Towards Theorising the Background and Implications of Salient Legalist Narratives of Sexual Violence

The relationship of a 30-year-old member of the Danish parliament to a girl, half his senior, has triggered a fiery public debate and led to his expulsion from his party. Recently, on a Danish political podcast, a former top minister expressed his frustration that the member of parliament was subjected to a moral ‘public court’. He argued that if politicians find laws inadequate, they can and should change them, suggesting the appropriateness of legal scrutiny of the relation, rather than moral condemnation. Moreover, he claimed that because he did not do anything illegal, public moral evaluations are irrelevant. This line of reasoning stresses a salient narrative in contemporary public discussion of sexual violence: In the wake of the #MeToo movement, public discussions are rife with contestations of what ought to be classified as sexual violence and how victimisation ought to be practised, particularly how, when and where it should be disclosed. Some scholars observe that resistance to feminist activism against sexual violence is firmly embedded in legalistic discourse and classifications, with some even noting a hegemony of legalistic discourse. Thus, law is invoked to criticise and constrain practices related to sexual violence victimisation.

In this paper, our ambition is to develop a theoretical framework to better understand how legalistic discourse impacts lay perceptions and debates surrounding the moral boundaries of sexual violence. We employ a feminist perspective to understand 1) the societal and political context, and 2) the implications of legalistic discourse. We pay particularly attention to how individualisation and depolitisation underpin legalistic discourse.

In the first part, we outline the societal and political background of legalistic discourse by offering a tentative diagnosis of the historical juncture, modelled as a configuration analysis. Profiting from sociological and political theories, we propose that the following forces and tendencies are crucial: 1) the turn to the right of political space, including the forces of neoliberalism and neonationalism, with both implying a depoliticization and delegitimating of feminism and feminist goals, including transformation of gendered power relations; 2) individualization, and by extension, domination of psychological discourses, 3) right-wing counterattacks on left- wing identity politics; 4) a fragmented and internally divided feminist movement.

In the second part, we address how legalistic discourse emerges as a principal instrument to fragment and individualize the causes and contexts of sexual violence, with the representations of law providing dichotomous, privileged, and legitimizing classifications of truth. We explore how this tendency may exacerbate individualization and obscure structural and gendered foundations of sexual violence, thereby further depoliticizing, and constraining discussions on its structural aspects of victimization and perpetration. In this part, we draw on existing work on victim experiences, highlighting the complexity and ambiguity of sexual victimization, which often defies rigid legal categorization. We contrast these insights with ideal typical foundational principles of law. Drawing on a sociolegal conceptualization of legality and legal consciousness, we explore how legal meaning-making, narratives, classifications and problematizations transcends formal legal institution and become central to contestations of the boundaries of sexual violence as well as victimization practice and disclosure. More specifically, we consider our analysis in the light of law’s symbolic authority as a privileged institution that formalizes and institutionalizes moral boundaries.