Gender, sexuality, and power: is feminist theory enough?

• Position: Why a Feminist Law Journal? - Panel Discussion

1. EDITOR'S NOTE: AN INTRODUCTION

   What are the boundaries of feminism? What is the relationship between feminism and non-feminism?

   In the following dialogue, four authors critically examine how to describe feminism and what it can and cannot do, particularly with regard to sexuality. The authors use the Texas Supreme Court case Twyman v. Twyman, (1) involving divorce, sadomasochistic sex, and a claim of emotional distress, as a focal point to explore how feminism deals with gender, sexuality, and power, and whether it does so sufficiently. The roundtable discussion revolves around Janet Halley's radical suggestion that not only is feminism not enough, but that we should "Take a Break" from it in order to see the issues feminism does not address as well as the effects of a feminist perspective.

   In the next Part, Brenda Cossman lays the groundwork with a synopsis of the case. In Part III, Halley describes what she sees as essential elements of feminism, and uses the case to explore feminism's costs and shortcomings and to support her assertion that it would be a good idea to "Take a Break" from it. In Part IV, Cossman challenges Halley's claim that "Taking a Break" is the only or best way to analyze sexuality, noting that feminism is a strong tool for analyzing gender and that feminism benefits from the critiques of its limitations. In Part V, Dan Danielsen uses the case to offer his own description of feminism in contrast to both Halley's and Cossman's. He focuses on the practical political project of each strand of feminism, highlighting their varied goals and examining the costs and benefits of the proposed analytic strategies in the context of real political choices. In Part VI, Tracy Higgins contrasts, critiques, and works to reconcile the positions of the first three authors. Part VII contains Halley's response to the discussion. Finally, in the last Part Higgins ties the conversation to the symposium's query.

2. BRENDA COSSMAN: SYNOPSIS OF TWYMAN V. TWYMAN

   In Twyman v. Twyman, (2) a wife sought damages for emotional injuries that she claimed she suffered because her husband induced her to engage in some sadomasochistic (S/M) bondage. According to the plurality opinion of the Texas Supreme Court, which described the S/M as "deviate sexual acts," (3) the wife was particularly susceptible to emotional harm because she had been raped at knifepoint prior to the marriage. One of the dissenting opinions in the case describes the S/M encounter in more consensual terms. According to Justice Hecht, it involved two or three occasions in which "the couple engaged in what they referred to as light bondage--tying each other to the bed with neckties during their sexual relations." (4) The encounters ceased when the wife told her husband that she associated the activities with the trauma of being raped. But the husband subsequently pursued his S/M desires elsewhere, and had an affair with another woman who shared his interests. When the wife found out about the affair, the husband said it was her fault and that the only way to save their marriage was for her to engage in S/M with him. She tried again, but found the activity to be "so painful and humiliating that she could not continue." (5) They divorced. The lower court ordered the husband to pay $15,000 for emotional distress. (6) The Texas Court of Appeals held that the wife could recover for negligent infliction of emotional distress. (7)

   The plurality of the Texas Supreme Court (8) refused to recognize negligent infliction of emotional distress, but did recognize intentional infliction of emotional distress. The court abrogated interspousal immunity to these actions and set out some guidelines for coordinating a simultaneous divorce and property action with a tort proceeding. (9) However, because the trial had proceeded on the basis of negligent rather than intentional infliction of emotional distress, the plurality remanded the issue for retrial.

   Two concurring and dissenting opinions by the Chief Justice Phillips (10) and Justice Hecht (11) would not have extended the tort of intentional infliction of emotional distress to married couples. The Chief Justice emphasized that divorce always involves some degree of emotional distress, and recognizing this tort would require the courts to draw "virtually impossible distinctions between recoverable and disallowed injuries." (12) Further, it would unduly restrict the court's discretion of taking fault into account in dividing marital property. (13)

   Justice Hecht emphasized that the sexual relationship was amongst the most intimate aspects of marriage, and "any breach of such an intimate and essential part of marriage may be regarded as outrageous by the aggrieved spouse and will often be the cause of great distress." (14) In Hecht's view, many other sensitive aspects of marriage can cause profound disagreement and result in the breakup of the marriage. If these disagreements and distresses become actionable, "tort claims will be commonplace in divorce cases." (15) Moreover, the inquiry required would simply require "too great an intrusion into the marital relationship." (16)

   A third dissenting opinion by Justice Spector (17) would have recognized both torts of negligent and intentional infliction of emotional distress, and allowed the plaintiff to proceed on the theory of negligent infliction. Spector framed the conduct in this case and claims of emotional distress more generally in terms of the harms that men do to women, observing that most cases of emotional distress are brought by women against men. Spector thereby connected the recognition of the tort with the struggle for women's rights, citing authors who have critiqued the gendered nature of tort law and its marginalization of women's claims. Spector pronounced a strong indictment of the plurality's rejection of the claim for negligent infliction of emotional distress: "Today, when the widespread mistreatment of women is being documented throughout the country--for instance in the areas of sexual harassment and domestic violence--a majority of the court takes a step backward and abolishes one way of righting this grievous wrong." (18)

3. JANET HALLEY: TAKING A BREAK FROM FEMINISM

   Does feminism have an outside? Is there, or should we hypothesize that there is, something about the social world, something about justice, something about left ambitions, that need not be referred to feminism? Maybe so. I am here to sell you the idea that Taking a Break from Feminism is a good thing to do. (19)

   Of course there are many, many forms of feminism. The variety is quite staggering. But I notice some elements that are virtually essential to feminism as it is practiced and performed in the United States today. I could be wrong about these essential elements; and feminism could change so that these elements fade out and/or new ones become definitional. So in the spirit of offering an impressionistic description of current conditions, here are the essential elements of feminism in the United States today.

   First, to be feminism, a position must make a distinction between M and F. Different feminisms do this differently: some see men and women, some see male and female, some see masculine and feminine. While "men" and "women" will almost always be imagined as distinct human "groups," the other paired terms can describe many different things: traits, narratives, introjects. However a particular feminism manages these subsidiary questions, it is not "a feminism" unless it turns in some central or core way on the distinction between M and F.

   And second, to be a feminism in the United States today, a position must posit some kind of subordination as between M and F, in which F is the disadvantaged or subordinated element. At this point feminism is both descriptive and normative; it takes on the quality of a justice project while also becoming a subordination hypothesis. Feminism is feminism because, as between M and F, it carries a brief for F.

   If the essentials are this minimal, there are many many features of contemporary and historically important feminism that are optional, however much they appear to their proponents as indispensable. For instance, the register on which subordination should he noticed is seriously contested. For Catharine A. MacKinnon, the relationship is one of power, whereas for cultural feminism, it is one of ethical ranking. In MacKinnon's power theory, the eroticization of domination produces men and women, male and female, masculine and feminine, as domination and subordination, and this is bad because, however much the subordinated feminine might desire domination, she also longs for liberation from it. For cultural feminism, male or men's or masculine values have trumped those of femaleness or women or femininity and this is bad because women's values are at least as good as--indeed are usually understood in cultural feminism to be better than--men's.

   There are also profound disagreements within feminism about how to describe subordination. Later in this volume Katherine Franke and Mary Anne Case assess the debate that addresses childbearing, care work, and related matters. There are equally powerful debates on the place of sexuality in subordination. Countering MacKinnon's alliance with some cultural feminists to regulate heterosexual eroticism on the assumption that it is a key element in women's subordination and is always (or almost always or too often) bad for women, there have been powerful sex liberationist, sex radical, and more recently "sex positive" feminisms that understand sexuality to be a domain of "pleasure and danger" (20) to which women need untrammelled access. And there have been breakaway movements like the anti-identitarian "politics of sexual acts" and "queer theory" which seek alternative theoretical, social, and political modes of assessing the relationships between sex and power--modes in which M and F are not...