【Written by Aarti Lamberg】

Nearly half of the world’s population is not regarded as citizens. Every day throughout the world women experience gender-based violence whether it be marital rape, sexual assault, rape as a tactic of war, domestic violence, rape within relationships, rape in conjunction with hook-up culture on college campuses, or the rape of children. This violence stems from the fact that women are not considered equal to men and therefore are not included in the definition of humanity or explicitly protected from sexual violence in international human rights documents. The subordination of women of all ages through various forms of sexual violence is permitted because of our global patriarchal societal practices. Men benefit from controlling women through sexual violence. This essay will argue that the reason violence against women is not considered a human rights violation is because women are not included in the definition of humanity as argued by Arati Rao and Catherine Mackinnon. There must be an understanding that the domestic violence that occurs in the private sphere is a human rights violation and that the private sphere is central to the way that states run. Therefore, governments and the international community must consider violence against women in the private sphere a human rights violation that is their responsibility. The protection and inclusion of women in the discourse and international human rights laws must be implemented and treated with paramount importance. The ramifications of ignoring violence against women will lead to its continuation and growing brutality in the home, workplace, educational institutions, and during times of war and conflict.  

Cranston declares that “a human right is something of which no one may be deprived of without a grave affront to justice” and a right that deserves the title of paramount importance is “the kind of deed that violates a right to life” (Cranston, 169, 171). Sexual violence certainly counts as a “grave affront to justice… and a violation of a right to life” because women are minimized to their sexual value, being beaten, murdered, assaulted, and raped both in the private realm and in the context of war in order for men to remain in power (Cranston, 169, 171). Until the international community acknowledges that condemnation of gender-based violence is of paramount importance and that women have a right to bodily autonomy, safety, and well-being, this monstrosity will continue. 

Women and the gender-based violence inflicted upon them are excluded from human rights doctrine. Phrasing violence generally “individuals qua individuals” and not outlining specific protections against gender-based violence demonstrates the patriarchal domination in the narrative of international human rights law (Rao, 511-512). Violence only committed against women is not documented in international human rights law because it is in connection to sex and home life which does not disturb humanity because humanity is currently man centered (MacKinnon, 527). Only when the violence that is inflicted upon women also happens to men will these crimes be acknowledged as an atrocity (MacKinnon, 527). “The notion that these acts violate women’s rights have been created by women, not by states or governments… out of a refusal to believe that the reality of [frequent and vicious] violation which we live in is what it means for us to be human- as our governments largely seem to believe” (MacKinnon, 528). The global efforts to end sexual violence inflicted upon women have emerged out of women’s dissatisfaction and intolerance for treatment as sexual objects. Rape has become globally desensitized because of its frequency in all forms and therefore there is an acceptance and deflection of responsibility in addressing the matter with the seriousness it deserves (MacKinnon, 534). The lack of recognition or proper human rights doctrine documenting rape highlights men’s complacency because of the personal sexual pleasure, monetary, and or political gains from systems remaining as they are currently in place. So long as men are creating international human rights law without including the protection of women, women’s demands will not be properly addressed (MacKinnon, 539). Each state has made justifications for turning a blind eye to the horrific violence occurring against women every day (MacKinnon, 539).  

Rao claims there is a gender blindness in international human rights law exemplified in the written protections against torture and cruel and unusual punishment (Rao, 511-512). Referring to the subject who is harmed only as he with no specific documentation of gender-based violence or the consequences of it explains why the harm done to women in the private sphere is not being addressed (Rao, 511-512). Consequently, violence against women specifically is not addressed in human rights documents, rather it is condoned. Only recently have women been the group to bring attention to this alarming dilemma and their efforts have been met with significant backlash of cultural and religious reasonings for the sexual domination of women. 

The subordination of women has been justified by cultural and religious explanations and has acted as a counter argument for the implementation of human rights that condemn sexual violence against women. This justification can be invalidated when considering that most religions and cultures have a golden rule to treat others the way one wishes to be treated. Dowry harassment is an example of a cultural practice that condones violence against women (Rao, 506). A man’s family equates a possible bride’s value to the money her family can provide for the dowry because in India a woman is defined as a “facilitator of wealth” when bringing in income to the in-laws’ home and “an economic liability” to her family in having to pay “to offset her worthlessness to parents and in-laws” (Rao, 506). A woman is minimized to her economic gain and loss, and if either party is disappointed by the outcome the woman herself is punished (Rao, 506). This harassment can result in murder and is an issue connected by “gender, ideology, socio-economic structures, and the patriarchal state” (Rao, 506). Dowry harassment is an obvious example of how sexual violence is culturally practiced and accepted. In addition to the common practice and acceptance of sexual violence, in many places women are treated as second class citizens to men.  

 In many countries today a woman exists under her husband’s legal person, and therefore a woman is only seen as a wife and not an independent person with rights of her own (Rao, 510). Women are blamed for the domestic violence they experience and are demonized if they speak against it (Rao, 510). This is made more complicated when we consider the global definition of marriage. The current global definition of marriage is that the husband has access to a wife’s body for “disciplinary and sexual purposes” (Rao, 510). This definition negatively impacts the recognition of gender-specific crimes such as marital rape or wife beating (Rao, 510). Rao states that even in the countries where women are seen as individuals there are significant legal complications that prevent justice from being served on a woman’s case of domestic violence against her husband (Rao, 510). According to these internationally accepted definitions (in terms of marriage), a woman is not legally recognized as a person and in many cultures, women are expected not only to serve men but also be under their control. The cultural practices that justify female sexual servitude and second-class status have resulted in permissible violence. 

The golden rule shared among many religions stating that one must treat others how one wishes to be treated and that inflicting violence upon others is morally wrong is a valid objection to the argument that creating laws to stop gender-based violence may infringe upon cultural or religious rights. MacKinnon contends that “the concept of ‘culture’ itself needs to be unpacked to reveal its structuring patriarchal power relations” (Rao, 514). Patriarchal power relations and government domination is practiced globally and while acceptance of women as people will cause various societal change depending on the state, a universal acceptance of women as man’s fellow human is the bare minimum that must first occur (and is achievable) in order to prevent the continuation of sexual violence. Through the lens of the golden rule, the international human rights community should not expect significant backlash in safeguarding women from violence in the private sphere especially considering the current minimal, but present protections against rape in the form of genocide or war in the public sphere.   

If rape and other forms of sexual violence against women are explicitly defined in both the public and private sphere, one can only hope that even the men who outlined original human rights doctrine and benefit from the current patriarchal structures may be motivated to enact change to halt the continuation of rape. MacKinnon describes rape that occurs publicly as torture and extermination (MacKinnon, 536). Throughout the history of the United States’ founding and on a global scale, there are examples of rape used as control in colonization and throughout imperialism. MacKinnon’s piece focuses on the mass sexual and general violence of Muslim and Croation women during the Serbian ethnic cleansing of the former Yugoslavia to exemplify how sexual violence against women contributes to war and genocide (MacKinnon, 526). “In this genocide through war, mass rape is a strategy. Muslim and Croatian women and girls are raped, then often killed, by Serbian military men, regulars and irregulars in a variety of formations” (MacKinnon, 531-532). A journalist reported “rape- death camps for Muslim and Croatian women and children [as well as the] making and use of pornography as part of the genocide. Women experienced torture, gang rape, and rape after murder” (MacKinnon, 529). Even the United Nations Protection Force, that was sent in by the international community to provide aid during this conflict, was reported to have raped and assaulted women, withholding resources and aid that they are required to supply (MacKinnon, 529). “There were reports of refugee women being forced to sexually service the UN troops to receive aid. A United Nations Protection Force commander accepted offers from a Serbian commander to bring him Muslim girls for sexual use” (MacKinnon, 529, 537). This “male bond across official lines” demonstrates that sexual violence against women is used in exchange for power and control and clearly emphasizes that women are seen as sexual objects for men to abuse whenever and wherever (MacKinnon, 537). Defining rape in explicit and brutal terms is necessary for global recognition of the crisis occurring not only in wars, but in the private realm as well. 

MacKinnon defines rape as genocide (MacKinnon, 534). “That means not only a policy of the pleasure of male power unleashed, which happens all the time in so-called peace; not only a policy to defile, humiliate, and demoralize the other side, which happens all the time in war; and not only a policy of men posturing to gain advantage and ground over other men. This is not rape out of control. It is rape under control. It is also rape unto death, rape as massacre, rape to make the victims wish they were dead. It is rape as an instrument of forced exile, rape to make you leave your home and never want to come back. It is rape to be seen and heard and watched and told to others: rape as a spectacle to drive a wedge through community, to shatter a society, to destroy a people. It is rape as genocide” (MacKinnon, 534-535). Rape is controlled and authorized as a method to traumatize and exterminate. Murder and rape quickly escalate “as the ultimate sexual act” (MacKinnon, 535). 

In the West there has been a distinguishment between rape and genocide. Rape is explained and minimized by isolating each occurrence (MacKinnon, 532). Via MacKinnon’s example, rape is somehow accepted as an inevitable part of armed conflict and isolated as one group raping another for ethnic, religious or cultural domination: like Serbian men committing mass rape upon Muslim and Croatian women (MacKinnon, 533). When rape is not seen as a form of genocide and each rape is seen instead as a separate act, it diminishes the level of atrocity (MacKinnon, 532). Rape is an “act to destroy a people” mentally and physically but “attacks on women, it seems, cannot define attacks on people” (MacKinnon, 533). Mackinnon argues, are women not also people (MacKinnon, 532)? The incapability of our international community to see women as people and make the connection that rape is a form of genocide explains the inability to take action to prevent and denounce it. Men commit sexual violence against women all the time for specific reasons or no reason at all other than the fact that they can. Justifying each publicly known instance of rape or mass rape attempts to disguise this global crisis of sexual violence against women whether in the public or private sphere.  

Rape that occurs during war has broader implications as it has been proven to lead to increased domestic violence in the private sphere (MacKinnon, 533). The war in Vietnam led to increased sexual violence in the United States when male soldiers arrived home (MacKinnon, 533). “Men’s domestic violence against women of the same ethnicity escalated- including their skill at inflicting torture without leaving visible marks. But sexual aggression against Asian women through prostitution and pornography exploded in the United States: American men got a particular taste for violating them over there” (MacKinnon, 533). MacKinnon hypothesized that this same phenomenon must have happened to Serbian women as well (MacKinnon, 533). The heightened sexualization of Asian women in the United States after the Vietnam war and the brutal account of increased sexual violence among women of all races should be a tragic enough factually based argument for enacting international policy to put an end to male domination and violence against women.  

The thinking and discourse of women must be connected to thinking and discourse of international law and politics (MacKinnon, 538). “The closer a fight comes to home, the more “feminized” the victim becomes, no matter what their gender, and the less likely it is that international human rights will be found violated, no matter what was done” (MacKinnon, 538). 

Women are not raped by governments but by individual men in what are considered isolated acts, therefore “most rape is left out” (MacKinnon, 538). This segues into the explanation of rape and sexual violence in the private realm.  

Martial rape presents a strong case as to the importance of readdressing human rights violations as they pertain to women (Rao, 519). Scholars previously have determined it an individual’s responsibility to speak against rape believing that it provides an individual with dignity and honor, but these scholars fail to recognize that if rape in all forms is not prioritized as a global form of control, manipulation and heinous violence, then the responsibility of global society to prevent it will remain nonexistent. So far rape has been very narrowly defined and analyzed in human rights discourse because even the men who drafted human rights documents for their fellow men benefit from sexual domination of their female partners (Rao, 520). “The subordinate status of women is presupposed and maintained by the power of the state. Legal, religious, and the customary definitions of the institution of marriage lay the groundwork” for acceptable acts like rape in the context of marriage (Rao, 520). The way men treat women in the public and private spheres mimic and reinforce each other. Therefore, to stop the brutal sexual assault against women, the private and public spheres cannot remain as separate as they are in human rights law currently.  

The separation of the public and private spheres has made them unequally valued and gendered even though men govern both (Rao, 515). “In liberalism, the state’s role in carefully creating and strenuously maintaining the realm of the private is mystified, The state structuring presence is disarmingly disowned. This mystification of reality is reinforced by the ideology of civil society, which simply does not acknowledge civil society’s very real division into gendered spheres of existence” (Rao, 515). The family is disconnected from the state because the state aligns itself with only public life, therefore holding no one accountable to what occurs in the private sphere. “When the very rights language that governs the public realm eloquently excuses itself from the private, analysis of the family as the site of struggle for rights becomes even more urgent” (Rao, 516). The state having excused itself from private life is the reason that women experience the most intense violence at home because they have been assigned to the private sphere where no laws exist about what is acceptable to occur, so men governing both realms are free to do whatever they please to their wife.  

Violence against women so often falls through the cracks because of the lack of recognition of abuse as a method of control in the home (Rao, 512). The way that torture and violence are written in international human rights documents is superficial, speculative, as in the assumption that torture and abuse happen only in conjunction with war or discrimination based on race or religion, but not solely on gender (Rao, 512). Rao argues that this blindness to gender-based violence is confusing considering that there is significant feminist literature and research proving that states have “developed a special agenda in the torture of women” (Rao, 512). Women are forced to occupy the private sphere via “manipulating social factors that are specific to women’s daily lives, such as religion, gender ideology and social roles” (Rao, 512). At the root of the issue of violence against women (as a means of control) is the global acceptance that women belong only in the domestic sphere, without full personhood and their purpose is to serve men and children (Rao, 512).  

The ‘natural’ or private sphere which women often occupy is deemed “separate and irrelevant to conventional relations of civil society” (Rao, 517). “In reality, the sphere of domestic life is at the heart of civil society rather than apart or separate from it” (Rao, 517). The only time a state gives up power is in the position of the family (Rao, 518). This is compelling because although women are primarily associated with the family in all other aspects, the rights language (in human rights documents and discourse) of families is not centered around women (Rao, 518). There is significant state power dedicated to maintaining the family unit (like marriage benefits in the United States). In the two spheres theory the family is known as the woman’s realm which becomes problematic if the woman is dissatisfied or attempts to escape that role (Rao, 518). This dissatisfaction or attempt to leave the role has economic and ideological consequences (Rao, 518). Domestic violence is currently embedded in the defining characteristics of family and produces gender inequity (Rao, 518). If marriage is defined in some cultures by a husband’s sexual access to his wife, then a woman who claims she is raped is condemned and blamed for resisting her familial duties (Rao, 518). In many legal situations, rape isn’t believed to exist in marriage because of the unspoken contract a woman may have agreed or been forced to agree to (Rao, 518). A woman attempting to flee domestic violence may be sent back to her family in the name of maintaining the fundamental family unit that is claimed to be so precious to state function (Rao, 518). Considering the economic opportunity gap based on gender it is difficult and even looked down upon in many places for women to survive on their own which is another reason many women unwillingly must survive abuse inside the family structure (Rao, 518). Analysis of the family is crucial before the analysis of “other areas of human activity” (Rao, 516). A rights framework in which the individual prioritizes their own needs and freedoms “relies on the false notion of the private realm.” The patriarchal framework that global society operates in has created these two spheres and “assigns paradigmatic privilege to him, even as it relegates another kind of human being to her paradigmatic secondary status.” (Rao, 516-517). 

The Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) was created for the protection of women’s rights, but it cannot be applied in the private realm and therefore does not sufficiently protect women (Rao, 513). The scholar, Theodor Meron realizes the violence against women in the private sphere but argues that state regulation of private realm may harm an individual’s freedom of “opinion, expression and belief because state regulation may result in overly invasive involvement including inquiry into political and religious beliefs” (Rao, 513). To counter this fear, this statement misconstrues the prevention of domestic violence against women in the private sphere with state conducted home invasion and interrogation of political and religious belief. Implementing international human rights law that protects women from violence in the home such as marital rape and wife beating does not endanger an individual’s freedom, it simply prevents a spouse from dehumanizing and controlling their wife through sexual violence which by no means should be a right granted and condoned by states. In places where states have regulated the private realm, perception, behavior, and practices in terms of “family, sexuality, home and work” have changed (Rao, 513). State involvement in the private realm would not take away a man’s individual freedoms, rather it would grant women freedoms and treatment as equal persons who deserve protection from violence. 

Throughout this essay the heterosexual family structure and only man on woman sexual violence has been discussed. MacKinnon and Rao wrote their essays in the 1990’s so the strictly heteronormative discussion of their essays is outdated. The sexual and domestic violence that can occur in non-heterosexual couples must be fought for and labeled for inclusion in human rights documents as well. Demanding attention to man on woman violence is important because it is not named explicitly in human rights doctrine, but it is equally important to acknowledge the sexual violence that occurs between same-sex or non-gender conforming couples and generally the sexual violence against LGBTQ+ people which is also not addressed. 

Human rights discourse and documents are currently androcentric and therefore outline human rights in a way that maintains patriarchal domination. International human rights law must be reformed to include women and prevent domestic violence and sexual abuse including marital rape. All forms of rape; in the public sphere (war, torture, immigration, refugees receiving aid) and in the private sphere (marriage, relationships or hook-ups, pornography and other forms sexual assault in the media) have to stop (MacKinnnon, 530). It will stop when women are recognized as part of humanity and equal to men through international law protections (MacKinnon, 530). Protections specifically regarding the private sphere must be implemented because only on this level will women truly gain full rights to their bodily autonomy, safety, and well-being. There must be a system created to hold states and individuals accountable for their acts of sexual violence whether in the name of war or in the private sphere (McKinnon, 540). McKinnon asks how can we create a war crimes tribunal that is accessible to victims of mass sexual atrocity (McKinnon, 540)? What will make it possible for victims of genocide and rape to speak about their violations (McKinnon, 540)? It must be recognized that when a woman is raped a human rights violation has occurred (McKinnon, 540). As long as states remain uninvolved in the private sphere and support husbands’ current marital rights, this violence will continue (Rao, 521). Rao argues that through this analysis of the current human rights framework on both the personal and institutional level, women have a right to advocate for immediate legal attention to their concerns of domestic violence and marital rape and “a reconceptualizing of gender issues in the law” (Rao, 510). Only by new “conceptual associations of knowledge, political power, and social practice can certain kinds of violence, such as marital rape, be given a name, and can their indubitably political nature be recognized” (Rao, 521). Rao writes that feminist activists have become insistent upon the condemnation of countries that “perpetuate this global pattern of abuse” (Rao, 521).   

There are two ways to address these issues that Rao proposes; firstly, edit CEDAW and the other minimal human rights documentation to cater toward and address issues of domestic violence like marital rape (Rao, 522). This suggestion is flawed because reinterpretation is not an acceptable sole solution as precautions will not be thorough enough (Rao, 522). Second, a state’s resources should be devoted more to the private sphere where the most significant violence against women occurs (Rao, 522). This is not simply the fight of local advocacy groups and human rights organizations, this needs to be an internationally recognized atrocity because “international debate and formal recognition of rights violations in the private sphere would make a tremendous difference” (Rao, 523). Without international funding and consensus, resources will remain in short supply, and the responsibility will fall on local groups. The international community and each state must take action to protect all their citizens and see women as part of humanity (MacKinnon, 539). “The international silence” surrounding this issue does not match the demand for protection and reform fought for across the world (Rao, 521). Considering that Rao asked why these demands have not yet been addressed twenty-nine years ago, the hope in our society for respect and equal treatment of women is even more disheartening. Global society must recognize women as part of humanity and implement explicit human rights doctrine that prevents sexual violence against women and LGBTQ+ people because it is morally wrong and disgusting to dehumanize our fellow humans through sexual violence. How many more college campus rapes, domestic violence cases, and systemic child sexual abuse stories will it take for the international human rights community to act against this crisis? 

Work Cited  

Hayden, Patrick, and MacKinnon, Catherine A. “43 Rape, Genocide, and Women’s Human Rights” The Philosophy of Human Rights, Paragon House, St. Paul, MN, 2001, pp. 505-523. 

Hayden, Patrick, and Cranston, Maurice. “17 Human Rights, Real and Supposed.” The Philosophy of Human Rights, Paragon House, St. Paul, MN, 2001, pp. 163–173.  

Hayden, Patrick, and Rao, Arati. “42 Right in the Home: Feminist Theoretical Perspectives on International Human Rights.” The Philosophy of Human Rights, Paragon House, St. Paul, MN, 2001, pp. 505-523.