TOWARD A SOCIO-LEGAL THEORY OF MALE RAPE.

• Author: Alyagon-Darr, Orna

INTRODUCTION 344 I. A THEORY OF MALE RAPE 346 II. COMPARATIVE REVIEW OF THE COMMUNITY AND PRISON 353 A. Community 353 B. Prison 360 III. A NEW FRAMEWORK FOR THE ANALYSIS OF MALE RAPE 367 A. Community And Prison Rape: Discursive Differences 367 B. Common Themes 368 1. Otherness 369 2. Masculinity and Sexuality 371 3. Power 375 C. Missing Themes 378 1. Consent 378 2. Race 384 3. Female-on-Male Rape 386 CONCLUSION 388 INTRODUCTION

This Article seeks to carve out a new theoretical space for the analysis of male rape, (1) a phenomenon that has long been neglected by legal and jurisprudential scholarship. (2) Although in recent decades research has paid increasing attention to male rape, significant gaps in the literature remain regarding sexual violence against men. (3)

Our theorization of male rape unsettles customary perceptions of rape, most notably the centrality of consent in rape discourse. The Article shows that although male and female rape myths are distinct, they are upheld by similar paradigms of gender. The Article focuses on male rape, but it advances a broad theory of rape and gender.

Part I reviews the main attempts in the literature to theorize male rape. Parts II and III introduce a literature review of male rape in the community and prison settings, examining its prevalence and characteristics; the relationship between the abuser and the victim; the characteristics of victims and perpetrators; and the rape (e.g. as use of violence). We chose these two settings because of their contradictory nature. The community encompasses varied daily situations in the spheres of leisure, cultural activity, and social gatherings, which are not exclusively male and do not involve a formal hierarchy or power relations. Prison is a "total institution" characterized by power and control relations. (4) It includes only male inmates and is masculine in culture. (5) The Article collates the various studies on male rape in these two settings, classifies the main elements of male rape in these settings, and points to the interrelations between the various scholarly works on the topic.

Based on a meta-analysis of the literature on the two settings, we developed a sixfold framework containing three recurring themes (otherness, masculinity, and power) and three missing themes (consent, race in the community setting, and female-on-male rape). Part IV delineates the sixfold analytical framework designed to advance the integration of the growing field of male rape study. The framework supports common language and theorization around the phenomenon of male rape.

One of the three themes that is missing in the research on male rape but is omnipresent in the sexual violence literature is consent to sexual relations. Consent, probably the most discussed aspect in current theories of female rape, (6) is hardly addressed with respect to male victims. This novel finding indicates that despite the growing scholarship on male rape, considerable aspects of this phenomenon remain invisible in legal research on sexual violence. The second missing theme is the racial aspects of male rape in the community setting. The third theme concerns female perpetrators of male rape.

The Article demonstrates that male and female rape myths, although distinct, are upheld by broadly similar and interconnected ideologies of gender and sexuality. The current focus on consent in the rape scholarship and law, and the relative absence of such discourse on the subject of male rape, illustrates the limitations of theories of both male and female rape. We hope that this Article will shed light on the marginality of male rape, suggest a theoretical framework for male rape, and contribute to a general and broad conceptualization of sexual victimization.

1. A THEORY OF MALE RAPE

   Until recently, male rape was often described as a marginalized and neglected area of study. (7) Some settings of male-on-male rape, such as prison, received scholarly attention as early as the first half of the twentieth century, (8) but research on other settings, such as rape of males in the military, in the workplace, or in the community, was scarce until the beginning of the twenty-first century. (9) Furthermore, most of the scholarship about male rape was conducted in disciplines such as criminology, sociology, and psychology, whereas legal or jurisprudential writing is scarce and hardly comparable to the vast literature on the rape of females. (10)

   The general dearth of academic literature on male rape echoes the wider cultural, social, and legal invisibility of this phenomenon. The common view of rape identifies perpetrators as men and victims as women. (11) This "female-centric" view does not acknowledge or recognize the phenomenon of male rape, which has remained hidden from the public eye and was socially and legally marginalized. (12) In 2011, Bennett Capers highlighted the social silence surrounding male rape and argued that it permeates legal scholarship about rape. (13) His work demonstrates the significance of including sexual victimization of men in the broader theory of rape. The invisibility of male rape was reinforced by rape myths (14) that deny or belittle the possibility of sexual assault of males. (15) Such myths include: "men cannot be overcome by force," "men can always defend themselves," "men cannot be raped by women," and "male-on-male rape is about homosexuality." (16) The acknowledgment of male rape challenges dominant perceptions of men's sexuality and societal understanding of masculinity and femininity. (17) The perception of men as vulnerable victims who do not dominate the sexual interaction contradicts the female-centric model of sexual victimization that currently serves as the central model for the analysis of rape. (18) Capers claims that male rape continues to be invisible to feminist, queer, and criminal law scholars, as well as to legal scholars who write about the plight of Black men in the justice system. (19)

   The literature has pointed out several settings of male rape, but others remain hardly explored. Literature on prison rape and media coverage of male rape looms large while little has been written about male date rape or male rape in the sports or entertainment industries. A great deal has been written about the rape of boys, and less about the rape of adult males in community settings. (20)

   The growing literature is also inconsistent in the description and theorization of male rape. Despite growing empirical research, including national surveys, neither the definition of male rape nor its prevalence is clear. (21) Ruth Graham noted that even a basic estimation of the prevalence of male rape remains challenging because research "is so varied in its estimates and methodologies that it would be foolhardy to attempt to put a figure on the extent of the problem." (22)

   The fuzzy image of the phenomenon of male rape generates theoretical and practical difficulties. There is no coherent or inclusive theorization. Different settings and scenarios of male rape are analyzed separately by the diverse scholarship, based on conflicting facts and evoking contradictory themes. Academic writing about prison rape, for example, highlights elements of physical violence and relations of power that echo the "real rape" paradigm, (23) whereas in the research focusing on the gay male community, the paradigm of acquaintance rape is the prevalent one. (24) Neither paradigm necessarily represents the reality of male rape accurately.

   Conversely, the scholarship on female rape has produced solid theories that shape the analysis and social discourse of female rape and also affect policy. The most prominent currents that contribute to the analysis of sexual violence are the radical, liberal, and post-feminist theories. (25) By contrast, the topic of male rape still lacks a coherent theory, (26) although several attempts to offer integrative analysis should be acknowledged.

   One attempt to create an integrative framework worth mentioning was made by Noreen Abdullah-Khan, who reviewed various theories on sexual assault. (27) While her goal is to offer explanations for the occurrence of male rape, and the empirical part of the book is dedicated to male rape, her theoretical survey is not male rape-specific. Graham and Claire Cohen also attempted to offer a broad theory of male rape. Although differing in their intellectual perspective, both focused on male victims. Cohen uses a Foucauldian lens to explore the construction of male rape in discursive practices in the media and the audiences' internalization. (28) She concludes that male victimhood is constructed by the deployment of traditional rape myths. (29) Cohen argues that a feminist approach that considers rape as something that men do to women is self-defeating because it reinforces rape myths based on the image of the "ideal victim." (30) This type of construction of male rape resuscitates myths that have been discredited in feminist scholarship and shores up hegemonic constructs of masculinity and the patriarchal power grid, to the disadvantage of all victims of sexual offenses. (31)

   Graham implies that, since the victimization of men challenges hegemonic perceptions of male sexuality, the phenomenon of male rape is a good case study for the development of a general theory of sexual assault. (32) She explores how academic literature constructs an ideal type of credible male victim by reference to social norms of sexual difference, sexuality, and hierarchies of sexual harm. Graham further argues that sexual victimization of men is perceived as worse than that of women and that gay victims are constructed as less legitimate than heterosexual ones. (33) She calls for an understanding of sexual assault that will not privilege some victims over others. (34)

   Socio-cultural perceptions of harm attribute greater harm to some harmful acts than to others. (35) The perceived level of harmfulness relies on...