Janet Halley, the Royall Professor of Law at Harvard University, and formerly a professor of English at Hamilton College, gave a lecture titled "Define and Punish: New Feminist Reforms in the 'Law in War'" on March 1 to a large audience in the KJ Red Pit. Halley spoke about the reforms on war-time rape law that feminist legal activists have pressed for in international law, and outlined three dilemmas she believes feminists must face in regard to this issue. Her lecture was sponsored by the department of women's studies, the Kirkland Endowment, and the Dean of the Faculty.
Halley, who has a Ph.D in English and taught in that department at Hamilton from 1980 - 1985, said that she tries to bring a literary analysis dimension into legal discussions in order to shed light on the discourses and ideology at play. To this end, she grounded much of her discussion about legal reforms in war-time rape around A Woman in Berlin, the memoir of a woman in post-World War II Berlin who is raped by the conquering Russian soldiers. The ambiguity in the narrator's story about war-time rape and struggle is important for thinking about the many ambiguities that exist in issues of war-time rape and the international law that seeks to punish it.
Particularly since the wars and humanitarian crises in Bosnia-Herzegovina and Rwanda in the 1990s, Halley said, feminist legal activists have sought to place reforms into the international laws on war that would address war-time rape and sexual enslavement. They have been successful in effecting some changes in the agreements and statutes of such bodies as the International Criminal Court. Halley said, however, that there are three great dilemmas that continue to face feminists when it comes to international law on war-time rape.
The first dilemma is what she calls the "war rape antinomy," or the debate over whether the focus and goal of international law should be on addressing war-time rape or the everyday rape of women around the world. While feminist legal activists have been focusing on reforms in the international law on war, many feminists see this as a way to create changes in domestic rape law as well, Halley said. The debate over whether war-time rape and sexual enslavement are continuous or discontinuous with other forms of sexual violence against women that occur on a more regular basis stems from a larger, unresolved debate in feminism about the nature of sexual violence. Many feminist legal theorists, such as Catherine MacKinnon, have argued that all forms of rape are fully continuous expressions of the eroticization of male domination over women and express a concern that focusing so intensely on war-time rape portrays the everyday rape as a "lesser" kind of rape.
Even MacKinnon, however, has later wavered in her understanding of the nature of war-time rape. After the war in the former Yugoslavia, MacKinnon said that war-time rape is a continuous but still distinct form of violence against women. Critics of this position have said that perhaps this apparent uniqueness of war-time rape is merely a product of the usual invisibility of the rape of women throughout human history. The nature of war-time rape as distinct or continuous, Halley said, is still a topic of great debate among the very feminists who are advocating for reforms on the international law surrounding it.
The second dilemma Halley discussed is what she called the "war-time killing/war-time rape antinomy." We often hear various expressions of the trope that rape is "a fate worse than death," Halley said. This is not a clear-cut expression of the experience of women who have been raped in war time, however. The memoirist in A Woman in Berlin certainly does not express that attitude toward her multiple rapes, Halley said. The most negative emotional experiences she has in the novel are not her rapes, but other events which relate to the death and struggle that surround her. While there can be disagreement over whether the memoirist truly feels this way, or is in denial about the horror of her experiences, the story portrays the uncertainty of the hierarchy of rape and death for victims, Halley said. This uncertainty is echoed in the experiences of women in Bosnia-Herzegovina, she continued. After the war in the former Yugoslavia, feminist legal activists focused on prosecuting and punishing the mass rapes of women, sometimes putting the simultaneous mass killings in the background. Not all women in Bosnia-Herzegovina appreciated this representation of their experience, and were also bothered by the marking of the victims primarily as "raped women."
Despite this ambiguity, Halley said, the response of feminist legal activists to the situation was highly patterned, with much more emphasis put on rape and sexual enslavement as war crimes than on mass killings and genocide. There was an effort to move rape and sexual enslavement up the "hierarchy" of international war crimes law, as well as an effort to make war-time rapes easier to prosecute. This leads to the question of how visible and prominent war-time rape should be in the international legal proceedings following war. Making war-time rape too significant or narrow of a crime could make those reforms too difficult to transfer to domestic rape laws, as many feminists want to do. Halley also warned of a larger problem that she does not think feminists are thinking about – the fact that emphasizing war-time rape as a visible, horrible war crime could actually further weaponize rape and increase the incidence of it in future conflicts. Feminists often don't see how criminalizing certain acts could add to their symbolic power and actually make them more likely in the future.
Halley also discussed the problems presented by the complex issue of coercion and consent in war-time rape laws. At times, courts have held that for a combatant to have sex with a civilian from the opposing side is almost always rape, even if there may be some evidence of consent, because of the extremely coercive circumstances. This has several upsides if you're concerned about war-time rape as a distinctive and unique occurrence, in that it protects women victims from extended questioning and lowers the evidentiary requirements of prosecuting a rape. If you consider war-time rape part of a larger rape continuum, however, this can be problematic as it spectacularly criminalizes war-time rape and coercion, as opposed to everyday rape and coercion. This legal structure also legally removes women's ability to consent to sex with the enemy if they want.
The final dilemma Halley addressed was what she called the "sexual and ethnic domination antinomy." In the aftermath of the war in the former Yugoslavia, for example, Serbs were portrayed as a distinctively evil group because of their war-time rapes of Bosnian women. The domestic anti-nationalist feminists in Bosnia-Herzegovina, however, did not want to see the violence against women in ethnic terms, as it would merely reinforce the nationalist hatred that had started the war. This raises the question of whether post-war prosecutions of war-time rape will also be "playing the law of the victor," Halley said. The ethnically-focused view of war-time rape can also often enforce the separation between ethnic groups, Halley said, portraying any sex between the groups as an automatic war crime. In the discussion of ethnically-based war rapes, Halley said, there are "creepy moments of complicity with ethnic and nationalist divisions."
In conclusion, Halley said that feminists have to recognize and address these dilemmas in the international law of war-time rape. These dilemmas are closely related to the larger issues of legitimacy in international law and the new form of "governance feminism" that is invested in international governance structures.
After her remarks, Halley answered many questions from students in the audience. During her visit to Hamilton, Halley also met with students and faculty at several other times, including a lunch sponsored by the Career Center for pre-law students.
-- by Caroline Russell O'Shea '07
