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  • Vulnerability after Wounding:Feminism, Rape Law, and the Differend1
  • Rebecca Stringer (bio)

It is in the nature of a victim not to be able to prove that one has been done a wrong.

—Jean-François Lyotard, The Differend, No. 92

In his book The Differend, Lyotard proposes a unique theory of the victim as one who has suffered a wrong that is not presently recognized in law and exists instead as a differend, or a form of suffering that cannot be phrased in a shared idiom. Where “vulnerability” refers to the ability to be wounded, Lyotard’s theory of the victim points up a second-order vulnerability: the ability to be wounded and to then have that wounding effaced, in language, by others, by the law. In this article I draw on Lyotard’s theory to think about feminist efforts to reform rape law and ameliorate its effacement of various forms of rape. Though Lyotard does not discuss rape law, its notoriously attenuated codifications of “real rape,” which serve to exclude certain forms of rape from law-worthiness and recognition, provide powerful examples of the scenario of effaced suffering Lyotard sought to illuminate in The Differend. Rape law is replete with differends, and, accordingly, feminist efforts to reform rape law correspond to the kind of political work Lyotard describes as “bearing witness to the differend”—political work that endeavors to counter the linguistic, cultural, and legal effacement of particular forms of suffering, through the invention of new idioms that give suffering visibility.

In using Lyotard’s theory to think about feminist anti-rape politicizations, my aim is to challenge a currently dominant criticism of these politicizations as excessively and counter-productively focused on women’s vulnerability to rape. Since Sharon Marcus’s influential essay “Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention” (1992), many interlocutors in feminist debates about gender, vulnerability, and the politics of eliminating sexual violence have followed Marcus’s argument that feminist rape law reform efforts are counter-productive, because, in the effort to make various forms of rape socially and legally visible as wrong, they merely reinscribe patriarchal constructions of femininity as [End Page 148] embodied vulnerability, perpetuating a sexist linking of femininity with victimhood rather than agency.3 As Lisa Vetten has recently summarized, “Emphasizing only the aftermath of rape, Marcus argued, is not an effective political strategy because it accepts that women will be raped and are rapeable” (269). Marcus’s alternative “rape prevention” approach suggests that a better answer to the problem of rape lies in positive counter-images of women as agents who are capable of preventing rape. In Vetten’s words: “An emphasis on prevention […] declares that women are not for raping—particularly when women themselves take preventive action” (269).

In this article I challenge the assumed progressiveness of this shift toward “woman-as-agent” constructions in feminist anti-rape politics. Using Lyotard’s theory of the differend, I clarify that 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. Rather than being new to history or loaded with nascent feminist promise, woman-as-agent constructions, I argue, have been essential to the patriarchal differends of modern rape law, underpinning its use of victim-blame to efface various forms of rape. My analysis shows that rape law typically figures femininity not as embodied vulnerability but as responsible agency and never more so than in the current neoliberal era of privatized social risk, where women are expected to align with an ideal rape-preventing subject. Where critics of feminist rape law reform efforts deride these efforts as complicit with the carceral politics of neoliberalism, I point out that agency-oriented feminism supports neoliberalism’s equally problematic responsibilization of would-be crime victims and reflects the central theme of prevention in neoliberalism’s distinctive approach to governing crime. Demonstrating that not all images of women as agents are progressive and liberating, my analysis suggests that the real ethical problem confronted by feminist anti-rape politicizations—a problem that is intensified in the era of neoliberalism—is that of...

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