Rape is a Legal Construct

One of the most common experiences following sexual violation is not knowing whether what you experienced "counts" as rape.

If it does “count” as rape, how would that impact what you're socially expected to do about it? What strings are attached?

Do you have to cut them out of your life immediately? What if you love them? What if you rely on them for housing, income, healthcare, or care-taking? What if they rely on you? Do you have to tell someone? If you don't tell anyone, and they rape someone else, is it your fault? If you tell someone, and they get brutalized by police, or incarcerated, deported, or killed, is that your fault? What if it happens again, and you don’t react again? If you make the choice to endure it, is that a form of consent? Does that make it not count as rape retroactively?

If what happened to you doesn't “count” as rape, how would that impact what you're socially permitted to do about it?

Can you even tell anyone without it seeming inappropriate? After all, telling someone that you were raped is one thing, but who can you really tell about the vulgar details of "bad sex”? If it wasn’t rape, can it still be traumatic and disabling? When you can’t keep up with housework, and you have no reason to offer, what explanations will rush to fill that void? When you find yourself struggling to sleep, concentrate, remember things, and stay connected to loved ones— what does it say about you? If it isn’t rape, then is it your own fault?

The longer you wait to acknowledge something happened, the harder it gets. If you tell someone, won’t they wonder why you didn’t say anything sooner?

What do you do until you figure it out? How do you live your life when you're not sure whether or not you've been raped?

The gravity of the word “rape” is so great, the implications for our lives so massive, that it feels essential to be able to prove objectively that our experience fits the definition of rape before we tell anyone what happened. Unfortunately for all of us, this is impossible, because rape does not have one objective definition.

As Estelle B. Freedman documents in Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation, rape is a legal construct. It's a criminal charge that applies within specific political borders and can be redefined from year to year. Were you raped? You'll have to check your local legislation.

It's a profoundly unsatisfying answer, made increasingly infuriating by how narrowly defined it is in virtually all legal systems. In Trauma and Recovery, psychiatrist Judith Herman writes that most experiences of sexual violation are not represented by legal definitions of rape. She notes that, not only are legal standards for what constitutes coercion set impossibly high, but they vary based on social proximity “so that an act of forced sex committed by a stranger may be recognized as rape, while the same act committed by an acquaintance is not" (44). Thus, legal definitions of rape often have much less to do with the specifics of what happened and more to do with the survivor's relationship to the person they are accusing. The actual impact on the life of the survivor is completely absent from the definition of rape.

So, if the definition of rape has no relationship to the experience of violation, what is the basis of rape within criminal law?

The crime of "rape" in British law originally referred to violent theft. Legally, rape did not relate to any sexual act until the fifteenth century, wherein it conveyed the the theft of sexual rights over wives and daughters from patriarchs (Freedman, 3-4). Under this law, the crime committed was against the man who (through marriage or paternity) owned this sexual property. This is not mere etymology, but the foundation of the social construct of rape.

These laws did not account for the possibility of men to be raped. Let’s pause for a second and consider the implications here. In a patriarchal society, why would men not remember to grant themselves protection from violence under the law? Because rape laws have never been about protecting anyone from violence.

Under medieval British law, children could not be raped by parents or married women by husbands. If unmarried women were not considered “virgins,” if married women were not chaste, and if either could not prove that they had adequately physically defended the property of their own body, then it was the women at fault. Even when a man was ruled guilty of raping an unmarried woman, he could “repair” the situation by marrying her. If you break it you buy it.

Those who were legally capable of being raped have always been a minority. Thus, rape laws failing to account for a population clearly do not reflect a population's historical protection from being targeted by sexual force (according to their genital shape or for any other reason). Rather, exclusions from rape definitions reflect the needs of patriarchal economics in which sexual force resulting in threats to paternity qualified as theft of men’s property. The exclusion of men as possible victims from early rape legislation, then, demonstrates simply that the sexual rights of patriarchs were not conceived of as property within the patriarchal economy.

Freedman’s work in Redefining Rape traces rape legislation in the United States. She describes how settlers treated sexual access to indigenous women as part of the “spoils of war” (18). In the 1700s, there are records of Choctaw and Creek leaders condemning the sexual violation of their people by British colonies, as well as records of Spanish missionaries describing widespread sexual abuse as interfering with their efforts to convert native women to Christianity (18). In the 1800s patterns continued. Freedman writes, “When white miners in California failed to induce native women to have sex for money, the men used force. Even if women filed complaints, California law held that the testimony of an Indian was not enough to convict a white person” and when indigenous people physically defended themselves from this constant sexual violence, they were convicted and hanged or killed by groups of settlers (18-19).

The expansion of chattel slavery enabled a bottomless pit of racialized sexual brutality. Freedman references a study of a slave-trading company which found sexual violation of African women during forcible abduction and transportation across the Atlantic ocean was not only legally and socially permitted but was systematic and normalized as part of operations (19). Once in the Americas, enslaved women could not legally marry or testify in court against their legal “owners” and were thus widely understood as fully available for sexual violation (19). Freedman explains that “a husband’s forced sexual relations with his wife broke no laws, and like husbands, slave owners implicitly claimed this exemption” because enslaved African women legally “belonged to” their slavers rather than to their fathers or male partners (27). Freedman quotes one Antebellum lawyer arguing that sexual violation of an enslaved woman constitutes no greater crime than trespassing upon the property of the white person who enslaved her (27). Sexually violating enslaved people also directly benefited owners economically, because forcing enslaved people into sexual relations with owners or each other produced human capital—children born into chattel slavery (29).

During the decades between the founding of the United States and Civil War, for even a white child to persuade a jury that she had been raped “required a chaste past, a violent assault, and a valiant but unsuccessful struggle that culminated in penetrative sex but did not result in pregnancy” (27). The qualification of the experience not resulting in pregnancy might feel counterintuitive for a law structured around paternity, but persistent belief in this period that conception required both parties to orgasm enabled defense to argue that pregnancy proved consent in and of itself (26).

Freedman demonstrates that we can use rape legislation to trace the contours of how a society translates sexual control into property. The alterations of legal definitions follow shifting economic arrangements and cultural perceptions of what sort of sexual violation constitutes theft, and therefore what sorts of sexual control, within what social relationships, are being conceptualized as property that could be stolen or damaged.

We can apply this same analytical lens to rape legislation today just as easily as we can apply it to any historical period. Legislation around rape has not fundamentally changed. The most significant reforms to this legislation have been the formal abolition of chattel slavery and endowing single adult women property ownership over their own sexual decisions. However, both of these reforms come with quite substantial caveats.

After the legal abolition of chattel slavery, the US maintained agricultural, domestic, and sexual laborers as racialized and gendered underclasses subject to high levels of exploitation and trafficking through the deliberate exclusion of this work from legal labor protections. Imperialist violence pushes workers from the periphery into the core, and border policing enables the criminalization of these workers. Thus, many workers in these industries must accept any treatment under threat of incarceration and deportation. Sexual abuse of these laborers by employers and police is rampant, with virtually no recourse.

Mass incarceration, too, constitutes a major mechanism of racialized and feminized classing through sexual control. Black prison abolitionists have long noted that the systematic practices of pat downs, strip searches, and cavity searches all constitute sexual assault by any definition which would center the exertion of control over the subject's sexed body by the perpetrator and the subject’s experience of sexual violation (Angela Davis, Are Prisons Obsolete, 62-63). Denial of sexual autonomy is foundational to prisons. Incarcerated people face extremely high rates of sexual violence, are routinely denied access to healthcare that impacts their “sexed” traits (such as menstrual products, gestational care, and transition care). Even access to masturbation is policed—content deemed pornographic by guards constitutes an enormous fraction of censored materials.

As for free women being granted legal right over the "property" of her own sexual decisions, there are some caveats there too. The marriage contract is generally understood to be a permanent relinquishment of sexual rights by a wife to a husband globally, and countries that have criminalized marital rape did so very recently. The earliest country to criminalize marital rape was the Soviet Union in 1922. The United States legislation around this is still a patchwork from state to state. In South Carolina, for example, this is only criminalized when the assault involves a weapon or “violence of a high and aggravated nature” and the event is reported to police within 30 days.

Legal minors still do not have ownership over their sexual rights. Even as sexual violation of children by legal guardians became criminalized in the United States, sexual rights over children have never been given to the children themselves. Instead laws enable the state to legally stand in “as” parent. In this way, parental sexual control is maintained.  In the United States "many states offer a discounted criminal charge to perpetrators of child sexual assault who are related to their victims" (Ruby Andrew, 2006, "Child Sexual Abuse and the State: Applying Critical Outsider Methodologies to Legislative Policymaking" pg 3). In other words, family relation to a child makes their sexual violation a less severe crime.

Indeed, the enshrining of sexual control over children by parents is flourishing in US law currently. The gender enforcement apparatus is blocking access to youth healthcare such as puberty blockers, censoring sexual education, and requiring educators to report student gender nonconformity to parents. Access to contraceptives and the removal of “sexed” organs (breasts, uteruses or fetuses therein, testicles, vaginas, and so on) is heavily restricted even for adults.

Attempts to escape and survive sexual violence within the home often results in the survivors becoming criminalized. There is an organization in the United States called Survived and Punished focusing on this issue. On their analysis page, they explain:

"According to the ACLU, nearly 60% of people in women’s prison nationwide, and as many as 94% of some women’s prison populations, have a history of physical or sexual abuse before being incarcerated. Once incarcerated or detained, many women (including trans women) and trans & gender non-conforming people experience sexual violence from guards and others. Being controlled by police, prosecutors, judges, immigration enforcement, homeland security, detention centers, and prisons is often integrated with the experience of domestic violence and sexual assault. This is especially true for Black, Native, and immigrant survivors.”

The fact of rape as a legal regulation of property is also quite clear in legislation around human sexual contact with nonhuman animals. In "How Meat Changed Sex: The Law of Interspecies Intimacy after Industrial Reproduction" Gabriel Rosenberg shines light on the fact that, due to lobbying efforts from capitalists in the meat industry, laws against bestiality in the United States all contain explicit legal loopholes for animal agriculture.

I anticipate some readers will immediately grasp for some inherent difference between their notions of bestiality and the sort of interspecies sexual interactions that occur in the process of artificial insemination. However, to the animal experiencing a human body part in their vagina or anus (Rosenberg, 485), the particular justification for this behavior by human culture and law is both unknowable and irrelevant. Thus, we must contend with the fact that bestiality as a legal construct has no relationship to the experience of violation on the part of the animal.

Rosenberg systematically evaluates the content of these agricultural loopholes in bestiality law and rules out all sorts of plausible justifications for the exception until an honest material conclusion can be reached:

"Sexual abuse is not defined by the act alone, since the same act can be criminal in one context and merely agricultural in the other. Nor is it defined by the absence of consent, since meat animals are as incapable of legal consent as family pets. Nor is it defined by the presence of perverse intent on the part of perpetrator, since some laws recognize that such intents may be congruent with an act of husbandry. Nor, indeed, is it defined by the animal’s subjective experience of pain and violation, since injury, pain, and even death are commonplace in animal breeding, and swine and cattle are as cognitively capable of pain and trauma as cats and dogs. Instead, sexual abuse is defined exclusively by the nonrelationship of the sexual act to the reproduction of biocapital" (Rosenberg, 488).

I often find that structural forms of brutality are often nakedly revealed in how we discuss nonhuman animals. For example, eugenic ideas currently couched in rhetoric around “health” when applied to humans are instead discussed in terms of “pure breeding” when applied to domesticated non-human animals. In this vein, I believe the blunt economic logic dividing legitimate and illegitimate sexual interaction with animals revealed in bestiality law applies more broadly than we generally recognize. The construct of animality is incredibly porous, and any justification used to normalize the treatment of livestock can be (and has historically been) easily pulled for use against sufficiently oppressed humans.

In fact, laws relating to sexual abuse of animals, sexual abuse of children, and the lack of labor protections within agricultural labor directly converge: a legal guardian directing a child over the age of 9 to sexually interact with an animal would not be liable for prosecution under child sexual abuse statutes or bestiality law so long as the animal is classified as livestock and the action can be argued to constitute a part of agricultural labor (Rosenberg, 489-490).

The criminalization of (a minority of) sexually violent behavior has nothing to do with preventing experiences of violation, but instead emerges directly from economic interests. Criminal charges of rape, child sexual abuse, and bestiality, do not exist to protect vulnerable populations but to protect circuits of biocapital reproduction.

Criminalization of rape does not indicate any social opposition to the use of sexual control within a society. The construct of rape emerged from a piece of British criminal legislation that protected the property rights of a citizen. Gradually, the definition narrowed until it exclusively referred to a man’s sexual control over women and children (especially over their potential reproductive capacity). Though this legislation has transformed and is widely variable, it still exists to determine the rightful owner of someone’s decisions over the parts of their body which are socioculturally sexed and sexualized. The criminal justice system still enshrines a system of transferable and revocable sexual property rights, dependent on social relationships and positions of authority.

Rape represents the legal regulation of sexual violence for the maintenance of patriarchy, white supremacy, and biocapital accumulation. Understanding the function of the construct can help to make sense of what otherwise appears paradoxical.

Men who sexually control and violate women and girls are often more vocally and physically hostile about “rapists” than men who try earnestly to not abuse their position. Why? Because a sexually violent man’s desire to kill “rapists” is exactly the same as his desire to kill “home intruders.” In both cases, the fantasy is one in which he can use socially approved violence to protect his property.

Criminalization creates the social category of “criminal.” The legal construct of rape creates the social category of “rapist.” Sexual coercion is a behavior any person can engage in, but The Rapist exists in the collective imaginary as a type of person. The Rapist is a racialized, gendered, and classed archetype that exists to be the ideological load bearing pillar of the regulation of sexual power. Sexual control is something endemic to patriarchy, but “rape” is imagined as a crime committed by deviant Others who can be identified and expelled from social life.

When a marginalized group is referred to as “rapists” it functions as a call to identify and engage in violence against any member of the group categorically. A person committed to whiteness will speak of “rapists” in a similar tone of racialized disgust that they use for the words “looter,” “criminal,” or “thug.” Anti-immigrant sentiment often blends together claims of rape with other economic concerns—“they are stealing our” women, jobs, housing, taxes, and so on. Population-level accusations of sexual criminality always map to the denial or destruction of that population’s access to resources such as shelter and healthcare.

Israel’s widespread and systematic use of sexual brutality is uncontested even by the United Nations (notoriously a tool of maintaining imperial hegemony) who reported in 2024 that “specific forms of sexual and gender-based violence constitute part of Israeli Security Forces’ operating procedures.” Palestinians in Israeli prisons are routinely subjected to forms of sexual torture so severe they often result in death. Even settlers partake in sexual violence against Palestinians. A couple weeks ago (13 March 2026) a mob of around 20 Israeli settlers bound and sexually violated a 29 year old man in front of his children. And yet, when Israel manufactures consent for the genocide of Palestinians, they accuse Palestinians of being “rapists.”

We must contend with the fact that opposing the use of sexual control over others and opposing rapists are not the same. When we confuse these goals, we quickly find ourselves in reactionary company.

Carceral feminism is a term used by Elizabeth Bernstein in her essay “The Sexual Politics of the ‘New Abolitionism’” published in differences: A Journal of Feminist Cultural Studies in 2007. The “abolitionism” she refers to here is not the abolitionist movement led by Black feminist revolutionaries for the dismantling of the prison industrial complex, but rather the movement led by a coalition of NGOs, evangelical Christians, and secular liberal feminists with the aim of prosecuting prostitution and sexual labor trafficking.

Bernstein describes carceral feminism as emerging from a neoliberal framework “that locates social problems in deviant individuals rather than mainstream institutions, that seeks social remedies through criminal justice interventions rather than through a redistributive welfare state, and that advocates for the beneficence of the privileged rather than the empowerment of the oppressed.” (137) Carceral feminism utilizes the “human rights” model. Instead of women being understood as a sexgender class seeking collective liberation from social, economic, cultural, and legal oppression, women are characterized as individual liberal citizens victimized by individuals. Unlike other feminisms which identify institutions of the State and Family as central to maintaining the oppression of women, carceral feminism takes for granted the ideological construction of Family as a sphere to which women and children belong. In this framework, police have a duty to protect Families (implicitly: women and children to whom men have legally enshrined rights) from sexual damages by criminals.

This strand of neoliberal feminism derives much of its substance from previous white feminisms. The conflation of middle-class married white women’s subjugation with chattel slavery (rhetorically erasing the subjectivity of Black women entirely) is a constant trope appearing in feminist texts virtually as soon as enslaved people became legible to white women as a rhetorical object of oppression. For example, Mary Wollstonecraft’s 1792 text A Vindication of the Rights of Woman infamously used slavery as a metaphor to shock and engage anti-slavery Europeans, comparing middle-class white women’s labor being confined to the domestic sphere to being chained and caged, and equating socioeconomic coercion into marriage to being sold on an auction block.

Let us be clear here, even outside of the physical brutality endured by enslaved people, even disregarding the totalizing genocidal character of erasing enslaved people’s knowledge of their nations of origin and ancestors, even neglecting to account for the systematic destruction of enslaved people’s kinship structures, even when exclusively and solely comparing the legal right of men over wives and the legal right of those same men over enslaved people, their positions were starkly different. During the period of legalized chattel slavery, US and British common law included the principle of “coverture” meaning that the white male heads of households politically represented and governed over their wives, including their wives’ property and earnings (Freedman 7). This means that wives’ legal beings were subsumed under their husband’s citizenship, which is fundamentally different from the position of enslaved women who were literally legally considered property. White women participated enthusiastically in the slave economy, and far from coverture “cancelling out” their ability to own other human beings, it simply meant that any human beings considered her property (through inheritance, gift, or purchase) were considered the legal responsibility of her husband. The conflation of the conditions of free white women and enslaved Black women has always been, and will always be, a fundamentally white supremacist rhetoric.

Adding to this blatant disrespect of enslaved people by minimizing the legal realities of chattel slavery, white people began conflating the term “abolition” with movements for state prohibition and criminalization. In the 1870s many former abolitionists, who were nonetheless deeply invested in the project of whiteness, began applying “abolition” to policing the sex industry (Lewis, Enemy Feminisms, 67-68). In true white supremacist nature, these feminists amplified rhetoric insisting that sex work was even worse than chattel slavery. The articulation of this comparison reached its most bluntly racist form in the widely used postbellum term “White Slavery.”

Contextualized within this history, carceral feminism is a predictable evolution. Shifting the focus on labor trafficking from structural conditions enabling an underclass of exploited racialized labor to the specter of (implicitly racialized) deviant men engaging in sex crime has a clear material basis underneath the ideological rationalization: middle class imperial core white women benefit directly from migrant labor, and often are themselves employers of domestic workers. The desire to funnel migrant sex workers into domestic work, where they can be controlled by white women within the domestic sphere, is perhaps not a purely moral concern about labor trafficking of migrant women.

Indeed, as is noted in Angela Davis’s Are Prisons Obsolete? and Hugh Ryan’s The Women's House of Detention: A Queer History of a Forgotten Prison, prisons have long been used as a form of structural feminization, punishing women for incorrect or inadequate femininity through housing politically radical Black cis women (such as Assata Shakur) and trans women of all races in male prisons, and attempting to transform all those captured within women’s prisons into wives, mothers, and domestic servants. Davis (65) and Bernstein (“Carceral Politics as Gender Justice?” 250) both note how the neoliberal dismantling of state welfare coincides with an acceleration of women’s imprisonment both inside and outside the United States.

This racial divide in what constitutes a contemporary abolitionist politic is stark, as Bernstein notes:

“Pointing to the direct historical connections between the U.S. institutions of race-based, chattel slavery, convict loan programs, and the forced labor that occurs in contemporary prisons, feminists who are engaged in the prison-abolition movement (predominantly feminists of color who link their work explicitly to an anticapitalist and anti-imperialist agenda) argue that it is the prison system, not prostitution, that is paramount to slavery” (143).

While Bernstein’s discussion of carceral feminism focuses on the anti-trafficking portion of the carceral feminist movement, it's important to note that "anti-violence" and "anti-rape" organizing has proceeded in lockstep.

Though Freedman does not have the same Marxist analytical frame as Bernstein, her final chapter traces a clear process of neoliberal recuperation of feminist organizing against sexual violence:

“Originally nurtured by grassroots radical feminists, rape crisis centers began as alternative institutions run by volunteer collectives on shoestring budgets. To survive and meet the expanding demand for services, many of them applied for grants from local, state, and national government agencies. With funding came professionalization, as paid social workers replaced political activists. The movement increasingly focused on support services for individuals, rather than on a political analysis of violence. At the same time, demands for stronger enforcement of rape laws could [sic] play into the law-and-order climate of the Reagan era and beyond. Like suffragists who called for police authority for women, some feminists advocated the appointment of female police officers and female prosecutors [and] the expansion of funding for police services” (285-286).

Freedman mentions critiques of this movement by feminists of color. She specifically cites Angela Davis who highlighted that police assault Black women rather than protect them. Freedman also cites the group Incite! Women of Color Against Violence, whose 2001 statement on the federal Violence Against Women Act (VAWA) explained that its reliance on criminalization and policing had led to increased incarceration of people of color without decreasing rates of sexual and domestic violence (288). In the preface to The Revolution Starts at Home, Andrea Smith (the co-founder of Incite!) writes that even before VAWA, it felt impossible to question the anti-violence movement’s connection to the prison industrial complex, and difficult to even define it as a movement when it consisted almost entirely of service providers, NGOs, and legal advocates (xiii). By Smith’s recounting, the movement “had become so single-issue oriented that it did not even occur to most anti-violence coalitions to organize against police brutality, anti-immigration legislation, or military violence” and many programs justified directly supporting police, border policing, and militarism by presenting these as “solutions” to gender violence (xiii).

Getting people to understand police as the cause of sexual trauma, rather than a resource to prevent it, is made more difficult by carceral feminist portrayal of law enforcement as defenders of sexual virtue. In “Police Sexual Violence Is Hidden in Plain Sight” Anne Gray Fischer notes that “rape is considered a legal and legitimate tool of law enforcement” across the United States, particularly when enforcing “morality” laws against prostitution.

Terra Burns, one of the founders of an Alaskan activist group of people currently or formerly involved in sex trades, explains:

“It’s incredibly traumatic to be tricked into having sex with someone who stops in the middle and puts you in handcuffs and takes you against your will to be locked up in a jail cell. Women have told me that years later they still have PTSD symptoms when they see a police car.”

Of course, police often sexually violate workers just for their own gratification too. Miss Major, a well known trans activist and sex worker from the United States explained her learned strategies for surviving sexual violation from police: “you just position yourself so you can back away after. You never turn your back to them because then they can say you were trying to get away and do whatever they want” (The Revolution Starts at Home, 64). She explains that the women she worked with all learned to never call police even when experiencing domestic violence, because they never side with trans women.

In “Carceral Politics as Gender Justice? The 'Traffic in Women' and Neoliberal Circuits of Crime, Sex, and Rights” Bernstein outlines the many achievements of the carceral feminist movement, within the United States, at the borders, and in the imperial periphery. Domestic anti-trafficking policies have given license for unprecedented expansion of policing racialized populations involved in street-based sex trades, and prison sentences have extended from a few months to 99 years (253). These campaigns have been used to justify increased border policing, introducing gender-based restrictions on female migrants, and has resulted in migrant sex workers being deported “for their own protection” (253). The US has leveraged imperial power to strip funding from NGOs and even sanction countries with anti-trafficking justification. The dissemination of the carceral feminist project globally through the human rights model has allowed this reactionary political project to be framed as neutral “humanitarian concern,” leading to increased economic pressures to criminalize sex trades globally, resulting in heavy restrictions and policing of feminized (and especially transfeminized) people in the periphery.

It is here that we must return to Judith Herman’s Trauma and Recovery. I mentioned near the start of the essay that she critiqued the legal definition of rape. Herman wrote, “Women quickly learn that rape is a crime only in theory; in practice the standard for what constitutes rape is set not at the level of women’s experience of violation but just above the level of coercion acceptable to men” (44). When I first read this quote many years ago, I was taken with how she highlighted the tension between the experience of violation and socially accepted coercion. This tension is central to the difficulty of determining whether one’s own experiences “count.”

However, at this point, I view Herman’s claim about the law as completely backwards. Rape’s status as a crime is not theoretical, but foundational to the construct. The fact that rape law is more concerned with delineating what forms of sexual coercion are acceptable based on social relationships doesn’t mean rape is not a crime. It just means that the criminalization of rape is not actually a tool of liberation from sexual violence. The exertion of sexual control is not criminalized, and it never will be. Our entire economy relies on it. As feminists, we want to prevent the exertion of sexual control and violation to the point of traumatic impact. This can only be done by dismantling rather than aligning with institutional power.

This is not a nitpick of a singular phrase, but a demonstration of the underlying carceral feminist politic throughout Herman’s entire text. She cites Andrea Dworkin, Catharine MacKinnon, and Susan Brownmiller, and predictably reveals a patronizing view of women involved in the sex trades, a bioessentialist and implicitly transmisogynistic understanding of rape and patriarchy, and a foundational racism that goes completely unexamined. Herman repeatedly invokes the terms “slave” and “enslavement” in contexts so vague and devoid of specific historical example that they read more as thinly veiled metaphor she is stretching over descriptions of domestic violence experienced by white women. The closest she gets to actually acknowledging literal slavery is on page 132, but even here she is leveraging the topic of “the legacy of slavery” as a means to advocate for her carceral feminist project to reform (i.e. attempt to wield the power of) the legal system.

I draw attention to Judith Herman’s Trauma and Recovery as a carceral feminist text, not because it has nothing of value, but to the contrary, because her descriptions of the texture of trauma deeply resonated with me as a young survivor. She describes physical impairment caused by violation, characterized by lasting changes to physiological arousal, emotional affect, cognition, memory, and sleep (34-35). She describes how violation ruptures systems of meaning and destroys one's self-concept in relation to others (51). A central emphasis of Herman’s work is the epistemic injustice central to trauma in which survivors have difficulty articulating their experience and being understood and believed by others when they try (67).

She explains how these traumatic effects are often intentionally inflicted to establish and maintain relational power. If you want to disempower someone, it’s hard to think of a more effective strategy than doing something which disables them, destroys their relational selfhood, and renders them unable to tell anyone that you did it. Those who are traumatized by others exerting sexual control over them are less able to support themselves, less able to solicit support from others, and, even as they visibly suffer, they will experience the collective withdrawal of compassion as others begin to view them as incompetent, irritable, and self-destructive.

That I benefited from these insights do not negate the reactionary politics holding the passages together.

I know firsthand that her genuine insights about the impacts of violation feel, to a isolated uninformed survivor, as essential as food. The retroactive realization of the underlying reactionary project, then, begins to feel like a hook hidden in bait. Separating out Herman’s useful insights from her carceral feminist political project will hopefully spare others from the process of having to strenuously dislodge the gory barb from the soft tissue of their cheek.

Herman's analysis of rape legislation might have otherwise been an opening to deeper analysis about how the state regulates sexual violence and for what ends. Instead, she exemplifies Audre Lorde's description of "those women who still define the master's house as their only source of support" (1979). Herman is tantalized by the power of the of the psychiatric and criminal justice system, ignoring that isolated cases of leveraging patriarchal structures for the benefit of individual women does not bring actual change.

It’s worth mentioning that even in these isolated cases of legal victory, survivors are not given any resources or community support in the process. In fact, as a 2014 study found, third-parties are less likely to offer compensation to victims if they believe the transgression might be punished (Adams & Mullen, “Punishing the Perpetrator Decreases Compensation for Victims”). This means that the widespread perception that punitive justice systems are the only means of addressing sexual violence is itself a factor in deterring extensions of material support to survivors.

Consider Chanel Miller, who went through a grueling and dehumanizing legal process to seek justice against the person who sexually violated her while she was unconscious. In her memoir Know My Name, she writes of the shock of realizing that this system did not actually benefit her: “We’d gotten an arrest, a guilty verdict, the small percentage that gets the conviction. It was time to see what justice looked like. We threw open the doors, and there was nothing. It took the breath out of me.” Instead of community support, her trauma was used to expand the prison industrial complex through the passing of mandatory minimum laws, a practice widely understood to increase the disproportionate incarceration of Black people.

Herman frames the motivation to pursue prosecution as something achieved in "the third stage of recovery" for post-traumatic stress disorder, as a sign that the victim has reached the (apparently objective) understanding that "holding the perpetrator accountable for his crimes is important not only for her personal well-being but also for the health of the larger society" and is "part of a larger, ongoing struggle to impose the rule of law on the arbitrary tyranny of the strong" (115). Her framing of survivors who do not engage with the criminal justice system as not yet recovered implicitly casts these survivors as more mentally ill and in need of more psychiatric surveillance. She constructs her own patients as not understanding what is good for their own well-being and selfishly unconcerned with the good of the nation.

This position is quite disturbing, especially because she peppers disclaimers throughout about how little survivors get out of this process. She takes for granted that a survivor's "wishes for compensation... can never be truly fulfilled" and emphasizes the need for survivors to "come to terms with the fact that not every battle will be won" (115). Earlier on in the text Herman admits to an even bleaker reality: "women who have sought justice in the legal system commonly compare this experience to being raped a second time" (44). Here is the position of the carceral feminist laid bare: survivors must abandon hope of material support and submit to a legal system designed to regulate the use of sexual violence rather than prevent it.

There is much from this conversation that is useful and necessary in developing our politic of trans liberation.

Even if we experience an interaction as violating, we are not offered legibility of having been violated if the interaction itself is socially and legally permitted. Consider, for instance, being forced to hold up your hands while a stranger uses technology to look at your breasts and genitals under your clothes, in public, and then being forced to endure this person groping you before letting you pass. For many trans women, this form of sexual violation is a constant part of dealing with “security” when traveling. Who is being made to feel secure by this public sexual humiliation?

Transfeminized people’s overwhelming exclusion from protection under rape legislation globally should immediately indicate that the criminal system does not even regard many trans people as having sexual rights to violate in the first place. In fact, trans women’s sexual rights are constructed as so completely devoid of biocapital value that current rape legislation in some areas consider a woman’s failure to disclose her “sex” assignment before a sexual interaction, as “rape” (even if she was the one subject to coercion).

If we are imagining this legal metaphor wherein the rights to sexual control over someone are a property one can steal and/or devalue through damage, then the designation of rape being applied here implies an underlying logic wherein a man is being scammed because the woman he wanted sexual rights over didn’t actually have any. It reveals a ghoulish level of transmisogyny.

There is the base structuring of sexual interactions according to patriarchal economic arrangements. There is the layer of misogyny wherein men sexually interact with women (consensually or coercively) to advance social relationships with other men, thereby advancing status as a man. There is the layer of transphobia in which the mechanic of socially reproducing and enforcing sexgender assignment takes shape as a cisgender performance of sexualized disgust at trans bodies. And then, the transmisogynistic underbelly.

Consider men who dehumanize women as a sexual currency by which one accrues masculine value. They use a desirability politic to impress other men as a means of social and economic climbing. How do these men treat women with whom sexual contact does not advance his status, and instead immediately depletes his perceived masculinity? He treats her like she has wronged him by not having the sexual value he felt entitled to gain through contact. This is the animating patriarchal logic of laws which define failure to disclose sex assignment as “rape" as well as “trans panic” laws which release men from legal responsibility for killing women upon learning they are trans.

Even the use of “sex” as a classification structure masks sexual violence. The categories emerged alongside “scientific” racisms, eugenics, and other naturalization projects that invested in measurement as the main tool of meaning-making. Lena Eckert explains in Intersexualization: The Clinic and the Colony, “sexology as a newly developed science was concerned with the belief that certain socially disadvantaged groups of people were intellectually inferior by nature” (29-30) wherein the medical establishment assumed authority to erase any bodily diversity which threatened the coherence of attempts to scientifically naturalize the heterosexist patriarchal order through constructing “two fictional distinct body morphologies” (49-50).

The erasure of bodily diversity in the service of scientifically naturalizing sexgender classing involves a process of measuring body parts—especially but not exclusively the clitopenis—and then “correcting” the body for penile-vaginal penetrative sexual contact (56-59). One of John Money’s patients, Kiira Triea, recounted that at her first appointment when she was 14 years old, Money asked her if she wanted “to fuck someone” or if she wanted to “be fucked by someone else” (63). Often the deciding factor of sex assignment is made by whatever surgery the doctor finds easiest. As cruedly put by a well known pediatric urologist, John Gearheart, “it’s easier to make a hole than build a pole” (63), and thus for much of the history of intersexualization, most patients were assigned "female."

Doctors are legally able to use coercion, force, or even deception in controlling a child’s sexed traits, often impacting their health and relationship to their own body forever. Eckert explains that "prioritization of vaginal penetration over the capacity for clitoral stimulation is mirrored in the material effects of intersexualization” characterized by half a century of medical literature arguing for “amputation to deprive infants, children, and adults of their clitoris/phallic flesh for the sake of ‘esthetic’ genitalia and a ‘healthy’ psychological development” often leaving patients unable to experience orgasm at all (59). Alongside amputation of the clitopenis, the surgical creation of a vagina in intersexualized infants has prioritized “ability to accommodate a penis” rather than capacity for sexual pleasure (63), after which parents of the newborn are instructed to routinely dilate to prevent build up of scar tissue. These doctors are seemingly unconcerned with how forcing a dilator into their child’s body every day may impact the relationship between the parents and child, and the child’s psychological and emotional well-being (64). None of this is criminalized as rape, of course, because as we’ve established, the experience of sexual violation is unrelated to rape law.

When transphobic legislation demands disclosure of “sex,” what is literally being asked is the category printed on the legal certificate given to one's parents at birth which grants legal “custody” (in literal terms, the right to make decisions on the child's behalf). The inclusion of a “sex” category on this legal document suggests that rights over children’s sexual decisions is part of the legal property signified by the birth certificate.

Adults granted legal custody often exert the full extent of this legal power to prevent "their" children from making decisions about sexed and gendered traits and behavior, including how they dress, whether they cut their hair, how they talk, what hormonal medications they can access, what doctors they can see for what reasons, and whether or not they have any privacy.

When a child expresses a desire for bodily autonomy, the parent’s sexual rights over their children are threatened. When that autonomy is articulated in terms of transgender identity, the “irreversible damage” they fear is damage to their sexual property, i.e. their child’s sexed traits and reproductive capacity.

Parents of trans children often employ exactly the tactics outlined by Judith Herman in her chapter on captivity:

“Fear is also increased by inconsistent and unpredictable outbursts of violence and by capricious enforcement of petty rules. The ultimate effect of these techniques is to convince the victim that the perpetrator is omnipotent, that resistance is futile, and that her life depends upon winning his indulgence through absolute compliance. The goal of the perpetrator is to instill in his victim not only fear of death but also gratitude for being allowed to live… In addition to inducing fear, the perpetrator seeks to destroy the victim’s sense of autonomy. This is achieved by scrutiny and control of the victim’s body and bodily functions.” (77).

If we are to take seriously a feminist politic of preventing the exertion of sexual control and violation to the point of traumatic impact, then we simply must contend with the fact that most parents’ treatment of transgender children constitutes profound sexual abuse.

The accusation of child rape leveled at trans adults (via epithets such as “groomer” or “pedophile”) for behaviors such as writing picture books, reading to kids, teaching kids about healthcare options, or simply existing in public appears viscerally hypocritical in this light. However, critically approaching the rape construct can allow a clear-sighted view of what’s happening.

Books offering education about bodies and lessons about healthcare interfere with the sexual rights of adults over children. Telling a child that they should have rights over their own body is fundamentally threatening to an adult who does not want resistance. The public presence of trans people who survive into adulthood implicitly suggests the ability to refuse the parent’s sexual control. This is why the most politically active contingent of this demographic call themselves a “Parents’ Rights” movement.

The legacy of the carceral feminist movement helped to paved the way for exactly this politic of censoring libraries and criminalizing trans children’s healthcare. The collaboration between evangelical Christians and reactionary feminists to protect parents’ sexual rights over children is exactly where this white nationalist project was always headed.

We cannot rely on legislation and institutions as our means of safety. If we are to liberate ourselves, we cannot continue to accept these systems or their tools. We must defund them, dismantle them, and build alternative means of safety.

Morgan Bassichis, an author and performer with a history in prison abolitionist organizing for trans and intersex justice, has long cautioned against trans organizing falling in line with the carceral feminist project. In the essay “Reclaiming Queer & Trans Safety” they write about young trans people of color from Community United Against Violence and The Audre Lorde Project’s Safe OUTside the System Collective holding public conversations in December 2009 following the passing of the first federal hate crime bill in the US that included LGBTQ+ people as a "protected" group. Bassichis explains that organizers feared that the recent killings of two queer people of color, Jorge Steven Lopez Mercado in Cayey, Puerto Rico and Jason Mattison in Baltimore, Maryland, would be used to justify more state violence in their respective home communities (6).

In response to a pro-prison bill being lauded as an LGBT victory, they engaged in organized social reproductive labor to redirect political energy so it could not be recuperated to serve the imperial bourgeois. They contextualized their dissent within the larger context of the US laundering imperialism in Afghanistan, the US Gulf Coast, Haiti, Iraq, and Palestine with the language of “aid,” “security,” “safety,” and “justice.” We can learn from this organizing tactic and use versions of it in our local context.

Opposition to trans sexual trauma being used to justify the expansion of the prison industrial complex is an act of solidarity with those trans people currently being sexually tortured in prisons. Opposition to transphobic violence being used to justify border policing and imperialism is an act of solidarity with those trans people currently being brutalized by soldiers.

The state's designation of our sexgender according to legal assignment does not accurately describe our actual position as sexed/gendered subjects. This is not a "mistake" of how the state crafts its assignment process, but rather indicative that their legal designation itself constitutes a structure of sexgender classing. We might benefit from interacting with the legal construct of rape in a similar way. We can conceptualize the criminalization of rape, not as the innate truth of what sexual violation is, but as a legal mechanism regulating the bounds of what constitutes "legitimate" use of sexual control.

Our understanding of what constitutes womanhood and manhood directly challenge the state's definition, and our understanding of what constitutes sexual violation must challenge the state's definitions too. We can demand recognition of our experiences of sexual violation without needing to first know whether or not our experience “counts” to a legal system that exerts coercive sexual violence over us as a base function.

Perhaps something trans people can offer to this conversation is the simple reminder that we don’t have to structure the course of our lives around legal definitions. We don’t have to limit our imagination for what justice and healing can be.