A ‘Beautiful half hour of being a mere woman’

The Feminist Subject and Temporary Solidarity
Lucy Freedman


The recent rise of social media and subsequent opening-up of feminist politics has intensified decades-long debates between factions in feminist and queer movements. Many of these new conversations turn around questions of identity and are hugely important, yet also often troubling. Contemporary feminism faces a false dichotomy: should we, those whose bodies are read andenforced as female,identify with orreject the gender imposed upon us? This question cuts to the very heart of how we, as feminists, define or understand what genderis. Taking a materialist understanding, I will be discussing gender as externally produced and inherently oppressive. This is at odds with a new turn in feminism, one that I am calling soft abolitionism, which considers gender to be partially self-produced and capable of providing a framework through which to reach liberation.

In order to negotiate possible paths out of this stalemate, I explore ways in which one could position oneself in the category ‘woman’ as a useful feminist tactic, while still maintaining a critical distance. I argue that gender is both a traversable, rhetorical form and – for now – a concrete, embodied reality. I am interested in moments where identification has been dealt with as a transitional state or enactment of class solidarity: moments of resistance where a bond is recognised through the attempt to transform circumstances which previously appeared as natural.

I begin by discussing soft abolitionism; a loose political position which supposes gender to be voluntary and infinitely flexible, and that one has the right to identify as anything, including nothing. Such a politics is often propagated online. C.E., a contributor to the Lies journal,[1] provides a near definition of soft abolitionism in a critique of the founding of endless newidentities’ within ‘radical, queer’ circles. They claim that this re-positions the radical queer voice as a bourgeois subject, preoccupied with a liberal form of self-expression where the ‘interruption of norms becomes conflated with “resistance”’.[2]

Soft-abolitionist discourse as a whole threatens a shift away from a revolutionary feminism. However, elements of its arguments are worth teasing out and incorporating into praxis. The concept of gender fluidity, though often ignoring the material strictures of gender, reconfigures traditional transgender narratives where binary gender is traversed but otherwise left intact. What can be usefully taken from this discourse is an acceptance of the feeling that neither ‘male’ nor ‘female’ prove wholly desirable spaces to inhabit.

Mina Loy’s poem ‘One O’Clock at Night’ (written between 1914 and 1920) provides a refreshing framework for exploring a porous ‘womanness’. The poem, I will argue, poignantly expresses that transience so crucial to a soft-abolitionist politics, but the speaker is also fixed, her body is conflicted between gender as experienced and as imposed.

Drawing on Loy’s very personal articulation of the experience of being a woman, I discuss an essay by Iris Marion Young. Here, the disempowerment of an individual female subject similar to Loy’s is weaponised as the foundation of a group subject-position. The oppression and subjection of all those gendered as women becomes a catalyst for shared resistance. I then discuss current feminist struggles, arguing that an injection of Young’s materialism into their praxis might provide a more nuanced and dialectical position, where the feminist subject is a member of an amorphous class which is both non-elective and traversable.


Soft Abolitionism

Since the emergence of cultural feminism in the mid-1970s, it seems that everyone is now at ease in adopting a ‘feminist’ lexicon; the liberal discourse surrounding Hillary Clinton’s failure to smash the ultimateglass ceiling’ being a pertinent example. As the strength of feminism’s breakthrough with its second wave continues to wane, its effects are still percolating their way into popular attitudes and policy, and much has changed in the specificities of gendered oppression in the decades between. From the mid-1970s, materialist feminisms established an important praxis whereby the antagonism between men and women is positioned as one of class conflict. Since the second wave of feminism, there have been significant shifts in production and subsequent effects on gender roles and relations. Consequently, a model of gender based on orthodox Marxist conceptions of class conflict no longer easily maps onto most people’s experience.

Many have attempted to unearth the material basis of an experience of gender subject to recent vicissitudes of the market. A notable example of this is the Endnotes article, ‘The Logic of Gender’.[3] Here, the productive (male) and reproductive (female) spheres of production are reconfigured as ‘directly and indirectly market mediated’,[4] allowing room for the growing number of women in traditionally male jobs, and the general ‘feminisation’ of labour within a Western context. Yet still, a materialist approach which understands gender as subsumed to capital now forms a tiny current in an insurmountable tide of liberal feminism.

Since the late 1980s there has been a wealth of thought around the concept of gender ‘identity’, much of this filling the gaps where a materialist analysis of gender has been largely absent. This new discussion has attempted to de-centre previous feminist narratives (which have taken white, middle-class Western women as their universal subject) or to queer a narrative which fixes all bodies as either productive or reproductive. A legitimate criticism of contemporary Marxist feminism is that it has not done enough to deal with the multifarious divisions and oppressions which run through women as a class. A wholesale rejection of second-wave thought on these grounds, though – often in favour of a poststructuralist conception of gender-as-discourse – is deeply concerning. I argue that it can lead to a de-politicising of feminist struggles, as it no longer sees gender as necessarily violent, and favours individuated gender identities over generalised solidarity.

Soft abolitionism has its roots in queer theory of the 1990s – most notably Judith Butler’s Gender Trouble (1990). Kate Bornstein was one of the pioneers of the concept of ‘gender fluidity’, a key soft-abolitionist concept. She defines this in her bookGender Outlaw: On Men, Women, and the Rest of Us (1994) as ‘the ability to freely and knowingly become one or many of a limitless number of genders, for any length of time, at any rate of change’.[5] This belief becomes practice in My Gender Workbook (1998) where she prompts her readers to think critically about their own gender through teen-magazine style quizzes and other exercises – such as, ‘write down a list of five of your identities’, instructing readers to make lists of ‘your identities’,[6] or to draw pictures of oneself and ‘A Perfectly Gendered Person’ in order to make comparisons between the two.[7] This self-interrogation, Bornstein hopes, will lead us to arrive at the conclusion that there is no monolithic ‘male’ or ‘female’, but, rather, as many expressions of gender as there are people.

One can easily see the link between exercises on gender fluidity in Bornstein’s Workbook – a text which aimed in part to offer support to young queers who felt they were dealing with the weight of gender alone – with online resources which provide a similar service today.Ask a Non-Binary[8] is a blog where anonymous users send questions to the moderators who answer publicly. This is an example of a fairly typical conversation:

Anonymous: I feel both female and agender but sometimes neither at the same time? Any labels that come to mind with this?

Answer: demigirl/nanogirl maybe?

Another user asks, ‘[d]o you know if anyone else uses mae/mair pronouns? I feel like the only one…’ and is told by Danny, a moderator, that although they do not know of anyone else, ‘you can go ahead and be the only one using them though!’

Yay Pronouns!,[9] on the other hand, works more like a forum dedicated to compiling lists of pronouns its readers and contributors may choose to adopt. Examples include ‘dra/drag/drago/dragoself’, ‘mer/mers/mermai/merself’ and ‘paw/paws/pawself’.

Something which is striking about both these websites, and certain currents of queer discourse in general, is an expressed desire to ‘identify’ as something other than human. This is overtly apparent in Yay Pronouns!’s lists, which are a direct import from ‘Otherkin’ – people who ‘identify as partially or entirely non-human’,[10] but also evident in, for example, the adoption of the unicorn as a symbol of queer resistance. The desire to distance oneself from a species which only accepts those who conform to its narrow (gendered) codes is understandable. However, a fantastical armour as means of survival must also be coupled with the struggle for a more tolerable model of humanity.

Such a retreat functions as a response to a violent process of othering. Those who cannot easily be recognised as properly gendered subjects become abject. Bodies which cannot easily be slotted into a totalising regime of gender are not afforded the ability to create space elsewhere. ‘Our pronouns are “oil slick” & “meat” and “that blessed cavity” & a switch to the world’, says Verity Spott in their poem ‘Pronoun Manifesto’.[11] Spott’s identification with that which evades human categorisation-through-gender expresses a similar desire to the users of Yay Pronouns! Yet where soft abolitionism often encourages alignment with the cute and fantastical, Spott demonstrates a desire for abjection. They recognise that a subject who cannot easily be gendered is already aligned with waste and death, and that a perverse pocket of resistance can be found when these links are strengthened.

In a reading and discussion of their Trans* Manifestos[12] at Somerset House, Spott referred to the ‘resistant queer subject’. Resistance here comes through a rendering of oneself as ‘unreadable’ or ‘illegible’. In their Trans* Manifesto Spott says, ‘[s]ymbolic violence is permanent, the entire artifice of the liberal’[13] – and nowhere is this enacted more effectively than through language and naming. As such, a ‘resistant queer subject’ is one who does as much as one can to refuse liberal subjectivity: to work against ‘symbolic violence’ through ‘enacting a new regime of symbols by means of opacity’.[14] Attempts to broaden gender through, for example, the adoption of ‘otherkin’-inspired non-human pronouns or the fight for legal recognition of a third gender aim to locate within such a register a place of comfort or ‘homecoming’. Engagement with abjection, such as through the use of the pronoun ‘it’ which is favoured by some, cannot exempt anyone from subjection to this register, but can symbolically refuse its language as total.

Spott’s manifestos act as screeds against both ‘symbolic violence’ and those who think that the symbolic is all that must be destroyed, that itis not a shield for something more tangible. In ‘Pronoun Manifesto’ they denounce ‘people in pockets of anxiously-rehearsed resistance networks’ who say ‘that the language need[s] to be mended’. Where soft abolitionism attempts to explode the diagnostic language of gender, Spott realises that the ‘mending of pronouns, or the attempt to meld them closer to our bodies is impossible, it actually just pushes us tighter into the violence of language’.

While soft abolitionism does not always take flight towards the fantastical, it does usually promise endless possibility; these possibilities begin with language, or at least being reinforced by it. Jacqueline Rose[15] talks about her experience at a ‘Binary Defiance Workshop’. Here she felt that some participants expressed the belief that ‘one of the greatest pleasures of falling outside the norm is the freedom to pile category upon category’ and consequently created ‘interminable lists’ of possible gender identities. This list-making practice has been adopted by Facebook which, in 2014, along with ‘Network of Support, a group of leading LGBT advocacy organizations’, created ‘an extensive list of gender identities that many people use to describe themselves’.[16] A year later, this was considered to be, perhaps, too diagnostic. The solution was to introduce a system of self-diagnosis: they now ‘include a free-form field’ so that if you do not identify with the pre-populated list of gender identities, you are able to add your own’. This step is a huge victory for proponents of the ‘language needs to be mended’ school, but in practice does little more than fold the ‘resistant queer subject’ back into a lexicon of gender diagnosis, even if it is a self-determined one.

The belief that there are as many genders as there are Facebook users signals a confusion as to how gender functions. This confusion is apparent across soft abolitionism, from Bornstein onwards. Bornstein’s definition of gender takes an ostensibly materialist starting-point – ‘Gender meansclass’, she says.[17] Where a Marxist feminism would recognise women as a class and seek the abolition of gendered difference, Bornstein’s soft abolitionism aims to find liberation within a class system: ‘Gender identity answers another question: “to which gender (class) do I want to belong?”’.[18]

Bornstein’s faith in total fluidity echoes common but mistaken readings of Gender Trouble. Judith Butler herself has defined this ‘bad’ reading as:

I can get up in the morning, look in my closet and decide what gender I want to be today … I can change it again and again and be something radically other, so that what you get is something like the commodification of gender and the understanding of taking on a gender as a kind of consumerism.[19]

Butler’s argument that gender is embodied and ossified via a series of repeated performances has been misinterpreted as evidence that gender performance is a conscious and easily-changeable one. A generous interpretation of this might be to consider it as an optimistic jumping-ahead; a feminism which pioneers post-gender subjecthood before gender has been dismantled. To be less generous, one might say that this feminism is a liberal or non-revolutionary one, a shift away from a politics based in class-struggle and abolitionism, and towards one of individual, subjective empowerment from behind new categories. It is a soft abolitionism in that it assumes that gender can be done away with if we wish it hard enough, or that a discursive eschewal of gender necessitates its material destruction.


Gender Class: Who Belongs?

As I have argued above, while a conception of gender rooted entirely in a poststructuralist epistemology may be attractive, a complete break from a materialist understanding of the function of gender is dangerous. Stephen Whittle epitomises these dangers. ‘Sex and gender no longer appear as stable external categories’, he announces, claiming they have been done away with through ‘the postmodern process of deconstruction, in which modernity and its values, including gender, have been stripped away’.[20] While sex and gender have never been stable categories and their cultural implications are constantly shifting, his assertion is simply not true. In fact it is negligent: to imply that gender has been successfully ‘stripped away’ is to claim that people are no longer oppressed by systems of gender, that transgender people are not more likely to be murdered than their cis counterparts and that non-binary people do not have to go through life being misgendered.

One could easily use Butler’s claim as justification to slip into the lazy essentialism and transphobia of (for example) the journalist Melanie McDonagh, who is outraged by ‘the notion that you can simply put on a gender the way you change your contact lenses’.[21] She panics that the supposed ease by which one can ‘change gender’ is ‘symptomatic of a worrying indifference to a basic question of what makes us ourselves’. It is important though to explore what lies between these two assertions. McDonagh is terrified by the fragility of gender and the prospectof its destabilisation. Butler is all in favour of such destabilisation, but warns against the premature hailing of the end of gender, which quickly seeps into ‘a kind of consumerism’.

‘One main reason to conceptualize women as a collective’, argues Iris Marion Young, ‘is to maintain a view outside liberal individualism’.[22] She picks up on the concern that a soft-abolitionist approach can make it harder to ‘conceptualize oppression as a systematic, structured, institutionalised process’,[23]often framing individual perpetrators as thesource of trauma, rather than as enactors of structural violence. Jacqueline Rose also finds problems in Whittle’s analysis:

Stephen Whittle lists as one of the new possibilities for trans people opened up by critical thought the right to claim a ‘unique position of suffering’. But, as with all political movements, and especially [those] grounded in identity politics, there is always the danger that suffering will become competitive, a prize possession and goal in itself.[24]

Positions which take an individuated experience of suffering as their starting-point and search for localised solutions are oftenattacked but less frequentlycritiqued. ‘Special snowflake’ has become a slur for those who publicly suffer under and seek to resist a binary system, but this hateful rhetoric is devoid of an analysis of the systemic nature of gender oppression we often experience as suffering inherent to enforced gender individually.

In order to effectively critique these ‘unique position[s] of suffering’ we must first recognise that within a capitalist mode of production where all relations manifest themselves as relations of exchange, to relate to one’s gender as ‘a kind of consumerism’ is understandable, even necessary. Therefore, as liberal subjects we all consider our gender performances as important components ofself-expression. It would be unfair, then, to condemn only those whose performances are the most incongruous (and thus often suffer most) for this. The danger here, to echo Rose and C.E., is that a new social capital begins to emerge based on the ability to articulate one’s own suffering. An attempt to alleviate this suffering is often made through the search for a space of personal solace, not through outward engagement with its causes.

Amid often-reductive calls for individuated gender identities, C.E. proposes an alternative which seems to offer the promise of a radical unity. They suggest the re-drawing of binary boundaries as ‘men’ and ‘non-men’.[25] This would position the gender relation squarely as one of domination and subjection: ‘men’ are all those who enjoy gendered privilege while ‘non-men’ are all those who do not. This approach has the potential to encompass both social-constructionistand materialist understandings of gender; the bipartite class structure remains, but the increasingly redundant essentialism governing who is admitted into either class is rejected. In many respects, a delineation of gender which positions men against a united-yet-miscellaneous ‘other’ is useful – particularly in its inclusion of trans and non-binary subjects or those who are so often left out of classic materialist theory. We should be wary, though, of a discourse which completely breaks with women and men as antagonists.

A more dialectical standpoint which deals with some of the same concerns is that of Monique Wittig. Wittig considers herself a lesbian and not a woman, yet still finds the label ‘feminist’ – someone who by her definition ‘fights for women … and for the disappearance of this class’[26] – a useful one. This, she says, is in order to ‘affirm that our movement had a history and to emphasise the political link with the old movement’.[27] Today, not enough is done to maintain this ‘link’. As a lesbian, she engineered a life away from enforced heterosexuality[28] and was able to exist outside of a subjecthood shaped in relation to men. On the other hand, she was aware that even in the conscious opting-out from heterosexual society, choice may be illusory. ‘They are seen aswomen, therefore theyare women’ she says,[29] a recognition of the power of external definition.

A feminist politics which is based around the principle of identification falls short, as identification is only a tiny part of what gender is. When asked ‘do you identify as a woman?’ in an interview, writer and trans activist Shon Faye responded

Maybe. I mean I prefer I am a woman [emphasis mine]. I suppose you do identify as such at first but for the past year and a half the entire world around me has treated me as a woman – a trans woman specifically – but a woman nonetheless.[30]

Much like Wittig, Faye asserts that to be gendered is a process which occurs externally. Earlier in the interview she answers the question, ‘do you identify as queer?’ (the first in a series of questions by her bemused interviewer) by saying ‘queer is not anidentity, it is a process or idea which destabilises identity categories… That’s not identification, that’s the mere fact of my existence and what it means’. We see something of the ‘resistant queer subject’ here: identity is understood as the result of material reality upon the subject, but this identity is one which troubles a rigid binary. This is emphasised in Faye’s answer to the next question – ‘Do you identify as trans?’:

No – trans isn’t an identification, it is a description of my state and material reality in this world… it’s a shorthand to state the history of my life. I am required to state it in this society – in my ideal society trans would not exist, nor would it be important. I do not identify as trans, I am marked out as trans – it’s not my agency at play.

What Wittig and Faye teach us, then, is that identity is more often something etched onto us, rather than something we ourselves have the agency to adopt, mould or reject. Someone, for example, may not consider themselves a woman for any number of reasons, but nevertheless are violently pushed into that category whenever they are read as one. This is why Wittig continues to place herself within a genealogy ofwomen’s struggle despite not directly relating to this herself.

A politics of identity often demands that its borders be policed, and reconfigures subjection as intentional, even desired. A more revolutionary position would be a politics of experience, something like Faye’s insistence that sheis – as opposed to identifies as – a woman. Here, identification is understood as premised on the questions ‘do I experience?’ or ‘am I experiencedas?’ As such, identification is a material ontological position based on the effects of the social on the body which are themselves constantly in flux. Where asoft-abolitionist position holds that identification must bepositive and relate to some internal truth, a politics of experience recognises that to beidentified as’ might well be a violent break from an understanding of oneself. As Faye tells us, ‘in my ideal society there would be no trans’, yet still she is ‘marked out’ as such.


‘One O’Clock at Night’ and the Politics of Gender Experience

Mina Loy’s poem ‘One O’Clock at Night’[31] – the first of ‘Three Moments in Paris’ – articulates an oppressive yet porous experience of ‘womanness’ which prefigures second-wave feminist theory, ‘identity politics’ and the soft-abolitionist trend. Like Wittig, Loy discusses the possibilities of simultaneous identification and rejection, but importantly does this independently of any large feminist movement or theory.

‘One O’Clock at Night’ is narrated by a woman, late at night, in a Parisian café. At the beginning, the speaker wakes up after dozing on her male partner’s shoulder, finding him deep in intellectual debate with a friend, also a man. ‘I was understanding nothing / Sleepily’, she says. This sleepiness and lack of cognition marks her out as female – while asleep she has understood ‘nothing of man’ and was ‘[i]ndifferent to cerebral gymnastics’. However, her inert femininity is a transitory state. After a ‘beautiful half-hour of being a mere woman’ she is awake again, and catches ‘the thread of the argument / Immediately assuming [her] personal mental attitude’. Now, she says, she has ‘ceased to be a woman’. Her partner, paternalistic and apparently unaware that she is now contributing to the conversation, ends the poem by saying ‘[l]et us go home    she is tired    and wants to go to bed’. The speaker is silent.

Loy’s poem is saturated with irony but does not initially strike the reader as a feminist text. Its speaker seems to agree with her partner that women are childlike and weak, both physically (not being able to keep herself awake) and intellectually (only able to engage on the level of men when she transcends her female mind). Even though she is robbed of an externalised voice, the speaker is presented as complicit: ‘[a]nyhow    who am I that I should criticize your theories of plastic velocity’? she asks, exonerating the man who has interrupted her.

Throughout the second wave of feminism, radical and Marxist feminists were often decrying the other for taking an ‘anti-woman line’: the idea that women – under the spell of false-consciousness – are duped into submission to patriarchy. Certainly, much second-wave (and current!) feminism does conceptualise women – particularly sex workers, women in abusive relationships, stay-at-home mothers and so on – as defenceless victims who do not have the strength, intelligence or resources to improve their lot. But it is dangerous to begin conflating those who feel that women are complicit in their own oppression with those who claimthat the experience of being a woman – an experience enforced through violence and subjugation – may be at times unpleasant. Surely, if our aim is an abolitionist one, the latter assertion should be at the very heart of our feminist praxis!

The Radical Women was a socialist feminist organisation, one of the largest active in the US (and globally) throughout the 1960s. They, like many groups at the time, were tarred with the label ‘anti-woman’. Clearly, this accusation is not unfounded: they ask in their manifesto, ‘when will we ever stop loving our masters and joining our enemies?[32] This undeniably assumes women a position of culpability in their place as victims of patriarchy. However, just a few pages after posing this despairing question they charge Shulamith Firestone and The Redstockings (their prime accuser/s) of being ‘anti-woman’ themselves. In this case, it is due to their essentialist basis. ‘Radical feminists decree, contrary to Engels, that women’s oppression was an inevitable result of what they describe as our physical inferiority’, they say, going on to claim that Firestone parrots ‘Freud’s spurious “biology is destiny” dictum’: that woman’s subjugation is tied up in the expectation that she must reproduce.[33] In fact this is a misreading of Firestone, who has a materialist conception of woman-as-class, and even uses Engels to foreground her argument. In her first chapter, she asserts that her whole project is to develop Engels’s ‘beautiful’ but ‘strictly economic interpretation’ of ‘the oppression of women’ through historical materialism.[34]

What this perhaps needless mud-slinging signals, though, is just how contentious it can be to argue that living within the class ‘woman’ is something inherently negative. Wittig laments that ‘[h]aving stood up to fight for a sexless society, we now find ourselves trapped in the familiar deadlock of “woman is wonderful”’.[35] Her concern is a legitimate one; Alice Echols[36] argues that the stabilisation and enshrinement of ‘positive’ ‘female’ characteristics de-radicalised the feminist movement, and replaced it with a palatable yet ineffectual cultural feminism. While it may be fair to read Loy’s expression of femininity in ‘One O’Clock at Night’ as truly ‘anti-woman’, in mocking essentialism – a major part of the ‘New Woman’ feminism of her time – she does a lot to defend against the ‘woman is wonderful’ discourse which so easily retreats into a reformist orequal but different’ feminism.

Typical feminist essentialist arguments place women as naturally superior to men. Mary Daly provides an extensive catalogue of ‘essential womanhood’ which morphs into transphobia[37] where Valerie Solanas, in a rhetorical attack on male supremacy founded upon essentialism, argues that it is women who are in fact the stronger sex.[38] More like Firestone than Daly and Solanas, Loy presents an essential femininity which is disempowering and debilitating. However, while Firestone locates the reproductive system as the locus of female oppression and seeks a technological remedy, Loy’s essentialism is fully behavioural. Her female-bodied speaker ‘ceased to be a woman’ without needing to shape-shift, but her sleepy stupidity genders her.

In ‘The Ineffectual Marriage or The Insipid Narrative of Gina and Miovanni’,[39] a poem written around the same time, Loy mocks early twentieth-century bourgeois marriage and its requisiteseparate spheres’ essentialised gender. Here, Miovanni is ‘magnificently a man’: pompous, grandiose and preoccupied with producing material output, while Gina, ‘insignificantly a woman’, enables him through unnoticed emotional labour: ‘To man his work / To woman her love’. ‘One O’Clock at Night’ is much subtler, but also displays a tongue-in-cheek examination of gender performance.

Are we not really meant to believe that the poem’s speaker understands herself as a ‘mere woman’, ‘understanding nothing of man / But mastery’? This begs the question as to what extent we are being made privy to her inner identity-crisis, and to what extent is she articulating the two men’s reception of her, anintelligent woman’. Is Loy making a claim similar to Faye’s – that gender is not for the performer to decide, but rather her audience? She is not so much externalising her speaker’s internalised misogyny (or ‘anti-woman’ feminism) as exposing the misogyny of the ‘progressive’ men in her circle. While the woman is mute and vulnerable they are happy to read her as female, but can only accept her intellectual contribution when re-configuring her as something more like them.

In regard to the female subject of gender, essentialism is always behavioural. Interestingly, this is not the same for the male characters. When discussing the men, Loy employs a traditional, physiological essentialism. The speaker’s partner is gendered by his ‘indisputable male voice’, while his friend or ‘brother pugilist of the intellect’ has a voice which is ‘only less male’. There is a gradation of gender: the first man to speak is ‘indisputably’ male, the second ‘less male’ and the woman in a fluid state. Gender is destabilised as a fixed quantity. Its bounds are porous, and mocked as such, but they are rigid, oppressive and tangible nonetheless.

In the poem the male gaze provides a yardstick by which to measure ‘womanness’; gender is constructed in relation to. The poem begins, ‘[t]hough you had never possessed me / I had belonged to you since the beginning of time’. In Marxist ontology, ‘the beginning of time’ – or history – is the birth of capital and inception of woman (and man) as class. Loy’s opening line grounds woman as always-already ‘belonging’ to man, the female ‘I’ set up against, or in tessellation with, a pre-existing male ‘you’. This image is presented very literally, as the poem begins Loy’s speaker (currently identified as female) is being propped up by her partner (‘Leaning against your shoulder / And your careless arm across my back’). By the time she has ‘ceased to be a woman’ she has become disentangled from him, drawing physical boundaries between her body and the external herself.

'One O’Clock at Night’ expresses a private experience of ‘womanness’, witnessed only by men. This is fitting, as so much of the performance of femininity takes place in total isolation from other women. To build a sense of solidarity within a class which has been constructed through the performance of private acts – be that home-based domestic work or sexual relations with men – is a hard task. ‘Class cannot be thought of in liberal terms as merely the collective name for a group of individuals defined according to a static, economistic set of criteria’, says Judith Grant, but rather according ‘to a set of interests, and in the incentive to transform society in a certain direction’.[40] Our task now is to excavate these shared interests while refraining from homogenising those gendered as women.

Soft abolitionism assumes that the individual can permanently sever themselves from the confines of gender, optimistically ignoring the constitutive outside which compels the subject to remain gendered. Loy’s reflection of gender as rigid-yet-unstable serves as a useful challenge to this viewpoint. On one hand, the speaker has ‘ceased to be a woman’; if she does not feel like or identify as a woman, then she is not one. On the other hand, however, she is held in place by the conditions which form her: she is treated as a woman by the men who infantilise her. This complicated hinterland state might be a useful starting-point to pose an alternative to the over-identification versus total rejection dichotomy. In the poem, gender is inescapable but not irrevocably binding.


Woman as ‘Group’

Iris Marion Young offers something which could be useful in the establishment of a praxis echoing Loy’s model of porous femininity. Extrapolating from Jean-Paul Sartre’s theory of seriality, Young places her feminist subject in the category ‘woman’, but makes this a transitional necessity as a means of rendering this category obsolete. By bringing this theory into dialogue with the current moment of feminist crisis, I hope to offer a tool for bridge-building between hostile viewpoints.

Sartre’s ‘phenomenon of serial collectivity’ forms part of his Critique of Dialectical Reason (two volumes, 1960 and 1985) and divides subjects sharing common experiences into the categories ‘series’ and ‘group’. A series is a ‘less organised and unselfconscious collective unity’ which is ‘passive’ inasmuch as it is formed ‘via material effects of actions of others’.[41] Sartre gives the example of people waiting for a bus together. They find themselves in a shared position: they need to get on a particular bus, and possibly share frustration at its lateness, but are generally isolated from one another. They do not necessarily share needs, desires or a broader life-experience.

A group is born out of a series, but forms (as) ‘a self-consciously, mutually acknowledging collective with a self-conscious collective unity’ within it.[42] If the frustrated would-be bus passengers chose to band together to protest against their bus’s lateness, they would be transformed from subjects-in-series to members of a group.

Young maps this theory onto women and problems of identity within feminism. She finds that it enables those gendered as women to establish ourselves as a group or groups, but also ‘allows us to see women as a collective without … implying that all women have a common identity’.[43] Traditional ‘identity politics’ often become ossified and rigid; the proliferation of ever-finer gradations of identity, with heavily policed boundaries, is commonplace. In the series/group model though, there remains space for internal identities to remain amorphous and varied. ‘Women’, states Young, ‘is the name of a structural relation to material objects as they have been produced and organised by prior history’.[44] This is both a description of a series – something constituted via material relations to ‘practico-inert’ objects (such as the sexed body, around which reality is structured)[45]and a textbook materialist conception of gender, citing these ‘practico-inert’ forces as ‘structural relations of enforced heterosexuality and the sexual division of labour’.[46]

‘Members of a series experience themselves as powerless to alter [their] material milieu’, says Sartre.[47] In other words, a series, in its ‘collective otherness’, often relates to constraints put upon it as ‘given or natural’.[48] In a plausible explanation of ‘anti-woman’ politics, Young suggests that this is why many women blame themselves or each other for gender-based oppression, or vie for depleting services, rather than joining together to demand sufficient provision for all.

A prime example of a ‘group’, i.e. those who recognise and organise around their ‘collective otherness’, is Sisters Uncut – a ‘feminist direct-action collective’ currently campaigning around cuts to state-provided services for survivors of domestic violence. Their actions include the occupation of spaces synonymous with the oppression of women (including the visitor’s centre of the now-abandoned Holloway Prison) and using them to hold workshops and skillshares. They are also active supporters of campaigns to close Yarl’s Wood Detention Centre, which currently imprisons 410 women and children who are awaiting asylum decisions or deportation.[49]

Sisters’ praxis is based in a politics of experience, fighting for those who have been ‘marked out’ or oppressed as women, rather than a narrow politics of identity recognising only those for whom the status ‘woman’ resonates as a deep internal truth. Indeed, they state in their ‘gender inclusion policy’:

Our meetings should be inclusive and supportive spaces for all women (trans, intersex and cis), all those who experience oppression as women (including non-binary and gender non-conforming people) and all those who identify as women for the purpose of political organising. Self-definition is at the sole discretion of that sister.

Their lumping-together of ‘trans, intersex and cis’ women with ‘non-binary and gender non-conforming people’ under a label which is explicitly gendered female has been understandably condemned by some. However, it is only from under such an umbrella that a ‘group’ can form. Perhaps in the titleSister’ we move towards C.E.’s favoured men and ‘non-men’; what ‘non-men’ or Sisters share is not that theyidentify as women necessarily, but rather that they ‘have experienced oppression’ as such. In other words, those who have beenidentified as or been placed in series with women. To adopt the label ‘woman’ ‘for the purpose of political organising’ is not at all the same as to adopt it in general; here, it becomes a question ofsolidarity rather than identification.

Sisters Uncut still have some way to go, though, before they can be considered a blueprint for the ‘group’ model. The organisation came under fire for expressing hostility towards Morgan Potts, a trans man, in a meeting, apparently on the basis that he did not identify as a woman for ‘the purpose of political organising’, or any other.[50] This is at odds with their own policy which clearly states that a member must either have ‘experienced oppression as [a] wom[a]n’ – which someone assigned female at birth surely has –or ‘identify as [a] wom[a]n for the purpose of political organising’. The decision to exclude Potts also undermines the notion of a political ‘group’. If you locate unity in ‘collective otherness’ it should follow that members are able to have entirely different experiences and understandings of the common predicament, but that predicament can still remain common.

The incident points to a shift in (but not loosening of) border-policing within ‘progressive’ separatist movements. Potts’s exclusion is reminiscent of the internal policing often endemic to separatist groups. A well-documented example is that of Sandy Stone, an artist and trans woman, who was denied entry into a woman-only music co-op in the late 1970s on the grounds that she was not a ‘real woman’.[51] The exclusion of trans women from feminist spaces is still common practice, but the (mis)understanding of gender resulting in Potts’s exclusion from Sisters Uncut functions quite differently. Rather than rejecting trans women with the claim that they still have access to male privilege, the Sisters present at the meeting were effectively accusing Potts of having jumped ship.

Despite this poor execution of a sound gender-inclusion policy, Sisters Uncut demonstrate the need for the transformation of women from passive ‘series’ to diverse ‘group’. Their activism serves as a thread to hold together the oppressions and demands of a huge range of people, united in their experience of oppression as women. But even this plays out differently dependent on social class, immigration status, age, sexuality, whether or not a woman is a mother, or incarcerated, and so on.

Perhaps Sisters Uncut too could be deemed ‘anti-woman’ – its working understanding of ‘woman’ is synonymous with oppression. It is exactly this position which aligns its praxis with Young’s application of Sartre: Sisters forge a collective subject-position not directly throughidentification, but rathersolidarity. Where soft abolitionism implies a kind of voluntarism, an understanding of gender centred around a shared material predicament leaves space for both individualityand collective struggle.

Solidarity is a claim or promise which is often well-intended but empty (what does stating our ‘solidarity’ with causex reallymean?). But when meaningful support or material assistance is offered, symbolic anger and well-wishing become something transformative and politically useful. When expressed by those drawn together through ‘practico-inert objects’,[52]we’re all inthis together’ stops being a nauseating justification for the foreclosure of duty, and becomes something empowering and true. When we experience street harassment or feel particularly beholden to perform within particular codes, the constitutive outside crystallises within the individual; our commonality is inescapable. Equally, in moments of collective joy or rage we may choose to strongly identify as women. Where the various theories on positionality we might call ‘identity politics’ often imply a closing of ranks, to conceive of oneself as a group member does not necessarily require a consistent or undying loyalty.

What I have attempted here is to argue is thatwoman’ as a political identity is a temporal and fluid one, but that the experience of being gendered is not elective. I have discussed some dangers of asoft abolitionism which holds that liberation lies within an amended system of gender, one which makes space for individuation or aims to ‘mend’ language to create infinite sub-categories. Instead, the gender framework that we already exist within must be weaponised to bring about its own destruction. Communism calls for the organisation of the working class into a self-determined group in order to bring about the end of a capitalist, classed society. A useful feminism, then, is one which recognises those ‘who experience oppression as women’ as a class that must struggle together in order to abolish that oppression.

This is no easy task. A major reason that class struggle in any context so often fails is that no group shares total commonality; without a binding agent they are merely ‘in series’. Woman, like any class, is shot through with stratification. However, the woman-as-group model provides a starting-point for conceptualising a radical unity fromwhich abolition from within could be possible.

In ‘One O’Clock at Night’, the speaker recounts the period immediately before we enter the poem as a ‘[b]eautiful half-hour of being a mere woman’. As ever, there are many layers of irony underpinning this line, but to describe the state of being ‘mere’ woman as ‘beautiful’ is certainly jarring. This discordance might appear as the expression of an identity crisis, but it also encapsulates something of the complex modes of identification I have hoped to convey. We are being shown a woman stifled by the gender imposed upon her, yet she still experiences some satisfaction within it. Perhaps that ‘half-hour’ is ‘beautiful’ precisely because she knows it will soon be up.



Ask a Non-Binary, available at: <http://askanonbinary.tumblr.com/&gt;.

Bornstein, Kate 1994, Gender Outlaw: On Men, Women, and the Rest of Us, New York: Routledge.

Bornstein, Kate 1998, My Gender Workbook: How to Become a Real Man, a Real Woman, the Real You, or Something Else Entirely, New York: Routledge.

Butler, Judith 1990, Gender Trouble: Feminism and the Subversion of Identity, New York: Routledge.

C.E. 2012, ‘Undoing Sex: Against Sexual Optimism’, Lies: A Journal of Materialist Feminism, 1: 15–43.

Cornish, Megan et al. 2001 [1967],The Radical Women Manifesto: Socialist Feminist Theory, Program and Organizational Structure, Seattle: Red Letter Press.

Echols, Alice 1989, Daring to Be Bad: Radical Feminism in America, 1967–1975, Minneapolis: University of Minnesota Press.

Endnotes 2013, ‘The Logic of Gender: On the Separation of Spheres and the Process of Abjection’,Endnotes,3: 56–91, available at: <https://endnotes.org.uk/issues/3/en/endnotes-the-logic-of-gender&gt;.

Facebook Diversity 2015, post from 26 February, available at: <https://www.facebook.com/facebookdiversity/posts/774221582674346>.

Faye, Shon 2017, post from 7 June, available at: <https://www.facebook.com/shonfaye90210/&gt;.


Firestone, Shulamith 2015 [1970], The Dialectic of Sex: The Case for Feminist Revolution, London: Verso.

Gayle, Damien and Ruth McKee 2016, ‘Activists Surround Yarl’s Wood Detention Centre with Wall of Noise’,The Guardian, 10 September,available at:


Grant, Judith 2005, ‘Gender and Marx’s Radical Humanism in The Economic and Philosophic Manuscripts of 1844’, Rethinking Marxism: A Review of Economics, Culture and Society, 17, 1: 59–77.

Loy, Mina 1997, The Lost Lunar Baedeker: Poems of Mina Loy, edited by Roger L. Conover, Manchester: Carcanet.

Nelson, Maggie 2016, The Argonauts, London: Melville House.

Potts, Morgan 2016, ‘Gender Discourse: An Open Letter to Sisters Uncut’, 2 July, available at: <http://morganpotts.com/2016/gender-discourse-an-open-letter-to-sisters-…;.

Raymond, Janice G. 2006, ‘Sappho by Surgery: The Transexually Constructed Lesbian-Feminist’, in Stryker and Whittle (eds.) 2006.

Roberts, Amber 2016, ‘We Talked to the Growing Online Community ofOtherkin”: People who Identify as Non-Human’,Vice, 16 July,available at: <https://www.vice.com/en_uk/article/mvxgwa/from-dragons-to-foxes-the-oth…;.

Rose, Jacqueline 2016, ‘Who Do You Think You Are?’, London Review of Books, 38, 9: 3–13, available at: <www.lrb.co.uk/v38/n09/jacqueline-rose/who-do-you-think-you-are>.

Sartre, Jean-Paul 1991a [1960], Critique of Dialectical Reason. Volume I: Theory of Practical Ensembles, edited by Jonathan Rée, translated by Alan Sheridan-Smith, London: Verso.

Sartre, Jean-Paul 1991b [1985], Critique of Dialectical Reason. Volume II: The Intelligibility of History, edited by Arlette Elkaim-Sartre, translated by Quintin Hoare, London: Verso.

Sisters Uncut 2016, ‘Sisters Uncut: Safer Spaces Policy’, 20 November, available at: <http://www.sistersuncut.org/saferspaces/&gt;.


Somerset House 2017, ‘Trans* Manifestos: Thinking against Essentialised Binaries’, Gender, Sexuality and Violence Research Network seminar, 26 April, <https://chasegsv.wordpress.com/2017/04/07/trans-manifestos-thinking-aga…;.

Spott, Verity 2015, Trans* Manifestos, Cambridge: Shit Valley Press.

Spott, Verity 2017, ‘Pronoun Manifesto’, 5 April, available at: <https://twotornhalves.blogspot.co.uk/2017/04/pronoun-manifesto.html&gt;.

Stone, Sandy 2006, ‘The Empire Strikes Back: A Posttransexual Manifesto’, in Stryker and Whittle (eds.) 2006.

Stryker, Susan and Stephen Whittle (eds.) 2006, The Transgender Studies Reader, New York: Routledge.

Whittle, Stephen 2006, ‘Foreword’, in Stryker and Whittle (eds.) 2006.

Wittig, Monique 1992a [1981], ‘One Is Not Born a Woman’, in Wittig 1992c.

Wittig, Monique 1992b [1982], ‘The Category of Sex’, in Wittig 1992c.

Wittig, Monique 1992c, The Straight Mind and Other Essays, Boston: Beacon Press.

Yay Pronouns!, available at: <http://yaypronouns.tumblr.com/&gt;.

Young, Iris Marion 1994, ‘Gender as Seriality: Thinking about Women as a Social Collective’, Signs: Journal of Women in Culture and Society, 19, 3: 713–38.


[1] C.E. 2012.

[2] C.E. 2012, p. 26.

[3] Endnotes 2013.

[4] Endnotes 2013, p. 63.

[5] Bornstein 1994, p. 52.

[6] Bornstein 1998, p. 94.

[7] Bornstein 1998, p. 42.

[8] Available at: <http://askanonbinary.tumblr.com/&gt;.

[9] Available at: <http://yaypronouns.tumblr.com/&gt;.

[10] Roberts 2016.

[11] Spott 2017.

[12] Spott 2016.

[13] Spott 2016, p. 8.

[14] Somerset House 2017.

[15] Rose 2016.

[16] Facebook Diversity, post from 26 February 2015, available at: <https://www.facebook.com/facebookdiversity/posts/774221582674346&gt;.

[17] Bornstein 1994, p. 22.

[18] Ibid.

[19] Nelson 2016, p. 18.

[20] Whittle 2006, p. xiii.

[21] Rose 2016.

[22] Young 1994, p. 717.

[23] Ibid.

[24] Rose 2016.

[25] C.E. 2012, p. 17.

[26] Wittig 1992a, p. 14.

[27] Ibid.

[28] Wittig 1992a, p. 20.

[29] Wittig 1992a, p. 12.

[30]Faye 2017.

[31] Loy 1997, pp. 15–16.

[32] Cornish et al. 2001, p. 36.

[33] Cornish et al. 2001, p. 38.

[34] Firestone 2016, p. 5.

[35] Wittig 1992a, p. 13.

[36] Echols 1989.

[37] C.E. 2012, p. 22.

[38] C.E. 2012, p. 20.

[39] Loy 1997, p. 36.

[40] Grant 2005, p. 72.

[41] Sartre, as quoted in Young 1994, p. 725.

[42] Ibid.

[43] Young 1994, p. 714.

[44] Young 1994, p. 728.

[45] Young 1994, p. 725.

[46] Young 1994, p. 733.

[47] Sartre, as quoted in Young 1994, p. 726.

[48] Ibid.

[49] Gayle and McKee 2016.

[50] Potts 2016.

[51] Stone 2006, pp. 223–34.

[52] Young 1994, p. 725.

Feminism Against Crime Control

On Sexual Subordination and State Apologism
Koshka Duff


At the height of the Black Lives Matter movement, I had a typical interaction with a liberal. He claimed to support the protesters, at least in principle. However, he thought the police shooting of Michael Brown in Ferguson was ‘a poor choice of case’ to rally around (if only they had consulted him!). It would fail to impress ‘the public’, he claimed, because the police officer in that incident was ‘probably justified’. As evidence, he cited the media smear accusing Michael Brown of shoplifting shortly before he was gunned down. I refused to concede the shooting would have been justified even if this smear were true. Given the structural racism of the existing order of property, I argued, surely it would be a strategic dead-end to endorse police powers to attack anyone who transgressed it.[1] ‘Oh, I see’, he said, ‘so you are against the police’. Immediately he parried: ‘But suppose a man were raping a woman…’

The point of this anecdote is not simply to illustrate the ease with which the liberal mind slips from thoughts of property to thoughts of women’s bodies, but to highlight an assumption I take to be widespread, including among feminists: the struggle against sexual violence is fundamentally at odds with any deep opposition to the criminalizing state. By ‘the criminalizing state’ I mean the police, criminal courts, prisons, detention centres, surveillance apparatus, border guards, the military, and so on. Taking sexual violence seriously, it is generally assumed, means inducing the state to overcome its notorious unwillingness to ‘punish perpetrators’ and ‘protect vulnerable women’.[2] Of course, this must involve criticising existing institutions insofar as they fail – and fail systematically – to do so. However, for the struggle against sexual violence thus conceived, distrust of these institutions must be mitigated. The aim, to put it crudely, cannot be toundermine the state’s power to criminalize, but towield that power against the perpetrators of sexual violence. Bernstein calls this the project of ‘feminism-as-crime-control’.[3] Within the framework of options defined by this assumption, caring about sexual violence means side-lining concerns about state violence and the classed and racialized construction of ‘criminality’. Conversely, political strategies seeking to disrupt and challenge existing processes of criminalization appear to demand that we downplay the problem of sexual violence. It seems we must be either rape apologists or state apologists. 

This assumption is at work in both sides of the debate around ‘Governance Feminism’, or so I will argue. Governance Feminism is defined by its most prominent critic, Janet Halley, as the ‘incremental but by now quite noticeable installation of feminists and feminist ideas in actual legal-institutional power’.[4] Emphasising the punitive aspects of governance, Elizabeth Bernstein labels this ‘a carceral turn in feminist advocacy movements’.[5]From collaboration with border regimes in the drive to criminalize ‘sex trafficking’, to the ‘pink-washing’ of neoliberal gentrification (concern for the safety of women and queers being transfigured into calls for ‘the removal of race and class Others from public space’, to the delight of property developers), feminism-as-crime-control is everywhere in evidence[6]  – and, significantly for our purposes, is understood by its critics as a pernicious form of identity politics. As Wendy Brown argued over twenty years ago, this brand of feminism mobilises asocial identity defined by injury and vulnerability – the sexually violated woman – to demand coercive state action, then washes its hands of the oppressive consequences through a show of powerlessness.[7]

Governance Feminism’s most important theorist-advocate, according to both Brown and Halley, is Catharine MacKinnon. The increasingly go-to position for those critical of ‘the carceral turn’ is therefore to reject MacKinnon’s ‘radical feminist’ analysis of sexual violence (the content of which we will come to shortly).[8] Meanwhile, however, aspects of this analysis are gaining traction in philosophy departments via work on ‘hate speech’, objectification, and silencing.[9] In this context, MacKinnon’s work constitutes an important challenge to dominant liberal understandings of concepts like freedom, speech, and consent. However – and here MacKinnon’s assumed affinity with Governance Feminism again rears its head – this project of MacKinnon-mainstreaming still tends to presuppose that liberal states must ultimately be the political agents, and ‘hate speech’ legislation the political means, to put a radical feminist analysis into practice.[10] If there is a feminist revolution going on in political philosophy, critics of carceral politics are not invited.

My aim is to shake up the entrenched battle lines of these debates. One thing MacKinnon and her anti-statist critics seem to agree on, and that I want to challenge, is the close connection between: (a) endorsing a radical feminist analysis of sexual violence – what Halley dubs the ‘subordination paradigm’; and (b) endorsing the project of feminism-as-crime-control.[11] Now, I do not wish to deny that there is any such connection; my intervention is more orthogonal. I want to ask: what reasons might the radical feminist analysis of sexual violence itself give us to be suspicious of strategies that embrace the punitive state? In raising this question, I hope to show those sympathetic to MacKinnon’s analysis that they have reasonsfrom their own point of view to consider a more state-sceptical politics. Equally, though, I hope to persuade those in ‘the other camp’ not to dismiss MacKinnon’s analysis of sexual violence wholesale simply because of its association with Governance Feminism; some of its insights, I suggest, might be mobilised in another direction.

In Part I (‘Subordination’), I outline those aspects of MacKinnon’s analysis I take to be most pertinent. I will show, firstly, how she takes this analysis to justify state-power-wielding strategies, and secondly, how her critics take it to be implicated in such strategies, and therefore reject it. In Part II (‘Insubordination’), I go on to propose three ways in which the radical feminist analysis of sexual violence might support a politics more alert to the violence of criminalization, hence more antagonistic towards the punitive state.

To be clear, these are not arguments for a politics of purity, for ‘keeping our hands clean’ by never relying upon, utilizing, or engaging with the state, as if that were even possible. The state is obviously not a monolith; it is multifaceted, porous, often contradictory. Sometimes one of its branches can be fought with the aid of another of its branches, to some effect. Fighting to expand access to Legal Aid (a function of the state) can be part of fighting against women’s incarceration (another function of the state) or deportation (another function of the state), to take just one example. In fact, rejecting the quest for purity is at the heart of what I am trying to do. MacKinnon is a flawed theorist. Governance Feminism as a form of identity politics causes real harm, in which she is complicit. And yet, while the charge of state apologism levelled against MacKinnon is well-founded, securing a conviction against her, then swiftly arranging the mass deportation of her tainted ideas from our political communities, will not take us much further towards emancipation. On the contrary, I think reducing everything she has ever said and done to grim identity with her worst moments would itself exhibit the carceral logic that insists the world must be simply divisible into good and evil, allies and apologists. This logic imposes unity, sameness, unchangeability on whatever it finds. It delights in the application of labels, ungraciously lopping off aspects of reality that do not fit the preconceived scheme. Contradictions cannot be recognised. The possibility of transformation cannot be thought. Another flawed theorist called this ‘identity thinking’.[12] We might call equally call it (one kind of) identity politics. Looking for secret passageways between the hostile encampments of MacKinnon’s supporters, on the one hand, and her critics, on the other, is my attempt to get beyond denunciations and put a critique of these politics into practice. 


1  Subordination:

1.1 The con in consent

MacKinnon argues that sexual violence is the norm rather than the exception under conditions of male domination. Indeed, she argues that the very categories ‘male’ and ‘female’ are constructed through the material practices of eroticised hierarchy jointly known as ‘sexuality’:[13]

Sexuality [...] is a form of power. Gender, as socially constructed, embodies it, not the reverse. Women and men are divided by gender, made into the sexes as we know them, by the social requirement of its dominant form, heterosexuality, which institutionalizes male sexual dominance and female sexual submission. If this is true, sexuality is the linchpin of gender inequality.[14]

Women’s vulnerability to sexual violence is the result, not of some apolitical given called ‘biology’, but of a pervasive system of social power.[15] Sexual violence – the normalised use of women as objects – in turn props up that system. Rape, sexual harassment, intimate partner violence, forced reproduction,[16] ‘prostitution’,[17] and pornography consequently take centre stage in MacKinnon’s analysis of ‘male power as an ordered yet deranged whole’.[18] Sexual violence is the lens through which she views gender politics.

At the heart of MacKinnon’s account is a critique of the liberal concept of consent as it is encoded in laws which purport to prohibit rape but, in her view, merely ‘regulate’ it:

Consent is supposed to be women’s form of control over intercourse, different from but equal to the custom of male initiative. Man proposes, woman disposes. Even [in] the ideal it is not mutual. Apart from the disparate consequences of refusal, this model does not envision a situation the woman controls being placed in, or choices she frames. Yet the consequences are attributed to her as if the sexes began at arm’s length, on equal terrain, as in the contract fiction.[19]

The problem with ‘consent’, MacKinnon argues, is that it is blind to the social power relations that actually make people do things, or go along with things, or not quite managed to say no to things in a way that gets taken seriously. It does not distinguish between enthusiastic mutuality and reluctant submission in the absence of any acceptable alternative. It ignores the ways women are socialized into passivity, silenced by dominant representations,[20] and ‘kept poor, hence socially dependent on men, available for sexual or reproductive use’.[21] ‘Consent’ is routinely imputed to women simply because the thing happened and they did not stop it, never mind how they felt about it or how unequal the conditions. While taking for granted the formula ‘man fucks woman; subject verb object’,[22] the liberal notion of ‘consent’ simultaneously maintains the fantasy that we are pure choosing agents, abstracted from all material conditions and power inequalities, hence free by default. Against this, MacKinnon insists that freedom of the kind feminism should aim at is incompatible with subordination – with being an object at another’s disposal, bargaining from a position of weakness; insofar as women are subjected to these conditions, there is an important sense in which we are not free.

1.2. If the state is male how come you love it so much?

MacKinnon takes this analysis of sexual violence to ground a feminist politics that aspires to wield state power against the perpetrators: the rapists, the pornographers, the sexual harassers, the pimps, the ‘traffickers’, and so on. Yet she conceives of herself as offering a critique of the liberal state as ‘male’. This is not so puzzling, however, once we realise that her critique is directed primarily against the pretensions of existing states, and the American state in particular, to what liberals call ‘neutrality’. Her target is the view – given its most drawn-out philosophical expression in the ‘political liberalism’ of the late John Rawls – that the state respects freedom through ‘non-intervention’ in matters deemed ‘private’. Attacking the so-called ‘negative state’ advocated by political liberalism, MacKinnon exposes the linguistic manoeuver of labelling ‘intervention’ only those exercises of state power thatchallenge the existing distribution of social privileges.[23] What appears as ‘inaction’, and therefore prima facie unproblematic from a liberal perspective, is the state’s role in enforcing thestatus quo: defining and administering the institution of marriage; refusing to fund reproductive healthcare; failing to prosecute those everyday rapes that do not threaten (and indeed help constitute) the prevailing order of which men own which women and which business is to be conducted where.

This is a familiar criticism, of course, going back to Marx’s dissection of the merely ‘political emancipation’ offered by liberal rights:

The state dissolves distinctions of birth, of social rank, of education, and of occupation if it declares birth, social rank, education, occupation, to be non-political distinctions; if without consideration of these distinctions it calls on every member of the nation to be an equal participant in the national sovereignty, if it treats all elements of the actual life of the nation from the point of view of the state. Nevertheless the state allows private property, education, occupation to function and affirm their particular nature in their own way, i.e. as private property, education, and occupation. Far from superseding these factual distinctions, the state’s existence presupposes them.[24]

Marx’s argument is mirrored in more recent criticisms, articulated by Charles Mills and Michelle Alexander, of the slippery ideology of ‘color-blindness’.[25] While ostensibly anti-racist, the ideal of just ‘not seeing race’ insidiously maintains white supremacy by erasing ‘the long history of structural discrimination that has left whites with the differential resources they have today, and all of its consequent advantages in negotiating opportunity structures’.[26] Refusing to recognise this history depoliticizes existing inequalities, which can then be blamed on individual choices. Similarly, MacKinnon argues, the state which purports to be ‘gender blind’ in fact ‘protects male power through embodying and ensuring existing male control over women at every level – cushioning, qualifying, or de jure appearing to prohibit its excesses when necessary to its normalization.De jure relations stabilize de facto relations’.[27] When asked to rectify this which it has done, the liberal state cries that this would violate the principle of ‘neutrality’.

MacKinnon’s analysis of sexual violence, then, aims to disrupt the familiar strategy of pointing to women’s ‘consent’ to legitimise an oppressively gendered status quo. While she does criticise the state as ‘male’, hers is a critique of the so-called ‘negative state’ – the state which seeks to preserve its ‘neutrality’ by leaving social domination untouched, while masking and legitimising it through the formal universality of law. Having dispensed with this liberal objection to wielding the law in women’s name, and exposed the extent to which the law is already involved in the administration of patriarchal social reality (‘non-intervention’ being an ideological cover for supporting the already-powerful), MacKinnon derives the urgent need for feminists to wield state power in the battle against sexual violence.[28]

1.3. The McCarthy in MacKinnon

Halley, like MacKinnon, holds that a radical feminist analysis of sexual violence (which they call the ‘subordination paradigm’) leads to Governance Feminism, although they take this connection to undermine the former rather than vindicate the latter.[29] The connection as they see it is essentially this: MacKinnon portrays women as so thoroughly subordinated, male domination as so total, sexual violence as so pervasive and devastating, that we need the state to save us. The basic argument derives from Wendy Brown’s critique of ‘identity politics’, and of MacKinnon for engaging in them.[30] Although the ‘identity politics’ label has often been used simply to dismiss struggles for emancipation that do not place the waged white hetero cis male subject at their centre, this is not how Brown uses it. Her concern is rather with the relation a struggle stands in to the liberal-bureaucratic state. Distinctive of identity politics, on her account, is the demand, directed towards the state, for legal recognition and protection (‘rights’) for a group defined as different andinjured.[31] Brown articulates two interrelated worries about identity politics, both of which she takes to apply to MacKinnon: (1) by being written into the ‘ahistorical rhetoric of the law and the positivist rhetoric of bureaucratic discourse’, identities which are, in fact, effects of social power are naturalised, while ‘the injuries contingently constitutive of them’ are reinscribed;[32] (2) in the process, the state is empowered and legitimised, forestalling possibilities for more radical transformation.[33]       

If we look at the record of Governance Feminism, Brown’s worries seem well founded.[34] In any case, let us assume for the sake of argument that they are. The question is: in what ways, and to what extent, does a radical feminist analysis of sexual violence push us towards identity politics in this sense? Halley locates the source of Governance Feminism’s state-collaborationist tendencies in MacKinnon’s incessant focus on the sexual violation of women, accusing her of a ‘paranoid structuralism’ that denies women agency. For instance, Halley complains that:

Much contemporary feminist rape discourse repeatedly insists that the pain of rape extends into every future moment of a woman’s life; it is a note played not on a piano but on an organ.[35]

The implication is: rape is not so bad as the feminists say. Halley even encourages us to ask, ‘Why so many feminisms want women to experience themselves as completely devoid of choice when they bargain their way past a knife by having sex they really, really don’t want.’[36] The implication is: women have agency even when they are raped at knifepoint; it is not the rapists but the feminists who take their agency away.[37]

These quotations – and my pointedly crass glosses on them – of course do not capture the nuances of Halley’s position. Nonetheless, they highlight a strand in the critique of Governance Feminism that I am interested in because it reproduces the dilemma with which we began: state apologism or rape apologism.[38] Halley’s remarks, not only in content but in tone, foster the distinct impression that the critique of Governance Feminism is pursued at a price. What must be sacrificed, it seems, is the visceral commitment, which resonates throughout the writing of radical feminists like MacKinnon, to naming, theorising, and fighting against the myriad forms of sexual violence that constitute gender as we know it. To combat the state-affirming dangers of Governance Feminism, Halley seems to suggest, we need to (a)decentre ordownplay the problem of sexual violence in our analysis, and (b) regard women asmore free than the subordination paradigm suggests. These two points are clearly intertwined, since the question of whether, or to what extent, one is a victim of sexual violence is closely related to the question of whether, or to what extent, one’s sexual encounters are exercises of freedom.

As we have seen, MacKinnon takes freedom to require some measure of equality, conceived as the absence of hierarchy or domination. Halley rejects this. Indeed, they claim that MacKinnon’s formulation of freedom as incompatible with subordination is directly implicated in the ‘totalitarian trend visible in some feminist law reform proposals’.[39] Instead of freedom as (requiring) non-subordination,[40] Halley invokes the value of ‘agency’, which they illustrate with the following example.[41] Imagine a war-time situation in which an occupying army is committing atrocities against the local population. Under these circumstances, a woman might decide it is better to offer or supply under pressure sexual favours to a powerful soldier in exchange for food or protection from the sexual violence of other soldiers. In doing so she exercisesagency; she actively negotiates the power-relations in which she finds herself, shows courage and resourcefulness, and brings herself (or perhaps her family and friends) certain advantages.

On MacKinnon’s conception, this woman’s freedom is undermined because, however ingenious her survival strategies, it is still the case that she consents to, reluctantly submits to, or solicits sex in response to circumstances that are coercive; the soldier's power over the woman is the main reason that sex takes place. Halley argues that such a conception denies the woman’s agency, reducing her to a passive victim. Notice that there are two possible meanings of 'deny' in this context: firstly, one can deny that such-and-such is the case (e.g. denying that I can leave my prison cell because the door is locked); secondly, one can deny somethingto someone, that is, prevent them from having it (e.g. locking the cell door). Halley's claim is that denying women’s agency in the first sense – denyingthat women are exercising their freedom when, for example, they have sex to avoid violence they consider worse – has the consequence of denying women’s agency in the second sense – that is, preventing women from having agency.

1.4 Our deformed state

We reach a familiar dilemma. On the one hand, there is a good deal of truth to the claim that MacKinnon presents a narrative of women as powerless. Particularly when written into the machinery of governance, this narrative does, plausibly, serve to undermine women’s attempts to negotiate, resist, re-signify, or subvert, (‘overthrow’ is not in Halley’s vocabulary, but perhaps it should be) the multifarious power relations to which we are subject. It thwarts our self-recognition as active agents rather than passive victims.On the other hand, Halley’s insistence on women’s agency seems to make us responsible even when we are coerced, which can sound a lot like victim-blaming. Indeed, anyone sympathetic to the radical feminist analysis of sexual violence will perceive this notion of ‘agency’ as steering perilously close to the old liberal notion of ‘consent’. Never mind how restrictive the options, never mind the pressures of socialization, never mind the threats for non-compliance, Halley seems to say, agency is there for the taking. Ironically, the only thing that appears effectively to undermine women’s agency, on Halley’s story, is Governance Feminism denying our agency. This can’t be right.

My modest preliminary suggestion is that some daylight needs to be inserted, in our political language, between the concepts ‘passive’ and ‘victim’. We should be suspicious of how easily the two words roll off the tongue together. Why should being a victim – being wronged, oppressed, subject to injustice – imply passivity? In one sense, it is clear why: something (wrong) is being done to you. Passivity is there in the grammar. Yet ‘passivity’ in the demeaning sense means something further: it means not showing courage, not making difficult decisions, not engaging in resistance; it means not being resilient, brilliant, inventive, or worthy of admiration. Must I declare myself passive in these ways simply to say that I am or have been victimised?

To some extent, yes – but only to some extent. It is a necessary part of criticising processes of dehumanisation to claim that, in a sense, they make us less than we could be; simply to exalt the qualities we develop under such conditions would be to naturalise our deformed state – as both Halley and MacKinnon criticise ‘cultural feminism’ for doing.[42] The problem is: as the debate is currently framed, looking that state square in the face seems to entail a plea for rescue by a state no less deformed. This is the inference I want to disrupt.[43] I make no pretence thereby to solve the dilemma – anything purporting to be an abstract resolution would be glib. However, I do hope to find some movement in what has come to seem a fixed set of options. In what follows, I will sketch three ways in which radical feminism’s commitment to challenging sexual violence, and MacKinnon’s analysis in particular, might be turned (against her own Governance Feminist tendencies) towards a politics more alert to the oppressions inherent in the state’s construction of the criminal.


2. Insubordination

2.1. Institutionally rapist

You are surrounded by an armed gang. They order you to remove your clothes. If you don't do as you're told – if you don't 'consent' – then they will forcibly remove your clothes. This means that they will pin you to the ground and use painful metal implements to prevent you from being able to move your arms and legs. They will tear your clothes off, or cut them off with scissors. They may use their weapons to make you comply, or punish you for not complying. Their weapons include truncheons and tasers, and sometimes guns. They may force your body into a position where they can peer inside your 'cavities' with a torch. They may insert their fingers, or even a whole hand, inside you.

Strip searching of arrestees by police is standard practice in the UK. Between 2013 and 2015, figures from 13 police forces in England and Wales show 113,000 strip searches, including 5,000 on children aged 17. The remaining 32 forces would not provide data in response to FOI requests by the BBC.[44] In the 2 years following the official end of routine strip searching of children in state institutions in 2011, over 40,000 such searches were recorded Almost half of these were perpetrated against children of colour. Illegal items were recovered on 15 occasions.[45]

Women at Yarl’s Wood detention centre, run by private security firm SERCO on behalf of the British Border Force, have spoken out repeatedly over the past decade about widespread sexual abuse by male guards.[46] Women involved in protests against fracking have complained of ‘sexualised intimidation’ by police.[47] Prisoners can still be forced to give birth in shackles and chains.[48] Her Majesty’s Inspectorate of Constabulary has admitted that the hundreds of reported incidents of police officers using their authority to sexually coerce ‘domestic abuse victims, alcohol and drug addicts, sex workers and arrested suspects’ are probably just the tip of the iceberg, given the barriers to victims coming forward.[49] Riot police raiding suspected brothels in Soho bring journalists along to photograph the women they drag semi-naked onto the street, creating pornographic images of cowering women for distribution in the press.[50] Perhaps most explicitly of all, women who were tricked into sexual relationships with undercover police posing as left wing activists have said they feel 'raped by the state'.[51] These examples appear to show a liberal state relying on sexual violence perpetrated by its agents for the routine upholding of public order, private property, and the business of borders as usual – and that is before we even get to talking about what goes on when it wages war abroad. If there is any truth to this, then a commitment to challenging sexual violence gives us reason to distrust the state’s criminalizing power.[52]

Of course, some would deny that these are all instances of sexual violence. For instance, they might deny that strip-searching is sexual, and they might deny that it is violent – except in aberrant cases, and even then, they might say, prisoner non-compliance is generally to blame. To be clear, I do not claim that every strip search constitutes a sexual assault, but that strip searching as an institutional practicesystematically (i.e. often, and not accidentally) inflicts sexual violence on those who fall foul of the state. My suggestion is that MacKinnon’s analysis of sexual violence introduced in Part I can help us see this.

Firstly, consider the claim that a strip search cannot be a sexual assault because it is not sexual: it does not involve penises inside vaginas; if an officer has a hard-on, that is an accidental not an essential element of the process; not all officers even have penises; the motivation for strip-searching prisoners is not erotic enjoyment but the need to hunt for evidence or forbidden items. Now here is MacKinnon: 

Like heterosexuality, male supremacy’s paradigm of sex, the crime of rape centers on penetration. The law to protect women’s sexuality from forcible violation and expropriation defines that protection in male genital terms. Women do resent forced penetration. But penile invasion of the vagina may be less pivotal to women’s sexuality, pleasure or violation, than it is to male sexuality. This definitive element of rape centers upon a male-defined loss.[53]

I do not see sexuality as a transcultural container, as essential, as historically unchanging, or as Eros. I define sexuality as whatever a given society eroticizes. That is, sexual is whatever sexual means in a particular society [...] In the society we currently live in, the content I want to claim for sexuality is the gaze that constructs women as objects for male pleasure. I draw on pornography for its form and content, for the gaze that eroticizes the despised, the demeaned, the accessible, the there-to-be-used, the servile, the child-like, the passive, and the animal.[54]

If a forcible strip search exactly mirrors – in the positioning of bodies, the script (‘There’s a good girl’), the props, the backdrop – scenes from violent pornography, that social fact must be understood as both reflecting and inflecting the meaning of the event. So too must the fact that CCTV cameras have been used to record strip-searches and broadcast them on monitors for other officers to view.[55] The regularity with which prisoners are strip searched in the absence of any reasonable suspicion that they are carrying forbidden items reveals its use as a tactic of intimidation and punishment, a show of power. To even make sense, this tactic depends upon the social meaning of being stripped naked, against one’s will, before strangers, as paradigmatically humiliating; the scene is a symbol of abjection. That is not to say it can never be subverted or resisted by individuals, but that this is the social meaning that attempts at subversion must address. On MacKinnon’s account, it would not undermine this analysis to say that many – even most – individual police officers carry out strip searches without the conscious intention of inflicting sexual violence. As she emphasises, most men who rape do not think of what they are doing under that description. Rapists tend to think that what they are doing is normal – and they are right, since it happens every day. They believe they are treating their victim as it is appropriate to treat that category of person – e.g. wife, slut, criminal. They are usually right that law courts will condone their perspective.[56]

It might be objected that many strip searches are carried out without overt violence. The Home Office guidelines state that ‘reasonable efforts should be made to secure a detainee’s cooperation’.[57] On MacKinnon’s analysis, however, this is hardly decisive. She argues that:

The deeper problem is that [we] are socialized to passive receptivity; may have or perceive no alternative to acquiescence; may prefer it to the escalated risk of injury and the humiliation of a lost fight; submit to survive.[58]

Compare this with Laura Whitehorn’s recollection of her time in prison:

For me, one of the most damaging and nearly invisible forms of sexual abuse was the daily pat-searches by male guards. On a regular basis in my years in federal prisons, I was forced to stand still and allow men to touch my body in ways that would have automatically provoked me to fight back if I had been outside of prison. But as long as I was labeled with that federal prison number, such self-defense would have gotten me an assault charge adding five years to my sentence. (Repeated legal challenges have proved unable to stop this practice in federal prisons.)[59]

When women are sexually assaulted outside the walls of prisons and police stations, submitting to survive is interpreted as consent.[60] When we are sexually assaulted inside, not only is submitting to survive seen as erasing the violence of the encounter, but not being submissive enough provides legal grounds for an escalation of force.

Not resisting means that what happens does not count as violence; resisting means asking for it.

2.2. Property is rape

Vulnerability to sexual violence, MacKinnon emphasises, is not a ‘natural’ feature of women, but a product of unjust circumstances, such as not being able to leave an abusive partner or stand up to an abusive boss because you are economically dependent on him.[61] Indeed, on MacKinnon’s account, coercive circumstances can render a sexual encounter violent, even if no blows are struck. Coercion is a matter of counterfactuals. It is a matter of knowing what would happen if you were to defy an order, or decline an ‘invitation’: if I were to fight back, he would beat me up; if I were to refuse him, he would fire me; if I were to leave him, I would be homeless, my children would be taken into care, I would be deported, and so on.

In her critique of liberal ‘neutrality’, MacKinnon points to the state’s role in upholding coercive circumstances, for instance through divorce laws which systematically disadvantage women by devaluing the contribution of domestic and caring labour to the household economy. However, there is a more basic point that she repeatedly overlooks: all economic power, including that of men over women, depends upon the enforcement of property. That enforcement is carried out, in the final analysis, by the criminalizing state. The liberal state’s enforcement of property, through violence or the threat of violence, is therefore partly constitutive of male domination. Let me put this less abstractly. In 2015, theft offences accounted for 49% of all prison sentences handed out to women in England and Wales. 46% of women in prison report having suffered domestic violence.[62] These are only the cases where the state’s threat is carried out. The counterfactual, though, inflects every decision. If I were to refuse him, I would have no money for food, or nappies for my children; if I were to take food or nappies without paying for them, I would risk arrest and imprisonment.

Of course, for liberals, this is still the ‘negative state’, because it is definitive of liberalism to take the property-enforcing function of the state for granted. MacKinnon insists that the state maintains male domination even in its negative mode because ‘men’s forms of dominance over women have been accomplished socially as well as economically, prior to the operation of law, without express state acts, often in intimate contexts, as everyday life’.[63] The problem is, this still grants too much weight to the liberal misnomer ‘negative’. Economic domination does not occur ‘prior to the operation of law’. Locking women up for shoplifting or for handling stolen goods is an operation of law, albeit an everyday one, upon which the operation of the economy depends. Neglecting the way women are kept in line bythe state’s activity of criminalizing transgressions of the order of property allows MacKinnon’s critique of the negative state to slide into advocacy of a ‘positive’ or ‘interventionist’ state.

This slippage may be party explained by a blind-spot in MacKinnon’s understanding of the historically available options for thinking about the state. In defending her own ‘positive state’ solution to the strategic question, she positions herself against two alternative accounts. The first is the liberal account already considered. The second, which she calls ‘Marxist’, is an account of the state as ‘superstructural’, hence (on MacKinnon’s vulgar reading) ‘epiphenomenal’ – which means that it does not make a difference to anything. As she puts it:

The liberal view that law is society’s text, its rational mind, expresses the male view in the normative mode; the traditional left view that the state, and with it the law, is superstructural or epiphenomenal, expresses it in the empirical mode. A feminist jurisprudence, stigmatized as particularized and protectionist in male eyes of both traditions, is accountable to women’s concrete conditions and to changing them.[64]

Even leaving aside from the problems with this as a reading of Marx, what MacKinnon erases here is the possibility that the state is actually effective as an oppressive force. This erasure serves to naturalise women’s oppression by obscuring a key means by which it is – artificially – maintained. Yet, I have argued, MacKinnon’s own account of coercive conditions makes clear how vulnerability to sexual violence can be generated by the enforcement of a system of property relations in which women systematically lose out. The slide into Governance Feminism might be halted if she followed through on this insight.

2.3. Free as a bird

According to Halley, MacKinnon’s critique of consent, which corresponds to her account of freedom as (requiring) non-subordination, results directly in a statism that disregards and even impedes women’s agency. In this final section, I want to suggest that MacKinnon’s trenchant excavation of the myriad ways in which a context of subordination renders our choices unfree can in fact be seen to undermine the liberal state’s account of its own legitimacy.

The point can be put quite schematically. Liberalism means liberal capitalism; the liberal state maintains a capitalist economy. Capitalism is based on wage-labour, that is, the sale of labour power as a commodity. I sell my labour power to someone else, who (if all goes well) exploits me to make a profit. The reason I sell them my labour power is because otherwise I don't have any way of living, or certainly of living decently (a core function of the state being to prevent me from using things I cannot pay for). The reason I sell my labour power to them, and not vice versa, is because of a crucial disparity between us: they own the means of make useful things, things to satisfy human wants and needs, while I do not. I therefore contract – ‘consent’ – to be exploited by them, my other option being to starve on the streets.[65] This is, of course, the ‘double freedom’ to which Marx satirically refers:

[The free worker] must be free in the double sense, that as a free individual he can dispose of his labour-power as his own commodity, and that on the other hand he has no other commodity for sale, i.e. he is rid of them, he is free of all the objects needed for the realisation [Verwirklichung] of his labour-power.[66]

Now, it is crucial for liberalism that the labour contract remain valid, and that I count as free when I ‘consent’ to it. No matter how much any particular liberal might want to regulate markets, or support state redistribution, they cannot give up on this, otherwise they would be giving up on the claim that we could, in principle, reach an acceptable level of freedom under capital. Then they would no longer be a liberal in the relevant sense (although they might be holding to the more emancipatorystrands of liberalism’s contradictory inheritance).[67] Maintaining the validity of the wage labour contract, however, depends precisely on ignoring those material and ideological constraints on freedom exposed by MacKinnon’s critique of the patriarchal concept of consent. The basic power imbalance between me and my would-be boss (constituted by our owning and not owning means of production, respectively, and my subsequent dependence on him for survival) would be enough, on her account, to vitiate much of the normative force of my reluctant submission. That's before we even start talking about ideology and social construction, about the ways in which productive, compliant capitalist subjects are moulded.

In fact, it is unsurprising that MacKinnon’s conception of freedom should undermine the validity of the capitalist labour contract, since she deliberately invokes the Marxist critique of liberal freedom to make what is often seen as her most controversial point:

Most people see sexuality as individual biological and voluntary; that is, they see it in terms of the politically and formally liberal myth structure. If you applied such an analysis to the issue of work [...] would you agree, as people say about heterosexuality, that a worker chooses to work? Does a worker even meaningfully choose his or her specific line or place of work? If working conditions improve, would you call that worker not oppressed? If you have a comparatively good or easy or satisfying or well-paying work, if you like your work, or have a good day at work, does that mean, from a marxist perspective, your work is not exploited? Those who think that one chooses heterosexuality under conditions that make it compulsory should either explain why it is not compulsory or explain why the word choice can be meaningful here.[68]

It is ironic that MacKinnon’s analysis should so often be taken to support the view that sex workers are uniquely unfree and need to be rescued by the very state which enforces the property relations constitutive of all workers’ unfreedom. It will hardly suffice to respond that we ‘consent’ to the government which enforces these conditions, as social contract theory seeks to do. Given the massive power imbalance, the pressures of socialization, and the threats for non-compliance, MacKinnon might say, ‘the issue is less whether there was force than whether consent is a meaningful concept’.[69]



By refusing the demand to pick a side when the construction of sides is itself part of the trap, hoping instead to fracture the received framework of options and allegiances, this intervention into the Governance Feminism debate has been an experiment inimpure thinking. It reflects my conviction that such thinking is required if we are to escape the identitarian fly-bottle in whose distorting walls each person’s reflection appears asone unchanging essence: either ally or apologist.[70] It will have been successful insofar as I have convinced some radical feminists to listen to critics of carceral politics rather than dismissing them as rape apologists, and some critics of carceral politics to listen to radical feminists rather than dismissing them as state apologists – even though both accusations contain elements of truth. Precisely because everyone is guilty of something, the prosecutorial mode of engagement will not get us very far.

Questioning the presuppositions of the debate’s usual set-piece, I have argued that taking sexual violence seriously, as per the radical feminist analysis, need not entail support for state-power-wielding strategies. On the contrary, following through that analysis shows real existing liberal states in a pretty dim light. The punitive state emerges as not merely an inadequate protector, but as itself a perpetrator – perhaps the biggest single perpetrator – of sexual violence. An advocate of Governance Feminism might say that this simply adds ammunition to MacKinnon’s critique of the state as ‘male’.  Rather than telling against Governance Feminism, they might say, it shows the urgent need to reform the liberal state ‘from within’. Of course, there is no simple dichotomy between within and without. To target our efforts at tempering or counter-balancing the abjectifying powers of police, border, and prison officials would already be a significant and welcome departure from the trajectory of feminism-as-crime-control, even while we might work in part through legal channels. I have suggested, though, that MacKinnon’s account of ‘coercive circumstances’, considered in relation to the capitalist order of (exploitative) work and (vastly unequal) property, gives us cause to be sceptical about the liberal state’s capacity for positive transformation. That does not vitiate all strategies that work ‘with’ or ‘within’ the state. They may create vital breathing space for more radical alternatives. It does require, though, that we be clear-sighted about their limitations.

This point is very different from the standard liberal objection to ‘state intervention’. That objection points to the 'coerciveness' of the state as a reason against using the law to fight oppression, and criticises proposed feminist and anti-racist reforms as dangerous and 'totalitarian'. The liberal concern about the state’s 'coerciveness', however, emerges only when the state goes beyond those basic functions I described earlier. As we have seen, liberals tend not to think of the state as acting or interveningat all when it maintains existing property and power relations.My concerns about the institutionally rapist character of existing states, on the other hand – which I have suggested MacKinnon’s analysis of sexual violence itself gives us reason to take seriously – do not apply only or even primarily to proposed feminist departures from what passes for ‘state neutrality’ (though they point towards ways these efforts may, if we are not careful, be counter-productive). Rather, they suggest that challenging domination for all those subordinated by gender, not just a white, affluent, and obedient few, will require us to direct our critical attentions at precisely the criminalizing activities of liberal states which constitute business as usual. They suggest, in other words, that we need to make feminism ungovernable.



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Smith, Molly. ‘Soho Police Raids Show Why Sex Workers Live in Fear of Being “Rescued”’. The Guardian, 11 December 2013. https://www.theguardian.com/commentisfree/2013/dec/11/soho-police-raids-sex-workers-fear-trafficking.

Sudbury, Julia, ed. Global Lockdown: Race, Gender and the Prison-Industrial Complex. New York: Routledge, 2005.

Sunstein, Cass. ‘Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy)’. Columbia Law Review 92, no. 1 (1992): 1–52.

Taylor, Diane. ‘Dossier Calling for Yarl’s Wood Closure Chronicles Decades of Abuse Complaints’. The Guardian, 15 June 2015. https://www.theguardian.com/uk-news/2015/jun/15/yarls-wood-report-calling-for-closure-decade-abuse-complaints.

Threadcraft, Shatema. ‘Intimate Injustice, Political Obligation, and the Dark Ghetto’. Signs 39, no. 3 (2014): 735–60.

Ticktin, Miriam. ‘Sexual Violence as the Language of Border Control: Where French Feminist and Anti-Immigrant Rhetoric Meet’. Signs: Journal of Women in Culture and Society 33, no. 4 (2008): 863–89.

Wang, Jackie. ‘Against Innocence: Race, Gender, and the Politics of Safety’. Lies: A Journal of Materialism Feminism 1 (2012).

Willow, Carolyne. ‘Many Thousands of Children Stripped Naked in Custody. Ignites Memories of Being Raped.’ Open Democracy, 4 March 2013. https://www.opendemocracy.net/shinealight/carolyne-willow/many-thousands-of-children-stripped-naked-in-custody-ignites-memories-of.

Young, Iris Marion. ‘Gender as Seriality: Thinking about Women as a Social Collective’. Signs 19, no. 3 (1994): 713–38.

———. Justice and the Politics of Difference. Princeton, NJ: Princeton University Press, 1990.

Various. ‘Community Accountability: Emerging Movements to Transform Violence’. A Special Issue of Social Justice: A Journal of Crime, Conflict & World Order 37, no. 4 (2012 2011).



* The author would like to thank the following for formative conversations and comments on earlier drafts: Dara Bascara, Camille Barbagallo, Lucy Beynon, Melanie Brazzell, Anja Büchele, Debaleena Dasgupta, Gloria Dawson, Marijam Didžgalvytė, Lorna Finlayson, Miranda Glossop, Matthew Hall, Maham Hashmi, Amelia Horgan, Becka Hudson, Shruti Iyer, Katharine Jenkins, Lisa Jeschke, Louise Lambe, Helen Lynch, Liz Maxwell, Rowan Milligan, Kate Paul, Ambar Sethi, Laurel Uziell, Rosalind Worsdale, and several anonymous reviewers at this journal.

[1] Jackie Wang argues powerfully against making solidarity conditional on ‘innocence’, as defined by existing institutions under conditions of injustice. See ‘Against Innocence: Race, Gender, and the Politics of Safety’, Lies: A Journal of Materialism Feminism 1 (2012).

[2] This is a simplification in several ways. Firstly, there in not just one state – ‘the state’ – but many. My concern is primarily with the states of Western Europe and their former settler colonies (so-called ‘liberal democracies’) while recognising that the operations of these states often are intertwined with, and depend economically upon, those of other kinds of states, such as China and Saudi Arabia. Secondly, this is a simplification because it ignores the question of how international law and paralegal institutions such as NGOs, which often operate internationally, relate to processes of state power. Nonetheless, my point is that mainstream discourse assumes that the struggle against sexual violence must rely upon the punitive – i.e. criminalizing, sanctioning, punishing – functions of existing liberal states and their satellites or proxies. When I speak of ‘state-power-wielding strategies’, I mean punitive state power. Of course, separating punitive from other state functions, such as resource provision – insofar as that is made conditional on compliance is no simple matter. On this, seeShatema Threadcraft, ‘Intimate Injustice, Political Obligation, and the Dark Ghetto’, Signs 39, no. 3 (2014): 735–60.

[3]Elizabeth Bernstein, ‘Carceral Politics as Gender Justice? The “Traffic in Women” and Neoliberal Circuits of Crime, Sex, and Rights’, Theory and Society 41, no. 3 (2012): 251. This is not to say that feminists have always accepted this brief. For accounts of some alternative responses to sexual violence, including ‘community accountability’ and ‘transformative justice’ projects, see: Ching-In Chen, Jai Dulani, and Piepzna-Samarasinha Leah Lakshmi, eds., The Revolution Starts at Home: Confronting Intimate Violence Within Activist Communities (Brooklyn, NY; Boston, MA: South End Press, 2011); Various, ‘Community Accountability: Emerging Movements to Transform Violence’,A Special Issue of Social Justice: A Journal of Crime, Conflict & World Order 37, no. 4 (2012 2011).

[4]Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, NJ: Princeton University Press, 2006), 340.

[5]Bernstein, ‘Carceral Politics as Gender Justice?’, 251. While recognising that they are not exactly equivalent, I will be using the terms ‘Governance Feminism’, ‘carceral feminism’, and ‘feminism-as-crime-control’ largely interchangeably.

[6]Bernstein, 249. See also: Laura Agustin, Sex at the Margins: Migration, Labour Markets and the Rescue Industry (London: Zed Books, 2007); Christina Hanhardt,Safe Space: Gay Neighbourhood History and the Politics of Violence (New York: Duke University Press, 2014); Sarah Lamble, ‘Queer Necropolitics and the Expanding Carceral State: Interrogating Sexual Investments in Punishment’,Law and Critique 24, no. 3 (2013); Miriam Ticktin, ‘Sexual Violence as the Language of Border Control: Where French Feminist and Anti-Immigrant Rhetoric Meet’,Signs: Journal of Women in Culture and Society 33, no. 4 (2008): 863–89.

[7]Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, NJ: Princeton University Press, 1995).

[8] MacKinnon does not call herself a ‘radical feminist’, preferring to call her approach ‘feminism’ simpliciter, or ‘feminism unmodified’. See Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987). However, she is referred to in this way often enough for the label to be of some use. For helpful discussion of controversy around the term see ‘Faces and Facades’, in Lorna Finlayson, Introduction to Feminism (Cambridge: Cambridge University Press, 2016), 82–100. Of course, radical feminism is known for its tendency to exclude of trans women and sex workers. I will touch on these exclusions insofar as they relate to problems of criminalisation and agency, but clearly there is much more to be said. The partial and critical re-appropriation of MacKinnon I propose should not be taken to imply any endorsement of trans or sex worker exclusionary positions. 

[9] See Rae Langton, Sexual Solipsism: Philosophical Essays on Pornography and Objectification (Oxford: Oxford University Press, 2009).

[10] For critical discussion of this trend, see Lorna Finlayson, ‘How to Screw Things with Words: Feminism Unrealized’, in The Political Is Political: Conformity and the Illusion of Dissent in Contemporary Political Philosophy (London: Rowman & Littlefield International, 2015), 89–111.

[11] Particularly in her earlier work, MacKinnon was keen to emphasise the difference between ‘empowering the state, as criminal law does’ (and as she, at the time of the notorious Minneapolis Ordinance against pornography, in fact opposed), and civil law remedies, which she hoped might ‘put more power in the hands of women both to confront the state [...] and to directly confront men in society who harm them’ (Are Women Human? And Other International Dialogues (Cambridge, MA: Belknap Press of Harvard University Press, 2007), 33. How seriously she took this proviso is questionable. In more recent decades, she has focused her interventions on international legal institutions. Her associations with both US and Israeli state forces are traced in Lorna Finlayson’s review (‘Butterfly Torture’, London Review of Books, forthcoming) of MacKinnon’s latest collection, Butterfly Politics (Cambridge, MA: Belknap Press of Harvard University Press, 2017).

[12]Theodor W. Adorno, Negative Dialectics, trans. E. B. Ashton (London: Routledge & Kegan Paul, 1973).

[13] This claim is far from unique to MacKinnon. Cf. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (London: Routledge, 1990); Monique Wittig,The Straight Mind and Other Essays (London: Harvester Wheatsheaf, 1992); Michel Foucault,The History of Sexuality, Vol. 1: An Introduction (Vintage, 1990).

[14]Catharine MacKinnon, Toward a Feminist Theory of the State, 2nd ed. (Cambridge, MA: Harvard University Press, 1991), 113.

[15] One issue is important to flag at the outset. MacKinnon speaks primarily of women being harmed by sexual violence. Insofar as I will be adopting her language, ‘women’ should be understood as including all trans and cis women. However, there is still a danger of erasing many people who are systematically targeted for sexual violence precisely because they do not conform to the categories of binary gender, or because they were assigned female at birth. Given the role MacKinnon attributes to sexual violence in constructing and policing gender categories, she should be attentive to this problem, but her relentlessly binary language can rightly be criticised for perpetuating it. On the other hand, I do not think we can do away with ‘woman’ as a political category while gender persists as a system of oppression. I find helpful Iris Marion Young’s concept of ‘gender as seriality’, and Katharine Jenkins’s distinction between ‘gender as class’ and ‘gender as identity’. See:Iris Marion Young, ‘Gender as Seriality: Thinking about Women as a Social Collective’, Signs 19, no. 3 (1994): 713–38; Katharine Jenkins, ‘Amelioration and Inclusion: Gender Identity and the Concept of Woman’,Ethics 126, no. 2 (2016): 394–421.

[16] In an over-sight typical of white feminism, she spends less time talking about forced sterilization. Cf. Angela Davis, ‘Racism, Birth Control and Reproductive Rights’, in Women, Race & Class (London: The Women’s Press, 1981), 202–21. 

[17] This is the term MacKinnon uses for sex work.  

[18]MacKinnon, Toward a Feminist Theory of the State, xi.

[19]MacKinnon, 175.

[20] This aspect of MacKinnon’s argument has been persuasively developed by Rae Langton. See Sexual Solipsism: Philosophical Essays on Pornography and Objectification.

[21]MacKinnon, Toward a Feminist Theory of the State, 168.

[22]MacKinnon, 124.

[23] This point is also made in: Cass Sunstein, ‘Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy)’, Columbia Law Review 92, no. 1 (1992): 1–52; Iris Marion Young,Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).

[24]Karl Marx, ‘On the Jewish Question’, in Early Political Writings, ed. Joseph J. O’Malley (Cambridge: Cambridge University Press, 1994), 35.

[25]Charles Mills, ‘White Ignorance’, in Race and Epistemologies of Ignorance, ed. Shannon Sullivan and Nancy Tuana (New York: SUNY Press, 2007), 11–38; Michelle Alexander,The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2011).

[26]Mills, ‘White Ignorance’, 28.

[27]MacKinnon, Toward a Feminist Theory of the State, 167.

[28] She also briefly considers what she (spuriously) takes to be the leftist alternative: epiphenomenalism – i.e. the view that the state is a causally inert by-product of an ‘economic base’. I will come to this in section 2.2.

[29] Halley does allow that ‘governance feminism has been, in manifold ways, a good thing’ (Split Decisions: How and Why to Take a Break from Feminism, 33.

[30]Brown, States of Injury.

[31] A group engaged in ‘identity politics’ in Brown’s sense might be white, waged, etc. - as with the ‘blue Labour’ identity politics of ‘British jobs for British workers’.

[32]Brown, States of Injury, 28.

[33] MacKinnon is not unaware of these dangers. For instance, she criticises various legal protections for women workers on these grounds: ‘Concretely, it is unclear whether these special protections, as they came to be called, helped or hurt women. These cases did do something for some workers (female) concretely; they also demeaned all women ideologically. They did assume that women were marginal and second-class members of the workforce; they probably contributed to keeping women marginal and second-class workers by keeping some women from competing with men at the male standard of exploitation.’ (MacKinnon, Toward a Feminist Theory of the State, 165.) However, Brown and Halley argue that her own approach inadvertently replicates this problem.

[34] As well as works cited already, see Julia Sudbury, ed., Global Lockdown: Race, Gender and the Prison-Industrial Complex (New York: Routledge, 2005).

[35]Halley, Split Decisions: How and Why to Take a Break from Feminism, 354.

[36]Halley, 355.

[37] The context is a case in which the woman describes herself as having been raped. Halley offers a creative re-reading. Therefore, it is not that Halley is more committed than MacKinnon to respecting a woman’s description of her own experience. Both, in fact, are attentive to the ways that existing social narratives and legal institutions may influence our self-presentation and even self-understanding. 

[38] Halley is not the only critic of Governance Feminism to treat her opponent’s concerns – and even experiences – with a certain callousness. For instance, Bernstein reports an anti-prostitution activist, Chyng Sun, making the (surely correct) point that commercial sex and pornography also affect women not working in the industry by setting standards for ‘how all women “should look, sound, and behave”’, and another author, Kristen Anderberg, ‘describing how watching pornographic videos with her male lover lead to debilitating body issues and to plummeting self esteem’. Bernstein diagnoses these women as, essentially, jealous frumps ‘harbour[ing] a set of investments in “family values” and home’, and threated by a ‘recreational’ sexual ethic. (Bernstein, ‘Carceral Politics as Gender Justice?’, 245.)

[39]Halley, Split Decisions: How and Why to Take a Break from Feminism, 125.

[40] MacKinnon is clear that non-subordination is a necessary condition for freedom, but not committed to the claim that it is sufficient. Freedom and non-subordination are not presented as equivalent. 

[41] Halley takes the example from the anonymous memoir, A Woman in Berlin. SeeJanet Halley, ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict’, Melbourne Journal of International Law 9, no. 1 (2008): 78–124.

[42] Cultural feminism, in Halley’s words, emphasises ‘unjust male derogation of women’s traits’, and ‘reserve[s] a special place for the redemptive normative insights that women derive from their sexuality and their role as mothers’. Halley, Split Decisions: How and Why to Take a Break from Feminism, 27–28.

[43] William Clare Roberts makes a parallel point in his exposition of Capital Volume 1, in response to the objection that Marx denies agency to proletarians: ‘The significance of [Marx’s] comments about individuals in modern commercial society being bearers of economic relations is not that these individuals suffer an impairment of their agency, but that they suffer an impairment of theirfreedom. Commodity producers in a commercial society aredominated agents, not nonagents [...] If domination leaves freedom intact, then there is no such thing as domination [...] Marx does not argue that economic relations manipulate individuals like puppets, but that economic relations dominate their decision making.’ (William Clare Roberts, Marx’s Inferno: The Political Theory of Capital (New York: Princeton University Press, 2016), 95.)

[44]Adrian Goldberg, ‘The Girl Who Was Strip-Searched Aged 12 by Police’, BBC News, 30 October 2016, http://www.bbc.co.uk/news/uk-37801760.

[45]Carolyne Willow, ‘Many Thousands of Children Stripped Naked in Custody. Ignites Memories of Being Raped.’, Open Democracy, 4 March 2013, https://www.opendemocracy.net/shinealight/carolyne-willow/many-thousand…. The same report notes that many searches go unrecorded.

[46]Diane Taylor, ‘Dossier Calling for Yarl’s Wood Closure Chronicles Decades of Abuse Complaints’, The Guardian, 15 June 2015, https://www.theguardian.com/uk-news/2015/jun/15/yarls-wood-report-calli….

[47]Damien Gayle, ‘Police “Used Sexualised Violence against Fracking Protesters”’, The Guardian, 23 February 2016, https://www.theguardian.com/uk-news/2016/feb/23/fracking-police-sexuali….

[48]Stephen Ginn, ‘Women Prisoners’, BMJ 346:e8318 (January 2013),https://doi.org/10.1136/bmj.e8318.

[49]Jamie Grierson, ‘Hundreds of Police in England and Wales Accused of Sexual Abuse’, The Guardian, 8 December 2016, https://www.theguardian.com/uk-news/2016/dec/08/hundreds-police-officer….

[50]Molly Smith, ‘Soho Police Raids Show Why Sex Workers Live in Fear of Being “Rescued”’, The Guardian, 11 December 2013, https://www.theguardian.com/commentisfree/2013/dec/11/soho-police-raids….

[51]Sorcha Pollak, ‘Trauma of Spy’s Girlfriend: “Like Being Raped by the State”’, The Guardian, 24 June 2013, https://www.theguardian.com/uk/2013/jun/24/undercover-police-spy-girlfr….

[52] I focus on the British context partly because it is the state with which I am most familiar, and partly to pre-empt the complacent ‘Things are different here!’ response so often given to US examples. For examination of the US context, see ‘Police Sexual Violence’ in Koshka Duff, ‘The Criminal Is Political: Policing Politics in Real Existing Liberalism’, Journal of the American Philosophical Association 4, no. forthcoming (2018). and ‘How Gender Structures the Prison System’ in Angela Davis, Are Prisons Obsolete? (New York: Seven Stories, 2003). For international examples, see Sudbury, Global Lockdown: Race, Gender and the Prison-Industrial Complex.

[53]MacKinnon, Toward a Feminist Theory of the State, 172.

[54]MacKinnon, Feminism Unmodified, 53–54.

[55]Clare Sambrook, ‘Strip-Searched in Derbyshire’, Open Democracy, 1 October 2013, https://www.opendemocracy.net/ourkingdom/clare-sambrook/strip-searched-….

[56] There are occasional prosecutions of police officers for other forms of sexual abuse. We might map this onto MacKinnon’s argument that sexual violence, although not in practice prohibited, is regulated just enough to uphold the social order’s appearance of legitimacy. To the best of my knowledge, there have been no prosecutions for strip searching.

[57]Goldberg, ‘Strip-Searched Aged 12’.

[58]MacKinnon, Toward a Feminist Theory of the State, 177.

[59]Victoria Law, Resistance Behind Bars: The Struggles of Incarcerated Women, 2nd Edition (Oakland, CA: PM Press, 2012), vi.

[60] Women may also be criminalized for defying the demands of femininity by putting up resistance – women of colour being disproportionately targeted in this way. Cases that have received some publicity include Sarah Reed, who died while on remand in HMP Holloway awaiting trial for defending herself against sexual assault, and Ce Ce McDonald, imprisoned for defending herself against a transphobic attack. See: Amelia Gentleman and Damien Gayle, ‘Sarah Reed’s Mother: My Daughter Was Failed by Many and I Was Ignored’, The Guardian, 17 February 2016, https://www.theguardian.com/society/2016/feb/17/sarah-reeds-mother-deat…; Parker Marie Molloy, ‘CeCe McDonald: Rebuilding Her Life after 19 Months in Prison’, Advocate, 3 March 2014,https://www.advocate.com/politics/transgender/2014/03/03/cece-mcdonald-….

[61] There is an important Marxist-feminist literature theorising gendered economic dependence and struggles against it, as well as the relations of these to various facets of the state. The analysis presented here has been informed especially by the following: Sylvia Federici, Revolution at Point Zero: Housework, Reproduction, and Feminist Struggle (Oakland, CA: PM Press, 2012); Camille Barbagallo, ‘Leaving Home: Slavery and the Politics of Reproduction’, Viewpoint Magazine, 31 October 2015,https://www.viewpointmag.com/2015/10/31/leaving-home-slavery-and-the-po…; Mariarosa Dalla Costa,Women and the Subversion of the Community: A Mariarosa Dalla Costa Reader, ed. Camille Barbagallo (Oakland, CA: AK Press, Forthcoming).

[62]Clinks, ‘Key Facts’, Registered charity, Women’s Breakout: Chances to Change, 2017, http://womensbreakout.org.uk/about-womens-breakout/key-facts/.

[63]MacKinnon, Toward a Feminist Theory of the State, 161.

[64]MacKinnon, 249.

[65] Or to become a very good thief.

[66]Karl Marx, Capital: A Critique of Political Economy, trans. Ben Fowkes, vol. 1 (London: Penguin, 1976), 272–73.

[67] As I explain in {Citation}

[68]MacKinnon, Feminism Unmodified, 61.

[69]MacKinnon, Toward a Feminist Theory of the State, 178. I do not suggest that this would be the end of the debate. My point is that MacKinnon’s analysis of gendered subordination should push us to raise this question.

[70] ‘What is your aim in philosophy? To shew the fly the way out of the fly-bottle.’ Wittgenstein, Philosophical Investigations, §309.