Sexual Violence.pdf

243

The mark of refusal

Sexual violence and the politics of

recontextualization

Feminist Theory

SAGE Publications

(London,

Thousand Oaks, CA

and New Delhi)

vol. 5(3): 243–256.

1464–7001

DOI: 10.1177/1464700104046975

www.sagepublications.com

Nina Philadelphoff-Puren Monash University

Abstract What consequences do poststructuralist theories of language

have for feminist strategies addressing rape? In particular, what might be

the fate of attempts to secure the meanings of certain words uttered by

women in this context, such as ‘no’? Can we bracket off such statements

from the agon of the juridico-linguistic domain in a manner that

short-circuits all contest? In contrast, if we agree that such contest is an

irrevocable component of the ﬁeld in which feminist struggles take

place, does this mean we no longer need to attend to the destiny of

women’s refusal before the law? This article will consider these

questions in relation to the framing of refusal in a recent Australian

sexual assault trial. I will suggest that a poststructuralist feminist

strategy might turn to the political process of recontextualization that

attends such utterances, in order to contest the institutional rewriting of

rape as romance.

keywords rape, consent, poststructuralism, iterability, feminist theory,

language

What consequences do poststructuralist theories of language have for

feminist strategies that address rape? In particular, what might be the fate

of attempts to secure the meanings of certain words uttered by women in

this context, such as ‘no’? Is it possible to bracket off such speech acts from

the agon of the juridico-linguistic domain in a way that enables ‘no’ to

indeed mean ‘no’ in a manner that short-circuits all contest? On the other

hand, if we agree that such contest is an irrevocable component of the ﬁeld

in which feminist struggles against sexual violence take place, does this

mean that we no longer need to attend to the destiny of a woman’s refusal

when she comes before the law? This article will consider these questions

in relation to the framing of a woman’s refusal in a recent Australian sexual

assault trial. I will suggest that the attempt to enforce the meaning of non-

consent in advance of the contexts in which it might appear is a kind of

necessary impossibility, a move which cannot eradicate the chance that

such meanings might go astray. But rather than simply afﬁrming this

ineliminable possibility from a poststructuralist perspective, feminist

strategy might return to the process of recontextualization that attends the

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Feminist Theory 5(3)

utterance of such refusal. In particular, the involution of ‘no’ with non-legal

structures (such as romance) alerts us to the fact that it is in the grafting of

one context to the next that we can identify a politics: one which produces

doubt about a woman’s testimony in the instance of rape.

The statement ‘no means no’ has been the fulcrum of anti-rape strategies

around the world. As a strap-line, it metonymizes a range of complex

feminist arguments about female autonomy in the context of heterosexual

sex. In particular, it rebuts an invidious and durable patriarchal proposi-

tion: the notion that women say ‘no’ when they mean ‘yes’ when it comes

to their desire. This argument relies for its force on a connection between

two supposedly distinct discourses: rape and romance. 1 While ostensibly

opposed to one another, these discourses join together in their staging of

refusal, with the ‘no’ of the allegedly coquettish woman indistinguishable

in certain institutional contexts from the ‘no’ of a woman resisting a sexual

assault. Historically, this has been particularly evident in the structure of

consent directions in rape law, in which a woman’s resistance could be

recoded as consent. 2 In this context, to insist that ‘no means no’ is to

contest a host of complex discursive assumptions about women, under-

taken at the level of language.

This strategy, however, has recently come under feminist scrutiny. From

the perspective of linguistics and conversation analysis, Celia Kitzinger

and Hannah Frith (1999) argue that requiring a woman to say ‘no’ to sex

actually contravenes the conventional ways that we perform refusal. Their

research shows that we rarely refuse an offer with a ‘no’, because to do so

transgresses established cultural codes of politeness. Instead, speakers in

a culture use a panoply of techniques when refusing, including delays,

palliatives and accounts (Kitzinger and Frith, 1999: 301). In this regard, it

is counter-productive for feminism (or the law) to require and encourage

women to say ‘no’, when this request actually contravenes accepted

cultural codes (p. 302). On this view, the phrase ‘no means no’ might

actually obscure and delegitimate the real work of refusal that women

actually perform in sexually violent situations.

This privileged feminist tactic has also been subject to critique from

another quarter. In an essay called ‘Sovereign Performatives’, Judith Butler

(1997) investigates the relationship between language and politics from a

poststructuralist perspective that takes account of the force of performa-

tivity. In particular, she considers the inﬂuential feminist critique that

provides the predicate for the proposition that ‘no must mean no’: Cather-

ine MacKinnon’s (1993) argument about the sexualized linguistic reversals

of pornography. For MacKinnon, pornography’s most pernicious effect is

its performative power to deprive the female subject of access to meaning-

ful consent, by interminably transforming that subject’s ‘no’ into a ‘yes’, at

the level of both narrative and image. But underlying such an argument is

a model of the subject, language and power that warrants investigation. As

Butler points out, MacKinnon’s argument relies on a discourse of sovereign

power, in which the subject is able to formulate an utterance and then make

it mean what it says, in a manner which draws a line of coherence between

intention, utterance and interpretation. In evaluating this view, Butler

Philadelphoff-Puren: The mark of refusal

245

(1997: 86) agrees that ‘when “no” is taken as a “yes”, the capacity to make

use of the speech act is undermined’. But she goes on to ask: ‘. . . what

might guarantee a communicative situation in which no one’s speech

disables or silences another’s in this way?’ Here, we have illuminated a

relatively unremarked condition essential to the operation of ‘no means no’

– that is, its enforceability.

For Butler, this condition is dangerous, and potentially inaugurates a

frightening form of the linguistic ﬁeld of politics. What police or power is

able to simultaneously recognize and enforce the efﬁcacy of such a refusal,

and what form might it take in daily life? Indeed, this kind of enforceabil-

ity would imply that ‘we’ – an unspeciﬁed group with a totalizing

hermeneutic power – are able to legislate the interpretation of particular

statements, uttered by women. Such a desire – which Butler implies

inheres in the feminist proposition ‘no means no’ – is anathema to her

understanding of the operation of the democratic ﬁeld, in which all utter-

ances are necessarily subject to the risk of going astray:

This risk and vulnerability are proper to democratic process in the sense that

one cannot know in advance the meaning that the other will assign to one’s utter-

ance, what conﬂict of interpretation may arise, and how best to adjudicate the

difference. The effort to come to terms is not one that can be resolved in antici-

pation but only through a concrete struggle of translation, one whose success has

no guarantees. (Butler, 1997: 87–8)

Here, the possibility that my statements (like ‘no’) might be the bearers of

ambiguous meaning, that they might ‘mean’ in ways that I cannot antici-

pate, is made congruent with the ﬂourishing of democratic life. On this

model, the feminist attempt to legislate lines of continuity and enforce-

ability between, for example, my intention to refuse, my expression of that

refusal and its interpretation, is ﬁgured as an authoritarian and anti-

democratic desire for univocal as opposed to equivocal or ambiguous

meaning. As Butler asks:

Are we, whoever ‘we’ are, the kind of community in which such meanings could

be established once and for all? Is there not a permanent diversity within the

semantic ﬁeld that constitutes an irreversible situation for political theorizing?

Who stands above the interpretive fray in a position to ‘assign’ the same utter-

ances the same meanings? And why is it that the threat posed by such an auth-

ority is less serious than the one posed by equivocal interpretation left

unconstrained? (Butler, 1997: 87)

What Butler stages here is an important contest between two theories of

language and meaning which has serious consequences for feminist

political strategy. Derrida’s (1988) discussion of the concept of iterability

underlies Butler’s arguments here about practices of interpretation and the

democratic ﬁeld. For Derrida, iterability is the positive condition of possi-

bility for language use as such; it designates the capacity of every mark to

be repeated (reiterated) in new contexts not governed by the intentions of

the speaker or writer. As Derrida (1988: 12) remarks, ‘This citationality, this

iterability is neither an accident nor an anomaly. It is that without which

a mark could not even have a function called normal. What could a mark

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Feminist Theory 5(3)

be that could not be cited?’ The possibility for this (re)citation in new

contexts is precisely the matter of contest in Butler’s discussion of porno-

graphic speech. As she points out, the feminist argument that ‘no means

no’ relies on a model of language in which the meaning of an utterance is

governed by the intentions of a sovereign speaker. Moreover, that meaning

will persist self-identically, in spite of the articulation of this utterance in

new contexts. In this way, the utterance (representing the speaker’s inten-

tions) will determine and enforce its own interpretation. Such a view

conﬂicts with the Derridean insight that every utterance must necessarily

be able to break with its original context if it is to be an instance of language

at all: ‘Every sign . . . can be cited, put between quotation marks; in so

doing it can break with every given context, engendering an inﬁnity of new

contexts which is absolutely illimitable’ (Derrida, 1988: 12). From this

perspective, there is no way in which the intentions (should they be recov-

erable) of the sovereign subject can govern the destiny of the utterance.

Insisting that they do is a moment of irredeemable moralism, 3 a moralism

that evinces a desire to avoid the democratic agon of political life (Butler,

1997: 95).

What are the consequences of this analysis for the problem of rape? Does

the concept of iterability mean that feminist strategies like ‘no means no’

must be abandoned as linguistically and politically impossible? From the

perspective of iterability, the possibility of a signiﬁer like ‘no’ being taken

up in a way that conﬂicts with the speaker’s putative intentions is inelim-

inable and internal to the possibility of uttering a statement in the ﬁrst

instance. As Butler (1997: 93) asks, ‘Is this political possibility of reappro-

priation distinguishable from pornographic reappropriation opposed by

MacKinnon? Or is the risk of appropriation one that accompanies all

performative acts, marking the limits of the putative sovereignty of such

acts?’ Such questions suggest that the possibility of transforming a

woman’s ‘no’ into a ‘yes’ is thus part of the general economy of iterability,

rather than a consequence of a particular form of politico-sexual organiz-

ation.

I want to suggest a number of responses here. First, if one takes the

concept of iterability seriously, then it follows that such a risk indeed

attends the production of every mark. But I think it is worth considering

the possibility that the general economy of iterability is nonetheless strat-

iﬁed by speciﬁc modes of recontextualization, including those organized

along the axis of sexual difference. In the context of rape, ‘no’ is not just

any word, but rather one that concentrates a host of patriarchal forces.

Regarding acquaintance rape in particular, I would argue that a woman’s

articulation of refusal is not subject only to the general possibility of iter-

ability, or ‘a concrete struggle of translation’ (Butler, 1997: 88), a phrase

which implies an agon between subjects engaged in an ethical contest. On

the contrary, in a juridical context, instead of being deﬁned by a struggle

between equivalently positioned subjects, the interpretative ﬁeld is riven

by forms of domination. Here, the patriarchal claim that ‘no means yes’ is

not one interpretation among many, but rather a hegemonic one which

continues to be supported by some legal ofﬁcers. 4

Philadelphoff-Puren: The mark of refusal

247

In this context, while Derrida’s discussion of iterability might fatally

destabilize the traditional feminist treatment of the problem of refusal, it

might also provide the instruments for a new strategy. The process of iter-

ability – the positive possibility of repeating the mark – necessarily entails

the folding of the mark into new contexts. As he comments, ‘[t]his does not

imply that the mark is valid outside of a context, but on the contrary, that

there are only contexts without any center or absolute anchorage’ (Derrida,

1988: 12). In this respect, the repetition of the mark is necessarily subject

to ‘an incessant movement of recontextualisation’ (Derrida, 1988: 136). In

the context of rape and non-consent, it is at this point that I think a produc-

tive feminist intervention can be made, one which does not undertake the

impossible attempt of bracketing off the word ‘no’ from the politico-

linguistic ﬁeld. No feminist strategy can eliminate the ineliminable

opening that inheres in each mark, each utterance. Indeed, as Butler points

out, this opening is the condition of the emergence of ‘politically conse-

quential re negotiations of language’ (Butler, 1997: 92, emphasis in original)

which we could hardly hope to discard.

What I want to suggest here, however, is that a non-moralistic feminist

inquiry might still work with this ineliminable opening and continue to

engage critically with the distinctly political fate of women’s sexual refusal

by investigating the process of recontextualization in the instance of rape.

Such a move requires attending to the ‘total speech situation’ (Austin,

1976: 52) in which such a refusal takes place. When women bring a claim

of rape before the law, such utterances of non-consent do not face an open

ﬁeld of democratic contest, but rather a highly regularized and over-

determined one, since all such utterances take place in a context already

cross-hatched by power, genres and discourses. As Derrida (1988: 131)

comments, ‘The question is not whether a context is implied (it always is)

but which politics is implied in such a practice of contextualisation’. From

this perspective, it is worth investigating the politics of recontextualiza-

tion as it actually takes place, using the example of a recent Australian

acquaintance rape trial, R v. Hughes . 5 In particular, I will examine the fate

of the complainant’s non-consent and the techniques by which it is

vanquished. In this case, the necessary opening in the mark of refusal (its

equivocality) is subject to a trenchant institutional over-determination

which will be fatal to the complainant’s testimony.

R v. Hughes concerned a very violent sexual assault which took place in

Queensland, Australia. The defendant and the complainant were both

working on a horse ranch on Magnetic Island. The complainant was a 20-

year-old German back-packer. Over the course of ten days, they spent a lot

of time together, working, eating, giving each other massages and talking.

According to the defendant, their relationship was romantic. It was, he

said, ‘. . . a two way thing. We had become fairly interested in each other.

She started pursuing me a bit and I started pursuing her a bit. We enjoyed

each other’s company and wanted to spend as much time together as we

could’ (p. 290). In one exchange, after only four days, the defendant told

the complainant that he loved her, which she rejected by saying ‘I don’t

love you and I don’t want to do anything with you’ (p. 78). The

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