
to
find
ways
of
proving
their
masculinity.
3
Proof
of
masculinity
can
comeonly
in
relation
tothat
which
is
feminine.
4
Sexual
domination
of
women
is
the
"method
of
choice,"
in
contextswhereproductive
means
of
proving
one's
masculinity
are scarcely
available.
5
Prison
is
a
context
wheresuch
productivemeans
are
lacking.According
to
Dolovich,beingaroundonly
men
exaggeratestheimperative
to
prove
thatone
isa
man.
6
Maleprisoners
thus
attempt
tosexually
dominateothers
asa
means
of
provingtheir
own
masculinity.
7
Sexualpenetration
is
dominationthat
establishes
that
one
is
masculine
and
that
the
other
is
feminine.
8
Men
who
do
notwant
tobe
penetratedmustbeforced
or
threatened.
Rape,then,
is
a
performance
of
binary
and
relationalgender;sexualdominationforces
into
being
*
Professor
of
Law,Harvard
Law
School.
©
2011,
JeannieSuk.
1.
SharonDolovich,
StrategicSegregation
nthe
Modem
Prison,
48
Am.
CRim.
L.
REv.
1
(2011).
2.
THOMASHOBBES,
LEVIATHAN
63-66
(Prometheus
Books
1998)(1651)
(theorizing
that
thestate
of
nature,
in
the
absence
of
civilsociety,
is
a
state
of
war
of
all
against
all,
"a
warre
of
everymanagainsteveryman").
3.
See
Dolovich,
supra
note
1,
at
14-15.
4.
Id.
at
15
(quoting
SUE
LEES,
RULING
PASSIONS:
SEXUAL
VIOLENCE,
REPUTATION
AND
THE
LAW
105
(1997)).
5.
Id.
at
16.
6.
Id.
7.
Id.
8.
Id.
 
AMERICAN
CRIMINAL
LAW
REVIEW
the male-female
dyad
that
is
essential for
the
show
of
masculinity.
9
Students
of
feminist
theory
will
recognize
theprofoundinfluence
of
CatharineMacKinnon
on
Dolovich's
logic
in
theorizing the
phenomenon
of
prison
rape. Thekey pure
sentences
ofMacKinnonarequoted
in
a
footnote: "Man fuckswoman.Subject
verb
object."' Dolovich
writes,
"as
with intimate relationships
in
societyin general,
thedefining scripts are
gendered:
in
men's
prisons,
as
in the
freeworld,men dominate
women."'" In
this
gloss,
mendominatewomen
in
society ingeneral
by
fucking them.
In
a
prisonthat
houses
men only?The"women"
are
those
whoare fucked.
To
fuck
is
tobe
gendered
male.
To
be
fucked
is to
be genderedfemale.
As
Dolovich
moves
through
skillful
application
of
thispowerfulfeminist sexualsubordinationtheoryto prisons,
one
has
the
impressionthatthe match
is
perfect.The
sexual
subordination theory
is
at
itscore
about
men subordinating women, but
the
theory's
reach
is
not limited
to
situationsconsisting
of
biological
men
and
women.MacKinnon
herself
has
used
the
theory to explain that malesexualharassment
of
another
male
effectively
genders
the
harassed male
as
one who
loses
his
masculinity, becoming
sexually
subordinated
and
therefore female.'
2
As
MacKinnon wrote
in
her
amicus brief
in
the
Supreme
Court
in
Oncale
v.
Sundowner
Offshore
Services,
a
case
aboutmale-male
sex
harassment:
"Men
who
are sexually
assaulted
are
thereby stripped
of
their social status
as
men. They are
feminized:
made
to serve the
function
and
play
the
rolecustomarily assigned
to
women
as
men's
social
inferiors."
3
Dolovichexplains that,
as
an
exclusively
male
environment,
a
men's
prison
generates
more
than
the usual
amount of
anxiety about masculinity, andthat leads
to
"hypermasculine" behaviors
to
prove
one
is
a
man.
"4
he
all-male aspect
of
the
prison
experience
helps
explain
theprevalence
of
sexual
violence
in
men's
prisons.Making
the
all-male prison
environment
an
exemplar
of
the
sexualsubordinationtheory
allows
Dolovich
to
reveal another gender theory that runs through
herarticle: that
of
gender
as
performance.
15
Dolovich's
prisoners appear to
be
Butlerians.1
6
No
biological
females present?
No
matter. The
world will
be
gendered-forcibly
arrayed
into
those
who
willperform
roles
of
male
and
female.
9.
See id.
at
14-16.
Prisoners
seen
asweak are vulnerableto being"turned
out,"
or
emasculated, which marks
their
transformation into women
in
the
prison
context.
Id.
at
17.
Such
gender
redefinition,however,
is
unnecessaryfor gay
men
and
trans women,
as
theyare
already
perceived as women due
to
sexual orientation alone.
Id.
at
18.
10.
Id.
at 14
n.67 (quoting
CATHARINE
MACKINNON,
TOWARD
A
FEMINIST
THEORYOF
THE
STATE
128
(1989)).
11.
Id.
12.
Brief
of
NationalOrganization
on
Male
Sexual Victimization, Inc.
et
al.
as
AmiciCuriae
in
Support
of
Petitioner
at
10,
Oncale
v.
Sundowner
Offshore
Servs.,
Inc.,
523
U.S.
75(1998)
(No.
96-568). CatharineMacKinnon served
as
counsel for
the
amici
curiae.
13.
Id.
14.
Dolovich,
supra
note
1,
at
15-16.
15.
See,
e.g.,
d.
at
17
("[Tihe
felt
imperative
to
perform
a
gendered
ideal
of
'hypermasculinity'
is
a
rational
response.").
16.
See
JUDITH
BUTLER, GENDER
TROUBLE:
FEMINISM
AND
THE
SUBVERSION OF IDENTITY
(1990)
(theorizing
gender
as
performative, constitutedthrough
repeated
acts).
[Vol.
48:
111

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