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Vulnerability, sexual violence and the law

A conceptual analysis
Ana Lúcia Costa

Abstracts

This article examines the concept of vulnerability and is envisioned as a reply to the work of Susanna Pozzolo. Although agreeing with the author on the usefulness of vulnerability as a heuristic instrument to make visible the flaws on the laws on sexual violence, I differ from her in rejecting to consider the body as a source of women’s vulnerability to sexual violence and in considering the non-mutually exclusive relation between vulnerability and autonomy relevant in what regards sexual violence. I further discuss the polysemic nature of vulnerability and the difficulties with the use of the concept in cases of sexual violence, which arise from that nature. I finish with a note of hope by considering the feminist political struggle over the meaning of vulnerability.

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1 Introduction

  • 1 Bergoffen 2003, 2009, 2011; Code 2009, Gilson 2016.
  • 2 Pozzolo 2020: 16.

1Echoing calls for the use of vulnerability as an epistemological framework for understanding sexual violence against women,1 Susanna Pozzolo defends the idea of vulnerability as a useful heuristic instrument for its capacity to make visible the flaws in the laws on sexual violence.2

  • 3 Pozzolo 2020: 2, 9, 11.
  • 4 Pozzolo 2020: 2.
  • 5 As expressly stated, Pozzolo bases her proposal in Catriona Mackenzie’s classification of the sourc (...)
  • 6 Pozzolo 2020: 14, own translation.
  • 7 Pozzolo 2020: 5.

2Such a position, however, does not underestimate the difficulties arising from the use of this concept. Pozzolo rightly notes the discriminatory effects and paternalistic measures usually associated with it.3 The solution proposed is twofold.4 On the one hand, the author advocates an understanding of vulnerability contextually rather than corporeally.5 In her view, in determining if someone is vulnerable, one should look at “the (cultural and/or legal) context” in virtue of which vulnerability arises, “instead of looking for something ‘weak’ in the person herself.”6 On the other side, Pozzolo highlights the importance of understanding vulnerability and autonomy not as mutually exclusive but rather as terms whose oppositional relationship is a matter of degree: although it is true that the more vulnerable someone is the less autonomy and freedom of choice she has, the mere presence of vulnerability does not determine the total absence of autonomy and vice versa.7

  • 8 Pozzolo 2020: 3, 6, 9.

3Reading Pozzolo together with Catriona Mackenzie’s work on vulnerability and relational autonomy (which Pozzolo expressly refers to8), I interpret the reasoning behind her twofold proposal as follows. First, in addition to a more accurate description of the reality of (gender) oppression, the concept of vulnerability is aimed at capturing and disconnecting the source of vulnerability from the vulnerable person and locating it at the level of context, society, and institutions, offering a suitable solution for the discriminatory effects vulnerability often gives rise to. Second, understanding vulnerability and autonomy not as mutually exclusive is aimed at avoiding paternalistic measures that assume vulnerable people’s incapacity to give true consent and protect their own interests in virtue of their lack of autonomy.

  • 9 Pozzolo 2020: 16, own translation.

4Whereas I agree with Pozzolo’s proposal at a general level, I see problems in its application to sexual violence against women. Problems that have to do with the specific nature of the topic at hand and the specific type of state responses to it. And so, problems that need to be properly identified and dealt with if vulnerability is to constitute a “useful heuristic instrument that allows us to identify the flaws in the laws [on sexual violence]”.9

  • 10 Himma 2015: 67.

5My argument is that those problems are inextricably related with the concept of vulnerability. On the one hand, the concept needs to capture and refer to the relevant circumstances of sexual violence against women, the circumstances that make women vulnerable to this kind of aggression. On the other, it is fundamental to identify the different uses of the concept at work in the legal system that rather than protecting women, make them more vulnerable. As a result, the methodology adopted is conceptual analysis. Following Kenneth Himma’s definition of conceptual analysis, my aim is to “locate [the concept of vulnerability] among a general conceptual framework that [can guide] both our linguistic practices regarding the relevant concept-words and our legal practices themselves.”10

6My argument will unfold as follows. Section 2 addresses the relevance of the body for a proper understanding of women’s vulnerability in the context of sexual aggression. Section 3 delves into the relationship between vulnerability and autonomy, arguing that, contrary to other contexts, what is needed regarding sexual violence is a greater focus on the oppositional relationship between vulnerability and autonomy. Section 4 examines the polysemic nature of vulnerability, claiming that such nature is what lies at the root of the discriminatory potential of vulnerability in what regards the laws on sexual violence. Subsection 4.1 analyses the binary structure of female stereotypes, divided into opposing representations of “good” and “bad” women. Subsection 4.2 asserts the correspondence between the “good woman” stereotype and the ideal victim of rape, whereas subsection 4.3 contends that women whose behaviour does not conform with the “good woman” stereotype are framed as bad women and, consequently, become “bad victims”, victims whose sexual aggression is often denied by the judicial system. Subsection 4.4 concludes by affirming that it is not the idea of women’s vulnerability but rather the perception of women as active agents, perfectly capable of resistance to sexual aggression, that leads to the effacement of countless cases of sexual violence by law. The paper finishes with a note of hope by considering, in its concluding remarks, the feminist political struggle over the meaning of vulnerability.

2 The body

  • 11 The case that became known as “la Manada” refers to a rape of an 18-year-old woman by five men on t (...)
  • 12 Pozzolo 2020: 12.
  • 13 Pozzolo 2020: 13, own translation.
  • 14 Pozzolo 2020: 8, own translation.

7In her analysis of the “Manada” case,11 Pozzolo excludes the general difference in strength between men and women as a source of women’s vulnerability to sexual violence.12 As said before, this exclusion is related to an understanding of vulnerability in terms of context rather than corporeality. Hence, regarding the “Manada” case, the author states: “what can be seen, at a closer look, is situational vulnerability, that is, vulnerability caused by the particular context – without a necessary connection with the body (…).”13 As I interpret Pozzolo, this exclusion is, as previously mentioned, related with the intent of avoiding discriminatory effects against people considered vulnerable: “[to] qualify someone as vulnerable becomes potentially discriminatory due to the insistence in anchoring vulnerability in her being – her lack of [something]”.14 In my understanding, however, such effects emerge precisely out of the lack of consideration of the corporeal element or, more accurately, the general difference in strength between men and women. Let me explain.

  • 15 Decision No. 000038/2018 of the Second Section of the Audiencia Provincial de Navarra.
  • 16 A clarification concerning terminology is in order here. At the time of the ruling, Spanish law dif (...)
  • 17 At that moment, Spanish law differentiated between “lack of consent” and “vitiated consent”. Wherea (...)
  • 18 At the time when the events took place, Spanish law defined rape as involving violence or intimidat (...)

8In the Manada case, the first instance court15 ruled it to be a case of sexual abuse and not rape.16 The reason was the lack of violence and intimidation on the part of the aggressors and the lack of resistance on the part of the victim from which (vitiated) consent17 was inferred.18 Given that this is a case of a sexual aggression by five men, the difference in strength between the victim and the aggressors seems to be of essence in the consideration of the reason and meaning of the lack of resistance on the part of the victim. The same can, in my view, be said of cases where there is only one aggressor with a superior physical strength. The probability of success when fighting someone with a superior strength, as well as the level of intimidation, is definitely not the same as when fighting someone of equal or inferior physical strength. Hence, the likeliness of the perception on the part of the victim that resistance is both pointless and dangerous. Not to consider this factor can be seen as a form of discrimination against women masked as gender neutrality. A preference for formal equality to the detriment of substantial equality.

  • 19 Mackenzie et al. 2014: 9.

9I would like to make clear, however, that I am not defending that the only source of women’s vulnerability in cases of sexual aggression is the body, women’s body – neither at a concrete case level, nor at an abstract/group one. There is no doubt in my mind over the fact that the source needs to be located fundamentally at the level of the patriarchal social relations of gender and sexuality, and that this, therefore, is a type of situational or, more accurately, pathogenic vulnerability: a subset of situational vulnerability that arises out of “morally dysfunctional or abusive interpersonal and social relationships and sociopolitical oppression or injustice.”19 Nonetheless, the difference in strength between a man and a woman cannot be discarded as irrelevant to the concrete situation of vulnerability – and thus diminished autonomy – a female victim is in at the time of a sexual aggression. This is particularly so when the law directly or indirectly establishes the requirement of resistance on the part of the victim to frame the aggression as rape. Doing so constitutes, in my view, a form of pathogenic vulnerability.

  • 20 Mackenzie et al. 2014: 8.

10Concerning the relevance of the corporeal factor in cases of sexual aggression against women and the type of vulnerability at stake in this kind of case, I would like to call attention to the relationship between inherent and situational vulnerability. When proposing a taxonomy of sources of vulnerability, Mackenzie, Rogers, and Dodds highlight the fact that those two sources “are not categorically distinct”.20 As Mackenzie further elaborates:

The distinction between inherent and situational vulnerability is not categorical, as these two sources of vulnerability can be causally interconnected. Situational vulnerability can give rise to inherent vulnerability (…). And some kinds of inherent vulnerability will render people more liable to situational vulnerability (…). (Mackenzie 2014: 39)

11Let me apply this idea to sexual violence against women. Were it not for the patriarchal social relations of gender, the difference in strength between men and women would not, by itself, make women vulnerable to sexual aggression, at a general, group level. The same observation can be made in relation to concrete cases of sexual attack: were it not for that specific context, the difference in strength would not, by itself, make women vulnerable. Yet, given those relations and specific contexts of sexual aggression, the difference in strength between victim and attacker in concrete situations needs to be taken into account, as such difference is causally interconnected with the context in making women vulnerable to sexual aggression and in explaining their lack of resistance to the attack.

3 Vulnerability and autonomy

  • 21 Pozzolo 2020: 9.
  • 22 Pozzolo 2020: 5, 6.
  • 23 Pozzolo 2020: 9.

12As rightly noted by Susanna Pozzolo, the classification of a group as vulnerable frequently motivates paternalistic measures towards those groups.21 As I interpret her, this is one of the reasons why the author defends that vulnerability and autonomy should not be understood as mutually exclusive.22 Her reasoning seems to follow Catriona Mackenzie’s, who Pozzolo quotes when referring to the relationship between vulnerability and paternalism.23 As Mackenzie explains,

(…) notions of vulnerability and protection can be, and historically have been, used to justify coercive or objectionably paternalistic social relations, policies, and institutions, which often function to compound rather than ameliorate the vulnerability of the persons or groups they are designed to assist. (Mackenzie 2014: 35)

  • 24 Mackenzie does not hesitate to acknowledge the oppositional relation of degree between vulnerabilit (...)
  • 25 Mackenzie 2014: 34.

13In her view, the reason lies in the conceptualization of vulnerability and autonomy in oppositional terms – by which Mackenzie means mutually exclusive terms –24 as, in her understanding, such a conceptualization implies that “there is a tension between responding to human vulnerability and promoting autonomy”.25 I.e., in the author’s view, protecting vulnerable people from harm and protecting their autonomy are mutually exclusive.

14Although I agree with Mackenzie and Pozzolo on a general level, I fail to see the relevance of this remark regarding sexual violence against women and the specificity of the law’s flaws in this context. As I see it, there are two important differences between the cases on which Pozzolo bases her reasoning and cases of sexual violence against women. The first is related to what is disputed, that is, what is at stake in these two different kinds of cases, and the second concerns the (problematic) measures typically applied by the state in both types of cases.

15The cases brought up by Pozzolo are cases in which what is at stake is the capacity of an individual or group, and particularly the capacity to consent. As the author tells us, in those cases:

[…] vulnerability indicates precisely a lack of power – a deficiency in control. It indicates, ultimately, an insufficiency at the level of autonomy, of freedom of election and action. More precisely, I would say that [the idea of vulnerability] indicates a reduction at the decisional level, because, when a person is classified as vulnerable, that means that she has a characteristic that situates her at an inferior level than the average [human being]. (Pozzolo 2020: 3-4, own translation)

  • 26 Mackenzie et al, 2014:2.
  • 27 Pozzolo 2020: 21-23, notes 5, 6, 7, 12.
  • 28 Rogers 2014: 64-66.

16Pozzolo is not alone. The literature on vulnerability largely emerged from contexts in which the capacity to consent is at stake. Bioethics and disabilities studies are probably the best examples,26 the latter being expressly referred to by Pozzolo.27 There the idea of vulnerability was meant to signal a special obligation from the state to protect those who are not able to make choices on their own, thus requiring a special state intervention aimed at protecting them from harm – a harm caused by the choices vulnerable people supposedly have no capacity to make.28

17But the capacity to consent is not at all what is usually at stake in cases of female rape. In cases where a woman claims to have been raped, what is often put into question is not whether or not she has the capacity to consent, to make a choice, but rather consent itself, that is, the content of her choice: if she indeed agreed to the sexual interaction or not. This is important because of the type of problems one encounters in relation to state intervention in cases of rape: the issue here is not the paternalistic measures through which the state impedes the vulnerable person to make choices or invalidate them, but rather the ample denial that there was a lack of consent. Therefore, in cases of sexual violence the problem is not paternalism, but exactly the opposite: a lack of protection.

18Now, if the understanding of vulnerability and autonomy not as mutually exclusive but rather in terms of an inverse relationship of degree is an important instrument against paternalism, and paternalism is not the problem in cases of sexual violence, then, although true and generally very important, such an understanding does not illuminate or contribute to the correction of law’s flaws in these types of cases. In fact, in cases of sexual violence what is needed, instead, is a greater focus on the oppositional relationship between vulnerability and autonomy, in addition to a greater awareness that cases of sexual aggression are frequently ones where the degree of vulnerability is closer to its highest and, thus, the degree of autonomy closer to its lowest. Only this focus and awareness can help law enforcers to reconceptualize the lack of resistance on the part of a victim of sexual aggression: not as consent, as is too often the case, but rather as a lack thereof.

  • 29 Mackenzie 2014: 33-34.

19Let me apply this reasoning to the Manada case. The case was not framed as rape because of the absence of violence on the part of the aggressors. Such a requirement translates into one of resistance on the part of the victim – since often violence is exerted as an instrument against the resistance of the victim to a sexual interaction. This latter requirement assumes that resistance was a possibility, disregarding the situation of reduced alternatives the victim had at the time of the attack. It disregards, therefore, the victim’s situation of extreme vulnerability – vulnerability defined as the condition of “increased risk of harm or […] reduced capacity or power to protect one’s interests” –29 and its oppositional relationship with autonomy. Due to the difference in strength between the attackers and the victim, and so the possible risk to her physical integrity and life, resistance was not a real possibility, and so, from its absence, consent cannot be inferred.

  • 30 Pozzolo 2020: 15.
  • 31 Pozzolo 2020: 15.

20Summarising my position on the topic, I would like to say that I am in total agreement with Pozzolo when she says that the legal requirement of a violent reaction on the part of the victim for the typification of the facts of the Manada case as rape configures pathogenic vulnerability: “here it is obvious that it is the law that makes women vulnerable.”30 In my view, however, the source of that specific cause of vulnerability is not only the fact that such requirement has a masculine character disguised as neutral.31 My suggestion is that, in addition, (1) this requirement is discriminatory because it ignores the frequent difference in strength between victim and attacker(s), (2) equals a demand that victims endure further danger to their physical integrity and life, and/or (3) translates into a lack of recognition that in cases such as this, because of that danger, resistance is not a real possibility for the victim. It ultimately amounts to a lack of acknowledgement of the situation the victim is in with a constrained set of options, as it does not shelter the oppositional view on the relationship between vulnerability and autonomy, thus, not recognizing the lack of autonomy that such a situation of extreme vulnerability implies.

4 The polysemic nature of vulnerability

  • 32 Pozzolo 2020: 16.

21While defending vulnerability as a useful heuristic instrument to make the flaws in the laws on sexual violence visible,32 Susanna Pozzolo does not underestimate its discriminatory effects. Nonetheless, in my understanding, she does not fully account for the discriminatory potential of the concept, thus missing out on some important reasons for the law’s overall lack of protection of women in this context. The aim of the present section is to elaborate on some fundamental challenges the idea of vulnerability poses in the context of sexual violence against women. It is my belief that a proper understanding of those challenges might illuminate and neutralize the discriminatory potential of this concept.

  • 33 Gilson 2016: 74.
  • 34 Gilson 2016: 74.
  • 35 Gilson 2016: 71.

22While Pozzolo associates the discriminatory potential of vulnerability with the idea that the source of vulnerability is a woman’s body, I believe such potential is grounded in vulnerability’s polysemy. In understanding this argument, Erinn Gilson provides us with a good starting point: “a particular understanding of vulnerability dominates the sociocultural imaginary of the industrialised, capitalist Western parts of the world”.33 Such understanding associates vulnerability with “weakness, dependency, incapacity, incapability, and powerlessness”,34 and, in turn, all those ideas with women. The result is the femininisation of vulnerability: vulnerability is a “feminised concept”.35 From a feminist point of view, the problem with this is the “vulnerabilisation” of women or, more accurately, the invocation and perpetuation of a female stereotype that represents women’s nature as vulnerable in a specific sense. A stereotype, which, in turn, is strongly associated with women’s discrimination and repression.

  • 36 Abrams 1995: 305.
  • 37 Abrams 1995: 305.

23This idea strongly resonates with the debate on victimhood and agency fought over in the 1980s and 1990s within feminism. At the time, it was argued that the dominant feminist focus on sexual violence against women depicted “women as shaped by pervasive male sexual coercion [and that] was to tell a partial, and potentially injurious, story.”36 As Kathryn Abrams explains, the focus on sexual violence was said to assign women a “victim status” that encouraged a “wounded passivity on the part of women and a repressive regulatory urge on the part of state authorities.”37 Instead, those critical voices claimed for a greater emphasis on women’s agency, assuming a mutually exclusive relationship between victimhood and agency.

24I would like to bring the idea that depicting women as victims is potentially injurious into the debate on the dangers of using vulnerability as a framework through which to analyse rape and complement it with the suggestion that vulnerability mobilises female stereotypes. Here is my proposal: female stereotypes lie at the heart of women’s vulnerability to sexual violence, and that is the case in at least two senses. First, they are directly connected with the acts of sexual violence perpetrated by men against women; and second, they are central to the law’s lack of protection of women in cases of rape. My focus here is on the latter connection. However, going into the specifics of the law’s flaws requires a previous digression into the content of women’s stereotypes.

4.1 Female stereotypes

25Stereotypes about women have historically been organized around a binary opposition, which divides women into two types. There are different designations for them: the good and the bad woman, the virtuous and the fallen, and the Madonna and the whore, just to mention some of the most popular ones. In my view, this dualism is based on three criteria, the first being sexuality, the second being morality, and the third being what some call potency or power. Accordingly, women have been perceived as either 1) desexualized, good, and powerless, or 2) sexualized, evil, and powerful.

  • 38 Rosenberg et al. 1968.
  • 39 Fiske et al. 2002.
  • 40 Jasper et al. 2020.
  • 41 Fiske et al. 2002.
  • 42 Clifton et al. 1976; Noseworthy & Loth 1984; Six & Eckes 1991.
  • 43 Six & Eckes 1991; Vonk & Ashmore 2003.
  • 44 For this reason Dewall et al. (2005) propose to unite morality and sexuality into one single catego (...)

26The extensive work that has been done over the last decades on stereotypes might help us to better understand this. Stereotypes seem to work in the same way our perception of other people does. We perceive people along two dimensions. Some call it intellectual and social,38 others competence and warmth,39 and further there are those that refer to it as power/potency and morality.40 Concerning stereotypes of out-groups, Susan Fiske and her colleagues have shown a prevalent inverse relationship between those two dimensions: where there is a positive regard of one of the dimensions, there is a negative assessment of the other.41 In terms of gender, this is exactly what happens. But when it comes to women, a further dimension enters the equation: sexuality.42 And when it comes to sexuality, women are again divided into opposing types, some with favourable connotations and others with highly negative ones.43 It is important to note how the morality and sexuality dimensions seem to vary in the same direction: a sexually virtuous woman is usually perceived as morally virtuous too.44

  • 45 Cott 1978; Trudgill 1976: 56-57; Welter, 1966: 154-158.
  • 46 Higgins 1976.
  • 47 Trudgill 1976: 70-71, 76-77, 78-80.
  • 48 Welter 1966: 152-154.
  • 49 Higgins 1976; Lombroso & Ferrero 2004: 183.
  • 50 Lombroso & Ferrero 2004: 83.
  • 51 Trudgill 1976: 66.

27Allow me to make an attempt to synthesise the content of the good and the bad woman stereotypes. The good woman is chaste. She is sexually innocent, pure, and passive.45 The bad woman, instead, is sexually active: a seductor, a provocateur, and a temptress.46 But, as previously said, the opposition in stereotypes of women is not restricted to their sexuality – even if, at least in the case of rape, sexuality can be seen as a starting point in the framing of women into one or the other stereotype. Morality is also of essence in such opposition. Women are, thus, divided into angels and devils, Marys and Eves. Historically, it can be observed as, from modernity onwards, the figure of the wife/mother has epitomised the former side of this dichotomy, with married women being represented and perceived as kind and completely selfless, entirely devoted to their children and their husbands, whom they often saved from immorality.47 They were supposedly connected with God, religion, and charity.48 In opposition, promiscuous women were perceived as endowed with evilness and selfishness, capable of deceit, revenge, and whatever necessary to achieve their aims.49 This brings us to the final element in the opposition between the good and the bad woman stereotypes: what I have referred to as power/potency. Whereas bad women have been associated with all the necessary capacities for evilness,50 good women have often been perceived as naïve, incompetent, and even idiots, uncapable, therefore, of protecting themselves or their interests.51

  • 52 Glick & Fiske 1996: 509.

28The idea of vulnerability is strongly associated with this latter characteristic of the good woman. But not exclusively so. All the three elements in the dichotomy contribute to an opposing placement of the good and the bad woman in terms of vulnerability to danger: whereas innocent and respectable women are seen as vulnerable to sexual attack and ill-intended male seduction, promiscuous women are depicted as active seductresses who bring destruction and all kinds of harms upon themselves and everyone that surrounds them. Bad women, are thus, not perceived as vulnerable to danger but rather as a source of danger. Glick and Fiske, for instance, have shown how sexually “bad” women are perceived as threatening to men because of the idea that they can use men’s attraction to them to manipulate them.52 Such an idea is of essence in the context of rape and the judicial system’s failure to acknowledge and punish it. The idea of the “ideal victim” might help us to see why.

4.2 The ideal victim

  • 53 Christie 1986: 18.
  • 54 Christie 1986: 19.

29Nils Christie has famously defined the ideal victim as “a person or a category of individuals who – when hit by crime – most readily are given the complete and legitimate status of being a victim.”53 According to the author, being framed as an ideal victim requires that the victim, the circumstances of the crime, and the offender be endowed with certain attributes: 1) the victim must be weak, 2) she must have been carrying out a respectable project at the time of the crime, 3) she must have been in a place where she could not possibly be blamed for being, 4) the offender must be big and bad, and also 5) unknown and in no personal relationship to the victim.54 There is also a sixth attribute that I will keep for now in order to make the following point: in relation to sexual violence against women, the ideal victim is the good (vulnerable) woman. Christie confirms this. According to him, in rape cases, the ideal scenario:

is the young virgin on her way home from visiting sick relatives, severely beaten or threatened before she gives in. … [She] is weak compared to the unrelated offender, as well as having put a reasonable energy into protecting herself … against becoming a victim. (Christie 1986: 19)

30As it can be noted, then, the ideal victim of rape needs to be more than weak: she needs to be chaste. The ideal victim therefore, is sexually innocent, pure, and passive. This means that, in the context of rape, the second and third characteristics of the ideal victim are translated into the requirements that, at the time of the crime, the victim is not involved in any potentially sex-related activity or at a place prone to or associated with such types of activities. In my view, however, chastity adds further conditions to the ideal victim of rape, conditions that go beyond the time and the place of the crime. What is required is not only a chaste behaviour at the time of the crime, but instead a chaste character. This appears to be confirmed by Christie’s examples of the non-ideal victim in rape cases.

  • 55 Christie 1986: 19.

31So, who is the non-ideal victim? Christie refers to “the experienced lady on her way home from a restaurant, not to talk about the prostitute who attempts to activate the police in a rape case.”55 I would briefly translate it as the bad woman: the non-ideal victim is framed within the stereotype of the bad woman. In fact, due to the binary character of the stereotypes of the good and bad women, it can succinctly be said that anyone who does not completely fit the good woman stereotype is framed as a bad woman.

32After this brief digression into the content of female stereotypes and the concept of the ideal victim of rape, I will now come back to the idea that motivated it: the dangers of the use of vulnerability in relation to rape.

4.3 Bad women, non-ideal victims, and the denial of rape

  • 56 Gravelin, Biernat, & Bucher 2019: 2.
  • 57 Pedersen & Strömwall 2013; Persson et al. 2018; Viki & Abrams 2002; Yamawaki et al. 2007.

33The problem with vulnerability is that it has always been associated with a particular stereotype of woman – the good woman –, which, in turn, corresponds to the ideal victim of rape. What is problematic about this is that, in most cases, real victims do not match the stereotype of the good (vulnerable) woman with regard to chastity. As a result, they are framed as “bad women” and as “non-ideal victims”, and this has disastrous consequences in terms of victim blaming. Bad women are generally perceived as responsible for the rape, and that is far from being uncommon. In fact, victim blaming is a huge problem with regard to complaints of sexual aggression: “[u]nlike many other interpersonal crimes such as robberies or muggings, victims of sexual assault are particularly vulnerable to being blamed for their attack”.56 As is extensively documented,57 the main reason for victim blaming is the violation of the good/vulnerable woman stereotype, and, hence, the framing of the victim as the bad woman.

  • 58 Krahé 1991: 282.

34A brief look into the factors that influence victim blaming in rape cases should be enough to prove this point. The very first is “social respectability,” or the victim’s sexual behaviour.58 As a result:

both legal practitioners and laypersons attribute blame to rape victims on the basis of extralegal factors such as clothing (Johnson, 1995; Vali & Rizzo, 1991), alcohol consumption (Corcoran & Thomas, 1991; Scronce & Corcoran, 1995), and whether the victim has had multiple sex partners in the past (Marx & Gross, 1995). (Abrams et al. 2003: 113.)

  • 59 Abrams et al. 2003: 121.
  • 60 Abrams et al. 2003: 121.

35Another key example of the importance of sexual respectability on the attribution of blame to the victim is the higher rate of victim blaming in acquaintance rape. As Abrams et al. tell us,59 the reason for this is that acquaintance rape victims are perceived “as having behaved in a manner that is inappropriate for a woman”. Behind this idea lies the stereotype of the good woman and its binary character. Someone who does not behave as a good woman is framed as a bad woman. An important characteristic of the binary opposition between good and bad women is that the first is perceived as the norm in its descriptive and normative senses – how women normally act and how they should act – and the second as a deviation from it. “[A] woman who invites a relationship with a man” is violating that norm and is, therefore, perceived as “responsible for anything unfortunate that may happen to her.”60

  • 61 Burt & Albin 1981: 213.

36It should be noted, however, that what is at stake is not merely a matter of victim blaming, at least not explicitly. Adherence to female stereotypes leads to more restrictive rape definitions, which translates into the denial of many actual rapes.61 The central piece here is, of course, consent. Martha Burt and Rochelle Albin make this connection clear:

women with certain reputations and identities … are stereotypically assumed to consent more readily, to more men, in more situations. Having assumed a generalized propensity to consent and attached it to whole classes of women, this line of reasoning then particularizes the argument to this woman (victim) in this situation (alleged rape) and infers consent to this man (alleged assailant). Therefore, following this reasoning, this situation is not a rape. (Burt & Albin 1981: 214)

37Accordingly, my point is that unchaste sexual behaviour leads to the framing of the victim as a bad woman and such framing, in turn, translates not only into the idea that the victim is the one to blame for the assault, but further into the idea that there was no assault at all. The reason is that bad women are perceived as always “ready to go”, which is seen as incompatible with the absence of consent. The result is the denial of rape at all.

  • 62 Burt 1980: 217.

38To this, I would like to add a last element in the stereotype of the bad woman, which I believe is at work in the pervasive denial of rape by the judicial system. It concerns the widespread suspicion that victims are lying about the occurrence of a sexual aggression. Such suspicion, I propose, is related to the bad woman stereotype, which depicts women as evil and vengeful, and which relates to the widespread rape myth that “women ‘cry rape’ only when they have been jilted or have something to cover up”62 and that women are prone to making false allegations out of spite, revenge, or fantasy.

4.4 Vulnerability and the law

  • 63 Gilson 2016: 74.

39At the start of Section 4 I defended that the discriminatory potential of vulnerability goes beyond the idea that the source of women’s vulnerability to sexual violence is our body, an idea I interpret Susanna Pozzolo’s argument to presume. I pointed out the polysemic nature of vulnerability to call attention to a particularly dominant understanding of vulnerability that associates it with “weakness, dependency, incapacity, incapability, and powerlessness” and, in turn, all those ideas with women.63 I then suggested that understanding mobilises female stereotypes that lie at the heart of the law’s failure in acknowledging and punishing sexual aggression against women. I was referring to the dichotomy of the good/bad woman which I then attempted to show is incorporated by laws and judicial practices on sexual violence: the good woman becomes the norm with which every victim needs to comply in order to become an “ideal victim” and to have the sexual violence against her acknowledged and punished by the system. As a result, a lack of conformity on the part of victim leads to her framing as bad woman and the consequent unrecognition of the sexual assault by the judicial system.

  • 64 Stringer 2013: 148-149.
  • 65 Marcus 2013: 390.
  • 66 Marcus 2013: 393.

40As also stated before, vulnerability seems to constitute a new chapter in the feminist debate on victimhood and agency that started in the 1980s and 1990s. As Rebecca Stringer has summarised, many have accused feminist rape law reform efforts at reinscribing “patriarchal constructions of femininity as embodied vulnerability, perpetuating a sexist linking of femininity with victimhood rather than agency.”64 At first sight, there seems to be something right with this idea. By posing the good woman stereotype as the norm with which victims of sexual violence need to conform with, law does seem to adopt a language that, as Sharon Marcus puts it, “solicits women to position ourselves as endangered, violable, and fearful”65 and excludes “women’s will, agency, and capacity for violence”.66 If that would be true, then, the feminist use of vulnerability in the context of sexual violence - even if with a very different meaning – would likely serve to reinforce and perpetuate patriarchal constructions of femininity that hinder the law’s capacity to acknowledge and punish rape, due to the polysemic nature of vulnerability.

  • 67 Stringer 2013: 149.
  • 68 Stringer 2013: 149.
  • 69 Stringer 2013: 153.

41Yet, at a closer look, what can be observed is exactly the opposite. As Stringer notes, “rape law typically figures femininity not as embodied vulnerability but as responsible agency”.67 Rather than an expectation and demand of women’s passivity, “modern rape law has typically represented women as capable of resisting rape, invoking images of women as agents in order to deny that sexual victimization has taken place.”68 In other words, the resistance requirement is evidence of the law’s perception of women as active agents,69 and this – and not the idea of women’s vulnerability – is precisely what leads to the effacement of countless cases of sexual violence.

  • 70 Stringer 2013: 161.

42Furthermore, there is a second way in which the agency of women is presumed in cases of sexual violence. Stringer refers to it as “bad agency”. As she explains, “[i]n addition to the good agency ascribed to the ideal victim by the resistance requirement, there is the bad agency ascribed”70 to non-ideal victims. Here I will slightly depart from Stringer’s view to suggest that “bad agency” is ascribed to victims of sexual violence framed as “bad women”. It is not vulnerability but agency that stands at the core of victim blaming. Moreover, it is specifically sexual agency that lies behind the stereotypical assumption of consent by women with certain (unchaste) reputations and identities. Finally, it is agency once again and in no way vulnerability that grounds the commonplace idea that women are prone to make false allegations out of spite, revenge, or fantasy.

  • 71 Code 2009: 336.

43As a result, one might conclude that if the legal system is too often “a notorious site of incredulity” 71– to use Lorraine Code’s brilliant expression – with regards to women’s claims of sexual violence, this is certainly not related with vulnerability or, more accurately, a construction of femininity as vulnerable in the sense of weakness, passivity, incapability, and powerlessness. Since, when understood in this sense, vulnerability is too often imagined as opposite to agency, it is possible to say that, in fact, just the contrary is true. What lies at the heart of the law’s flaws regarding sexual violence against women is the demand and assumption of our agency.

5 Conclusion

  • 72 Gilson 2016: 73.
  • 73 Mackenzie et al. 2014: 6.

44Vulnerability is a challenging concept. Its polysemic nature presents us with important difficulties arising from its “ambiguities, complexities, and tensions”.72 Understood in one sense, vulnerability captures the condition of “contingent susceptibility of particular persons or groups to specific kinds of harm or threat by others”,73 thus, helping to shed light on the state’s special moral and justice obligations towards those considered vulnerable. Understood in another sense, vulnerability mobilises female stereotypes that are at the origin of the state’s failure in acknowledging and punishing sexual violence against women. As such, vulnerability is both potentially apt to illuminate women’s sexual oppression and perpetuate such a condition, both resistant and complicit, both emancipatory and oppressive.

  • 74 Preciado 2009: 14, own translation.
  • 75 Scott 1986: 1035.
  • 76 Preciado 2009: 16.

45Given such ambiguity, doubts arise concerning the usefulness of vulnerability as an epistemological framework for understanding sexual violence against women as endemic to male-female relations. Despite its vexing nature, I side with those who defend vulnerability as a lens through which to (re)conceptualize rape and sexual aggression more broadly. As Susanna Pozzolo, I too argue in favour of vulnerability’s value as a heuristic instrument capable of rendering intelligible the law’s flaws in this regard. The reason is my firm commitment to the belief in the transformative power of language: “(…) behind every word there is a history, just as behind every history there is a struggle to fix or change the meaning of words.”74 As Joan Scott tells us, “words, like the ideas and things they are meant to signify, have a history.”75 That history is political, as the meaning of words shapes and is shaped by power. For all this, language is a privileged locus of political action and resistance.76 I would like to bring this insight concerning the changing and political nature of language to the present reflection on vulnerability.

  • 77 Christie 1986: 21.

46Nils Christie added to the already mentioned five conditions to be an ideal victim, a sixth one: be “powerful enough to make your case known and successfully claim the status of an ideal victim.”77 He arrived at this condition precisely by looking at the feminist fights and achievements on rape. Writing in the 1980s, he argued:

Wives are not "ideal victims." Not yet. But they are approaching that status. They are more ideal today than yesterday. (…) They are also closer to a position where they can claim that their definition of the situation is the valid one. They can make the political claim of being real victims. (Christie 1986: 20)

  • 78 Alcoff 2018: 3.
  • 79 For a detailed account of the impact of the feminist movement on the marital rape exemption in US L (...)

47When Christie talked of a position of power, he was exclusively referring to material conditions. However, in achieving a position of power, in being able to claim to be a real victim, the struggle over words and their meaning is of absolute essence. As Linda Alcoff puts it, language is “part of what gives people ideas of what they can do and of what they have just experienced.”78 Marital rape is a prime example of this, as before feminists started talking about rape in marriage, not only was this rarely acknowledged by law, but the victims themselves did not recognize either the rape or their own victimization.79 It was by naming marital rape that both marriage and rape were redefined. Such a redefinition occurred within a wider process of meaning mutability in which new ideas became possible and others came to be contested. What made this process possible was the political struggle over the meaning of words.

  • 80 Stringer 2013: 148.
  • 81 Butler et al. 2016: 1.
  • 82 Butler et al. 2016: 1.

48In more general terms, Rebecca Stringer refers to “feminist efforts to reform rape law” as a “political work that endeavours to counter the linguistic, cultural, and legal effacement of particular forms of suffering, through the invention of new idioms that give suffering visibility.”80 Not only do I completely agree with her as, for me, her words shed light on what is often a vexed point in the conceptualisation of vulnerability: its relation to resistance. As Judith Butler, Zeynep Gambetti, and Leticia Sabsay point out, several popular and theoretical discourses assume vulnerability and resistance to be mutually opposite.81 Yet, as the feminist work on sexual violence has been witness to vulnerability, and more specifically the consciousness of group vulnerability to certain harms, it “is one of the conditions of the very possibility of resistance”.82 The political struggle over the meaning of words is a crucial mode of resistance that both emerges out of and allows for the visibility of a group’s vulnerability.

  • 83 Spain's Supreme Court found the five men involved in the case guilty of gang rape, overruling previ (...)
  • 84 Preciado 2009: 16, own translation.

49As I see it, the feminist struggle over the meaning of the word vulnerability in relation to sexual violence against women is on the right path. Both the theoretical discussions on the matter and the public mobilisations against decisions and trials such as the “Manada” case are the best evidence of just that, as is the final decision on this case.83 Such a struggle, however, cannot remain blind to the semantic difficulties vulnerability is associated with. It needs to be very aware of them, to understand their workings, and to be ready to identify them when they are at stake both in concrete cases and general doctrines. For the rest, the most important change has already started to happen. As Paul Beatriz Preciado tells us in relation to the transformation in the meaning of the word queer, what changed was the uttering subject.84 In relation to vulnerability and sexual violence against women, that subject is no longer (exclusively) the sexist male judicial operator, but feminists who are transforming the meaning of vulnerability and, with it, its role: from an instrument of social oppression to one of political resistance and social transformation.

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Ryan, R. M. (1995). The Sex Right: A Legal History of the Marital Rape Exemption. Law & Social Inquiry20(4), 941–1001. https://doi.org/10.1111/j.1747-4469.1995.tb00697

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Six, B., & Eckes, T. (1991). A Closer Look at the Complex Structure of Gender Stereotypes. Sex Roles, 24(1–2). https://doi.org/10.1007/BF00288703

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Viki, G. T., & Abrams, D. (2002). But She Was Unfaithful: Benevolent Sexism and Reactions to Rape Victims Who Violate Traditional Gender Role Expectations. Sex Roles, 47(5–6), 289-293. https://doi.org/10.1023/A:1021342912248

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Spanish caselaw

Sección Segunda de la Audiencia Provincial de Navarra, Decision nº 38, 20th March 2018. Available at: https://www.diariodesevilla.es/2018/04/26/SENTENCIA_SUMARIO_426_DE_2016_cen.pdf?hash=e20ec174f9f8f973713214dc7e6703d33861d342

Tribunal Supremo, Decision nº 344, 4th July 2019. Available at: https://www.diariodesevilla.es/2019/07/05/Sentencia_Sala_Segunda_caso_La_Manada_JG.pdf?hash=c2bc31bd7c438c8d4dc829a6b2d4e4c79cb3e064

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Notes

1 Bergoffen 2003, 2009, 2011; Code 2009, Gilson 2016.

2 Pozzolo 2020: 16.

3 Pozzolo 2020: 2, 9, 11.

4 Pozzolo 2020: 2.

5 As expressly stated, Pozzolo bases her proposal in Catriona Mackenzie’s classification of the sources of vulnerability, which she reinterprets (Pozzolo 2020: 3). As such, whereas Mackenzie proposes a taxonomy that distinguishes between inherent, situational, and pathogenic vulnerability, Pozzolo speaks of corporeal, contextual, and pathogenic vulnerability. As I see it, there is at least one important difference. I am referring to inherent and corporeal vulnerability, as inherent vulnerability refers to much more than just the body, such as human beings’ social, affective, and political nature which makes us “emotionally and psychological vulnerable”, in addition to making us vulnerable to “exploitation, manipulation, political violence, and rights abuses.” (Mackenzie et al. 2014: 1).

6 Pozzolo 2020: 14, own translation.

7 Pozzolo 2020: 5.

8 Pozzolo 2020: 3, 6, 9.

9 Pozzolo 2020: 16, own translation.

10 Himma 2015: 67.

11 The case that became known as “la Manada” refers to a rape of an 18-year-old woman by five men on the 7th of July 2016 during the San Fermín Festival, that takes place annually in Pamplona, Spain. The attackers, that included a member of the Civil Guard and another of the Spanish Army, made several videos of the attack, which took place in a vestibule of an apartment building. The case drew intensive public attention and was at the center of an exhaustive public debate concerning the definition of rape and its differentiation from sexual abuse. It eventually led to an important change in the law, that ended the distinction between both crimes.

12 Pozzolo 2020: 12.

13 Pozzolo 2020: 13, own translation.

14 Pozzolo 2020: 8, own translation.

15 Decision No. 000038/2018 of the Second Section of the Audiencia Provincial de Navarra.

16 A clarification concerning terminology is in order here. At the time of the ruling, Spanish law differentiated between the crime of sexual aggression and the crime of sexual abuse, the former but not the latter being a synonym of rape. I will use the word “rape” to refer to what the Spanish law used to name sexual aggression (“agresión sexual”) and use “sexual aggression” as a general term to refer to sexual violence, sexual attack and sexual assault, and so, as including both rape and sexual abuse.

17 At that moment, Spanish law differentiated between “lack of consent” and “vitiated consent”. Whereas lack of consent was a constitutive element of the crime of rape, vitiated consent was constitutive of the crime of sexual abuse. The decision under analysis defines vitiated consent in opposition to free consent and as synonym of consent that is “coerced or pressured by [the] situation.” (SAP NA 38/2018: 99, own translation).

18 At the time when the events took place, Spanish law defined rape as involving violence or intimidation. Even though the first instance ruling on the “Manada” case expressly states that the legal qualification of the facts as rape depends exclusively on the conduct of the aggressor and not the victim’s (SAP NA 38/2018: 98), the decision also refers to the requirement of resistance on the part of the victim not having “to be desperate, but real, true, determined, continued and that unequivocally expresses a will contrary to the sexual act.” (SAP NA 38/2018: 95, own translation).

19 Mackenzie et al. 2014: 9.

20 Mackenzie et al. 2014: 8.

21 Pozzolo 2020: 9.

22 Pozzolo 2020: 5, 6.

23 Pozzolo 2020: 9.

24 Mackenzie does not hesitate to acknowledge the oppositional relation of degree between vulnerability and autonomy when affirming that “some social relationships and environments provide hostile conditions for autonomy. Environments characterized by corrosive disadvantage (social, political, economic, educational) or social relationships characterized by abuse, coercion, violence, or disrespect [– environments and social relationships, therefore, that correspond to situations of pathogenic vulnerability –] may seriously thwart the development of many of the skills and competences required for self-determination or may constrain their exercise.” (Mackenzie 2014) In addition, when writing with Wendy Rogers and Susan Doods, Mackenzie expressly refers to the undermining of autonomy or the exacerbation “of the sense of powerlessness engendered by vulnerability in general” as one of pathogenic vulnerability’s key features (Mackenzie et al. 2014: 9).

25 Mackenzie 2014: 34.

26 Mackenzie et al, 2014:2.

27 Pozzolo 2020: 21-23, notes 5, 6, 7, 12.

28 Rogers 2014: 64-66.

29 Mackenzie 2014: 33-34.

30 Pozzolo 2020: 15.

31 Pozzolo 2020: 15.

32 Pozzolo 2020: 16.

33 Gilson 2016: 74.

34 Gilson 2016: 74.

35 Gilson 2016: 71.

36 Abrams 1995: 305.

37 Abrams 1995: 305.

38 Rosenberg et al. 1968.

39 Fiske et al. 2002.

40 Jasper et al. 2020.

41 Fiske et al. 2002.

42 Clifton et al. 1976; Noseworthy & Loth 1984; Six & Eckes 1991.

43 Six & Eckes 1991; Vonk & Ashmore 2003.

44 For this reason Dewall et al. (2005) propose to unite morality and sexuality into one single category which they designate as virtue.

45 Cott 1978; Trudgill 1976: 56-57; Welter, 1966: 154-158.

46 Higgins 1976.

47 Trudgill 1976: 70-71, 76-77, 78-80.

48 Welter 1966: 152-154.

49 Higgins 1976; Lombroso & Ferrero 2004: 183.

50 Lombroso & Ferrero 2004: 83.

51 Trudgill 1976: 66.

52 Glick & Fiske 1996: 509.

53 Christie 1986: 18.

54 Christie 1986: 19.

55 Christie 1986: 19.

56 Gravelin, Biernat, & Bucher 2019: 2.

57 Pedersen & Strömwall 2013; Persson et al. 2018; Viki & Abrams 2002; Yamawaki et al. 2007.

58 Krahé 1991: 282.

59 Abrams et al. 2003: 121.

60 Abrams et al. 2003: 121.

61 Burt & Albin 1981: 213.

62 Burt 1980: 217.

63 Gilson 2016: 74.

64 Stringer 2013: 148-149.

65 Marcus 2013: 390.

66 Marcus 2013: 393.

67 Stringer 2013: 149.

68 Stringer 2013: 149.

69 Stringer 2013: 153.

70 Stringer 2013: 161.

71 Code 2009: 336.

72 Gilson 2016: 73.

73 Mackenzie et al. 2014: 6.

74 Preciado 2009: 14, own translation.

75 Scott 1986: 1035.

76 Preciado 2009: 16.

77 Christie 1986: 21.

78 Alcoff 2018: 3.

79 For a detailed account of the impact of the feminist movement on the marital rape exemption in US Law, see Ryan 1995.

80 Stringer 2013: 148.

81 Butler et al. 2016: 1.

82 Butler et al. 2016: 1.

83 Spain's Supreme Court found the five men involved in the case guilty of gang rape, overruling previous decisions that had convicted them of the offence of sexual abuse. In its ruling, the court considered that there was a genuine scenario of intimidation in which the victim never consented to the sexual acts performed by the accused (STS 344/2019).

84 Preciado 2009: 16, own translation.

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References

Electronic reference

Ana Lúcia Costa, Vulnerability, sexual violence and the lawRevus [Online], 51 | 2023, Online since 05 April 2024, connection on 25 May 2024. URL: http://journals.openedition.org/revus/10132; DOI: https://doi.org/10.4000/revus.10132

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About the author

Ana Lúcia Costa

Margarita Salas Postdoctoral Fellow, Law and Philosophy Research Group, Law Department, Pompeu Fabra University, Barcelona, Spain. E-mail: analucia.correiadacosta@gmail.com

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