Gender, Sexuality, and Power: Is Feminist Theory Enough


GENDER, SEXUALITY, AND POWER:
IS FEMINIST THEORY ENOUGH? +

BRENDA COSSMAN * DANDANIELSEN, **JANET
HALLEY, AND TRA CYHIGGINS**

I. EDITOR'S NOTE: AN INTRODUCTION

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

In t he following dialogue, four a uthors critically examine how t o
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,' 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

© 2003, Brenda Cossman, Dan Danielsen, Janet Halley, and Tracy Higgins. All

rights reserved.
. Professor of Law, University of Toronto. With thanks to Janet Halley for her

provocative engagement in ongoing conversations.

Visiting Professor of Law, Northeastern University.

Professor of Law, Harvard University.
* Associate Professor of Law, Fordham University.

855 S.W.2d 619 (Tex. 1993).



Columbia Journal of Gender and Law

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.

II. 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]

The plurality of the Texas Supreme Court8 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

21d.

3 /d. at 620.

4 d. at 636.

5 Id.

6/d. at 620.

7 Twyman v. Twman, 790 S.W.2d 819 (Tex. App. 1990).
8 a, 855 S.W.2d at 619-26.

9 Id. at 624-26.

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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
Phillips1 ° and Justice Hecht" 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.' ' 2 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.' 4 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.' ' 5 Moreover, the inquiry required would
simply require "too great an intrusion into the marital relationship.' 6

A third dissenting opinion by Justice Spector17 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

0 Id. at 626-29.

" Id. at 629-40
12 Id. at 627.

U id.

1
4 /d. at 636.

" Id. at 637.
'6 1d.

'7 Id. at 640-44.

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majority of the court takes a step backward and abolishes one way of
righting this grievous wrong."' 8

III. 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.' 9

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 be 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, t he e roticization o f domination produces men and w omen,
male and female, masculine and feminine, as domination and subordination,
and this is bad because, however much the subordinated feminine might

'sId. at 643.

19 These remarks are d erived from my p aper T ake a B reak from F eminism?, i n

Gender and Human Rights (Karen Knop ed., forthcoming 2004).

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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 ' '2° 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
necessarily presupposed to have the salience that they have in feminism.

Feminisms also differ a great deal in the degree to which they
figure women's subordination as structural or episodic. A strictly structural
theory would be one which posits the universal totality of male domination.
MacKinnon's "feminism unmodified" is strongly structural in this sense.
Many feminists resist this aspect of MacKinnon's theory, and seek to
understand male dominance as having an "outside." Now that would be
where they might also want to Take a Break from Feminism: if male
dominance is not always already there, then we don't always need
feminism.

I have noticed feminism resisting these moves in the direction of
Taking a Break from Feminism in two chief ways. One is what my
colleague, Duncan Kennedy, writing about something else, calls "paranoid
structuralism.,'2 Feminist paranoid structuralism either hypothesizes or
presupposes (please note a big difference there) that, although things in the
world seem to be organized in a way that does not invoke M/F or require us
to carry a brief for F, this perception is probably a deep error, and
profoundly counterintuitive investigation will eventually reveal that, yep,
it's M > F all over again. I am a huge fan of hypothetical paranoid
structuralism. It is a crucial element of every radical theory that regards the

20 1 refer to the decisive intervention offered by Carole S. Vance in Pleasure and

Danger: Exploring Female Sexuality (Carole S. Vance ed., 1984).
21 Duncan Kennedy, Afterword: A Semiotics of Critique, 22 Cardozo L. Rev. 1147

(2001).

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very consciousness of those propounding it to be one of the "powers"
against which it works. I love it also for how hard it works; it takes nothing
for granted; it is a persistent incitement to critique. I love it for its love of
the covert, its need for highly astute interpretive practices, and its constant
yearning for a radical transformation of consciousness. But when paranoid
structuralism is promoted from a hypothesis to a claim-when one
presupposes the covert importance of one's favorite paranoid idea, or
claims to see it precisely because of its seeming absence-it runs into the
big downside of being, well, paranoid. It can lead you to not noticing other
things that are going on, things that just can't and probably shouldn't be
forced into the vocabulary of M > F.

The second mode in which feminism recuperates an ostensibly
rejected structuralism is most noticeable in what I call the hybrid
feminisms: socialist feminism, antiracist feminism, postcolonial feminism.
These feminisms share the essential features of feminism as I have listed
them; and they also posit that some other system of social subordination,
operating according to some other difference that defines the theory and is
essential to it in that sense, is also at work in the world. Class, race, empire:
these are systematic social events that organize subordination in ways that
are at least hypothetically distinct from M and F. There are two basic
tendencies in these feminisms with respect to structuralism: a divergentist
and a convergentist tendency. Divergentist hybrid feminism is ready to say
that there are some things in, say, racism, that are simply not capable of
being merged into the presupposition of M > F. There are tensions, splits,
and sheer breakaway moments, in which an antiracist feminism would see
things in terms of race and not gender, would be for a man against a
woman, and so on. Work like this ends up performing a firm rejection of the
structuralist wish. These feminisms have learned how to Take a Break from
Feminism, and I would argue that the strength of so much of this work (or
perhaps simply my own admiration for it) is directly the result of a
willingness to do so. Rejecting this approach, convergentist hybrid
feminism posits that the theory is not good enough, the explanation not
worked out enough, until everything in the socialist dimension, the
antiracist dimension, or the postcolonial dimension of the project can be
fully referred to and merged into its feminism. My notes from this
conference record myriad reiterations of this jealously guarded moment in
feminist thought. Oddly enough, it sometimes seems that feminism
imagines that it will stand accused of racism and imperialism (or
orientalism) if it does not posit its ambition to "top" both antiracism and
anti-imperialism by emerging, when all is said and done, as their ultimate
conceptual, normative, and political reference point. Structuralist ambitions
figure in these gestures as an ultimate fealty to a transcendence, utopia, or
harmonic convergence which, if we were only smart and good enough, we
would be able to produce out of the terrible conflictual material we have to
work with.

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Assessing the Costs

There are costs to these recuperative strategies, to the structuralism
they covertly reintroduce, as well as to the definitional demands of
feminism itself: its precommitment to M/F and to carrying a brief for F.

Before offering a few thoughts on that, allow me to insist that there
are costs to Taking a Break from Feminism as well. They include: relaxing
the epistemic vigilance that is needed to resist male epistemic hegemony;
risking further splits among feminists at a higher conceptual location than
most other splits, and thus risking new fissures in the intellectual, social,
political, and legal endeavor; demobilizing and demoralizing feminists;
laying oneself and one's arguments open to cooptation by the enemies of
women's well being; legitimating male dominance generally and
specifically. If, for instance, feminism is our best weapon against the
constant pressure of male sexual violence, weakening feminism in any of
these ways could actually result in some guy's decision to rape a woman he
would otherwise leave unmolested, or some prosecutor's willingness to see
reasonable doubt in a rape case that would otherwise have seemed a clear
prosecutorial priority. I see all that. Believe me, I do.

Still, I think it is also important for "us" to get clear about the costs
of feminist structuralism, paranoid structuralism, and convergentism, and
even of maintaining a constant focus on the conceptual priority of M/F, and
the normative or political priority of perpetually carrying a brief for F.

Some of those costs are:
Brain drain. Everywhere I go women complain to me that

academic feminism has lost its zing. Many key intellectual figures in
feminism have decamped to other endeavors. Women's Studies Programs
have u ndergone t umultuous t ransformations into G ender a nd/or S exuality
Studies Programs or disappeared altogether. Feminist journals accept
articles only on the proviso that the authors produce the effect of M > F, so
that important new work gets submitted and published elsewhere. Faced
with t hese t rends, feminists s ay t hey h ave b een b etrayed a nd a bandoned,
and urge one another-the saving remnant-to a renewed commitment to
feminist tenets. (It has even been suggested at this conference that the
situation is so bad that feminists should "go underground.") I think the
feeling is misplaced and the remedy is probably counterproductive. One
motive force driving the brain drain is, surely, the sheer preclusion imposed
on inquisitive minds and avid justice seekers by the paranoid structuralist
and convergentist presuppositions. Another is a widely-held and powerful
hunch that, as Kendall Thomas put it at the conference, "women don't own
gender": perhaps we need to examine M and F while suspending the
stipulation that subordination is always their relation, and always takes the
form of M > F. And then there is the hunch that many of the most
devastating problems in the world might not be about M/F even a little.

Bad faith. If you look around the United States and Canada, at least,

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you see plenty of places where feminism, far from slinking about
underground, is running things. Sex harassment, child sexual abuse,
pornography, sexual v iolence: these feminist justice projects h ave moved
off the street and into state and corporate bureaucracies. Schools and
employers devote substantial resources now to extensive sexual harassment
regulatory schemes. Child sexual abuse and rape enforcement have serious
priority in many jurisdictions and frequently tap into "zero tolerance"
enforcement modes much more readily than other kinds of child neglect and
interpersonal violence. The Canadian Supreme Court has held that
pornography that depicts the sexual subordination of women is an equality
violation.

In some important senses,feminism rules. Governance feminism.
Not only that, it wants to rule. It has a will to power.
Here its commitment to M/F and to carrying a brief for F has real-

world distributive consequences that feminism should not disavow. It wants
to do, has done, and will do things on behalf of women at the expense of
men and other social interests. This is not necessarily bad; justice in the real
world sometimes means imposing costs. When it does this, feminism has
effects. It gets blood on its hands. It needs-and I suggest it is utterly
without-a theory and practice of its own role in governance, of itself as a
responsible wielder of power.

Feminist convergentism and paranoid structuralism bring their own
special contributions to the denial of feminist power, the maintenance of the
myth that feminism remains an utterly underdog movement needing
complete and unbroken solicitude. But the possibility of a more nearly
responsible attitude to the problem of "feminism with blood on its hands"
might also require Taking a Break from Feminism's definitional stakes of
M/F and the subordination of F. I would suggest that these stakes not only
make feminism what it is today, but also make it hard for it to see around
comers of its own construction. Unless it Takes a Break from itself, it can't
see injury to men. It can't see injury to men by women. It can't see other
interests, other forms of power, other justice projects. It insists that all
justice projects will track a subordination model. And this refusal to see,
sustained while feminism imposes costs on interests and projects outside its
purview, gives us a textbook case of bad faith.

Power masquerading as servitude. At this point in my argument, I
frequently hear that I don't care about women, have belittled the harm
suffered b y w omen, h ave denied t he h arm suffered by w omen, and h ave
silenced women. These are fascinating charges. More than that, they sting.
Happily, the final panel of the symposium was devoted to the problem of
sting.22 Whatever their merit, feminism imposes costs on itself when it

22 The papers corresponding to the panel "Why Do We Eat Our Young?:
Disagreements Among Feminists" are located in the final section of this issue, beginning at
page 638.

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makes these charges.
First, nothing in what I've said requires me to concede these

charges. Saying that women might harm men, for instance, is not the same
as saying that women are not harmed. Saying something feminist women
disagree with does not silence them. To be sure, saying that we should Take
a Break from Feminism might have as a downstream consequence harm to
women, a silencing of women. I might get blood on my hands. But I can't
help thinking that feminists who imagine that my critique not only risks
those consequences but contains and intrinsically performs them are
attributing to me the only kind of power they can imagine for themselves.
Their implicit vision of themselves and their opponents as Gods capable of
performative utterances on the level of "Fiat Lux" or "I sentence you ... " is
either very very flattering or very very scary.

Second, these accusations reassert precisely the presuppositions in
feminism that I am calling into question. They redraw feminist disciplinary
boundaries and implicitly require that feminists stay within them; a feminist
will always describe everything in terms of M/F, and will always describe
M/F as the domination of M and the subordination of F. That is, these
charges are symptomatic of precisely the structuralism, with all the
associated blind spots, which I am describing as costly to feminism.

Moral perfectionism and magic realism. Feminists hearing my line
at this point have responded again and again with a formulation something
like this: if feminism had blood on its hands it would be because it had
become a dominator; but feminism is definitionally against domination; and
if it has dominated, if it has caused harm, it must chasten itself; but most
likely feminism has not actually caused any harm; after all feminism is
powerless and in fact suffers harm. This argument, for all its moral
modesty, is actually quite strict: feminism (to be feminism) must be morally
immaculate. It is either subordinated (and harmless) or not itself. A
profound structural totalism-feminism is the subordination theory par
excellence-subtends this formulation.

This willingness of feminism to undergo chastening in the name of
its moral perfectionism is not necessarily meek all the way down. It
stipulates for a binarized outcome: feminism can either assume guilt or
deny harm. At moments when guilt has been the preferred stance, feminism
has been notoriously not fun. Memories o f these episodes have probably
done a lot to fuel the brain drain. The fact that denial is framed as the chief
alternative has produced certain magic realist tendency in feminism, and it
has produced a lot of distrust in allied projects (antiracist projects, pro-gay
projects, etc.) whose constituency arguably ends up bearing the costs of the
decisions made by governance feminism. Finally, this denial has
discouraged the investigation of internal ambivalence among self-identified
feminists. Feminism in this mode does not particularly want to hear me say,
"As a gay man, I . . ." And I might well decide to Take a Break from
Feminism rather than give up on the hope of finding out what it might mean

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to say it.
Constituting women, heterosexuality, and women's suffering. One

of the most crucial moments in the genealogy of United States feminism
was the roughly simultaneous publication in 1990 of Judith Butler's Gender
Trouble and Eve Kosofsky Sedgwick's Epistemology of the Closet.23 In
different ways, and opening onto different consequences, both of them
argued that what I have called here the definitional stake tying feminism to
M/F also ties it, at the most fundamental level, to the heterosexual. To the
extent that feminism defines itself as the -ism of this distinction, it is
heterosexual; it requires heterosexuality and is basically not friendly to the
homo-affirmative aim. Sedgwick responded by seeking a suspension of
feminism; to articulate a "gay affirmative" agenda she felt the need to Take
a Break from Feminism. She asked instead whether the homoerotic could be
understood with richness and nuance in an account that did not turn
substantially on M and F and proposed that study of same-sex eroticism
might well return to feminism, but at an uncertain future date. Butler
responded to the very same dilemma by turning feminism against the M/F
distinction itself. A feminism that did not question its own role in producing
the discursive strictures that require there to be women, the feminine, and
femininity could not escape the charge of heteronormativity and thus could
hardly merit the name of feminism.

A similar critical move can be performed on the definitional stake
tying feminism to the subordination of F. What if, as well as describing and
opposing this social and psychic event, feminism helps to produce it? What
if t he p olitics o f injury a nd o f t raumatized sensibility w hich h ave a lmost
completely occupied the space cleared by MacKinnon's politics of
domination and subordination are helping to authorize and capacitate
women as sufferers? If indeed feminism is a powerfully constitutive
discourse, it might well have a shaping contribution to make to women's
suffering when, for instance, it insists that a raped woman has suffered an
injury from which she is unlikely ever to recover. What if real raped
women, believing this feminist line, proceed never to recover? What if
some men are "guided" by this bull's-eye to target women for rape rather
than fomenting other aggressions, perhaps more manageable, perhaps
directed elsewhere? When feminism insists that any effort to trace the
causes of particular rapes in the woman's conduct blames the victim,
revictimizes her, is a second rape, it might make rape seem more magical
and random than it is, might make women more risk averse about it than
they need to be, and might induce women to concede more social power to
the threat of rape than they otherwise would. So much feminist rape

23 Judith Butler, Gender Trouble (1990); Eve Kosofsky Sedgwick, Epistemology
of the Closet (1990). In the background for both Sedgwick and Butler was the crucial paper
of Gayle Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in
Pleasure and Danger, supra note 20, at 267.

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discourse insists on women's object-like status in the rape situation: man
fucks woman-subject verb object. Could feminism be contributing to,
rather than resisting, the alienation of women from their own agency in
narratives and events of sexual violence?

These questions pose a very profound problem about the nature of
power and resistance. If a social subordination exists and an anti-
subordination discourse ratifies it, fixes it, creates the discursive capacity
for its experiential uptake by the subordinated, all the while hanging a
bull's-eye on it, then where does one intervene to attack it? It has fascinated
me, as I have begun to learn how to ask this question, to notice the strong
feminist impulse to refuse it as unfeminist. The reaction has fueled my
intuition that we might need to Take a Break from Feminism precisely to be
for women and against this increment of injury.

Re-reading the Facts of TwVnan

In an effort to clarify some of the costs and benefits of feminism
and of Taking a Break from Feminism, I'm going to sketch four re-readings
of the Twyman facts. I am not trying to figure out what actually or probably
happened between William and Sheila Twyman, the actual human beings.
Instead, I am going to offer four very divergent readings of the case, each of
which could be thought adequate to the record as reflected in the Texas
Supreme Court justices' various renditions of the facts.

I've redacted the following collection of factual elements in the
various o pinions and tried t o retain only w hat i s u ncontradicted. William
and Sheila were a young married couple. William asked Sheila to
participate in bondage in their sexual relations and she agreed to. They both
tied each other u p with n eckties. S heila t old William s he w anted t o s top
doing this and explained to him that it was too painful for her for reasons
relating to her rape, several years earlier, by a man who threatened her with
a knife and actually cut her. The S/M activities stopped. Several years went
by. Sheila discovered that William was in psychotherapy and confronted
him to find out why. He told her he was having an affair with a woman who
was willing to engage in bondage. He took the position that he had to have
S/M sex, and that the marriage could not last if Sheila could not participate
in it with him. They went into counseling. They made an experiment with
S/M in the final days of their marriage; their last sexual encounter, which
did not involve bondage, left Sheila with gynecological bleeding. Soon
thereafter she filed for divorce. Later she amended her complaint to add the
claim for infliction of emotional distress damages.

A Sexual-Dominance Feminist Reading

Many factual understandings offered by the trial court and the
justices manifest the success of sexual-dominance feminism (MacKinnonite

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and cultural feminism) in recruiting state power.
The homology between the rape and marital sex involving

bondage.2 a The remand presupposes that a fact finder could conclude that
William intentionally or recklessly caused Sheila intense emotional distress
because he persisted in wanting to have bondage scenes with her even
though he knew she had been raped at knifepoint and associated bondage
with the rape. This notwithstanding the differences, e.g., the rapist actually
knifed Sheila and she had sex with him in fear for her life; every bondage
scene we hear about between her and William happened upon her
"consent" and the only one we have any details about involved both of
them being tied up; knives and neckties have different technical capacities
and symbolic associations. Important side note: not a single justice frames
the "rough" sex25 that left Sheila bleeding into the intentional infliction
narrative, and Justices Hecht and Spector distinguish it from the S/M story
upon which the intentional infliction remand is based.

Many cultural feminists and MacKinnonite feminists would regard
this understanding as just right, in at least two ways. The more structural
feminisms, and the more sexual-dominance feminisms, tend to (though they
need not) see rape as the paradigm or exemplary event in male/female
relations, and regard their analytic work as complete only when more
peripheral events, like sexual harassment, pornography, etc., are rendered
homologous to it. The more radical and less liberal they are, the more they
also have a critique of consent, such that Sheila's consent-to marry
William, to live with him, to have sex with him, to have bondage sex with
him-are all understood to be indistinguishable from the sex she had with
the rapist. Except for in really radical feminism of the sort we see in
gloriously paranoid structuralist versions like MacKinnon's early work, the
conclusion of most feminisms is that rape and its homologies are coerced.
That is to say, they do not see a consent/coercion problematic nor do they
have a critique of consent or coercion. (The early MacKinnon, let it be
noted, did.) Instead, in most contemporary paranoid structural feminisms,

24 The justices give us a range of representations of the homology, from loose to

tight, from unspecificied causation to similarity to identity. Justice Cornyn leaves it loose,
telling us "Sheila testified that William pursued sadomasochistic bondage activities with her,
even though he knew that she feared such activities because she had been raped at knife-
point before their marriage"" TwvMan v. Twvman, 855 S.W.2d 619, 620 n.1 (Tex. 1993)
(emphasis added); Justice Hecht indicates that Sheila "associated" the rape and bondage, so
that "she revealed to him that she associated the activities with the horrible experience of
having been raped at knifepoint earlier in her life," id. at 636 (emphasis added); and Justice
Spector reports that, for Sheila, the rape and the bondage were the same: after William
"introduced bondage activities into their relationship after their marriage[,] Sheila told
William that she could not endure these activities because of the trauma ofh aving been
raped several years earlier" and "William understood that Sheila equated bondage with her
prior experience of being raped," id. at 641 (emphasis added).

25 Justice Hecht's term. Id. at 636.

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consent collapses into coercion (just as in postfeminist neoliberal
backlashism, coercion collapses into consent). I myself want to think there
are differences between rape, on one hand, and sex with someone you know
and like but on terms (neckties?) that you don't like. Even more than that, I
want a problematic of consent/coercion, not a collapse of everything on one
side of the binary or the other. So I would want to Take a Break from these
feminisms.

Domination as trauma. In the last twenty years, many sexual-
dominance feminisms have turned to the vocabulary of trauma for
describing what structural MacKinnonite feminism would call domination.
In that vocabulary, rape (for a paradigmatic instance) is understood to inflict
harm on the psyche from which it can never recover; it brings into being a
new self that is constituted by its injury. There are plenty of feminist
counterdiscourses of course, but the trauma understanding is alive and
well.2 6 Two Twyman justices describe Sheila's rape as experience or
trauma, and thus (by the narrative presuppositions of this discourse in
feminism) as persisting in a perpetual present. Past time is pulled through
to the present and beyond when Justice Hecht says that Sheila presented to
William her "horrible experience of having been raped at knifepoint earlier
in her life, ' 7 and when Justice Spector validates her "equation" of it with
her c laim t o "the trauma of h aving b een r aped several y ears e arlier. '

,
28 I

myself would want to get better after an injury of that kind, not to suffer it
forever, so here, again, I want to Take a Break from these feminisms.

Of course these moves are optional, not essential, inside feminism.
Many feminisms, particularly sex-positive and postmodernizing ones, have
been resisting these moves in sexual-dominance feminism for quite some
time. What, over and above their achievements perhaps, might we gain in
our reading of this case by Taking a Break from the essential elements of
feminism? To see what that would be like, here are two nonfeminist
readings of the Twyman facts. They make some good moves, I think.

26 Pamela Haag, "Putting Your Body on the Line": The Ouestion of Violence,

Victims, and the Legacy of Second-Wave Feminism, 8.2 Differences 2 3 (Summer 1996);
Sharon Marcus, Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention,
in Feminists Theorize the Political 385 (Judith Butler & Joan W. Scott eds., 1992). For a
recent restatement of the trauma understanding of rape, sounding both in MacKinnonite and
cultural feminist terms, see Rape Is..., produced and directed by Margaret Lazarus and
Renner Wunderlich (Cambridge Documentary Films 2002).

27 TwYman, 855 S.W.2d at 639 (emphasis added).

28 Id. at 641. Justice Spector further insists on the psychic, somatic, and ultimately

clinical painfulness of Sheila's experience: her Sheila experienced "utter despair" and
"devastation," weight loss, and prolonged bleeding that necessitated gynecological
treatment. Id. She concludes that "the pain and humiliation of the bondage activity caused
her to seek help from three professional counselors." Id. (emphasis added).

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A Nietzschean Reading

Sheila's project with William was intensely moralistic. She was not
content to seek a fault-based divorce, and apparently did not seek damages
or pursue criminal charges against him for that last night of sex that left her
bleeding. Instead she seeks a judge's finding that his solicitations of
sadomasochism, especially after the rape disclosure, and his willingness to
leave the marriage because of Sheila's refusals, were outrageous, beyond all
possible bounds of decency, atrocious, and utterly intolerable in a civilized
society.

What can we say about this strategic decision if we take Nietzsche's
Genealogy of Morals 29 as our theoretical ground? Let us imagine Sheila as
indeed dominated and injured by male sexual rapacity, as moralistic rather
than rebellious about this defeat, as saturated in ressentiment that turns her
will to power toward vengeance, particularly moral vengeance, and as
willing to suffer the whips of a bad conscience to secure the upper moral
hand. Sheila, the agent of slave morality.

Seeing the case from this angle, we can say things like this. Sheila's
rapist, that blond beast, could have been her enemy, but (possibly with the
assistance of feminism) became her master. His power to rape her at
knifepoint became a if not the central fact of her life. Experiencing herself
as utterly dominated, she determined to oppose him with the power of the
weak; he was "bad" not in the sense that he acted inimically to her will, but
in the sense that he was evil. And her moral project of punishing him, in its
ferocious will for revenge, failed to notice that William was, well, a
different guy. Wielding the moral code of good (vanilla) sex, Sheila made
William grovel, but she also suffered intensely herself. Justice Spector (of
course) provides us with the gruesome details: Sheila experienced "utter
despair" and "devastation," lost weight, accepted sex with William that left
her bleeding, and "the pain and humiliation of the bondage activities caused
her t o s eek help from three p rofessional counselors." 30 (As I have noted,
Justice Spector's and Justice Hecht's Sheila seems to find sex with neckties,
but not sex that produces gynecological injuries, to be painful and
humiliating. A Nietzschean reading of this discrepancy would propose that
this Sheila was devoid of a self-preservative impulse, could not attend to the
well-being of the body, so devoted was she to quickening of her wounded
soul.) She experienced her self as utterly powerless, utterly broken. The
more intensely she sought and obtained vengeance on William, the more
deeply she became embedded in the stringencies of the suffering that
justified it.

29 Friedrich Nietzsche, On the Genealogy of Morals: A Polemic (Walter Kaufmann

& R.J. Hollingdale trans., Walter Kaufmann ed., Vintage Books 1989) (1887).

30 Twvman, 855 S.W.2d at 641.

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What could we possibly gain by reading the case this way? Well,
we are put on notice that we might want to divorce Sheila Twyman from
our political alliances and exile her from the scope of our unreserved
solicitude. If this reading of her is right-and the reading itself is no
empirical warrant (but note that nothing in the facts we are given prevents
me from reading it this way)-it warns us to think of her as no weakling,
but rather (if we oppose her) as a formidable enemy who will pursue her
goals with fierce drive. Second, we gain some insight into the claims made
by her sheer suffering. It is (on this reading) the effect of domination to be
sure, but it is also produced, focused, prolonged, intensified, and turned into
a weapon by her will to power. The slave-moralistic slave suffers terribly
with every new access of subordinated sensibility. Third, we are in a good
position to ask: what if feminism is partly responsible not only for her
power, but also for the terrible suffering that grounds it? We might need to
Take a Break from Feminism to see how feminism might be making things
worse not only for Sheila Twyman, but for everything under attack in her
persnickety code of sexual morals.

A Foucaultian Reading (6 la Volume One)

Many feminists developing the possibilities for postmodernizing
feminism have attempted to converge Volume One of Michel Foucault's
The History of Sexuality3 ' into feminism. But here I am pursuing
divergence. How would the Twyman facts look if our hypotheses about
sexuality and power included the following: sometimes power is not
domination but micro-relations; sometimes power is not puissance but
pouvoir,32 the capacity to produce effects, not bad or good but just there;
freedom might be not a state of release of repression or de-subordination
but a practice of active engagement in power; power might combine with
knowledge to produce, as an effect of power, intelligibility; sexuality might
be one such effect; sexuality might be organized by technologies like the
psychiatrization of perversions; gender might be peripheral, not central, to
it.

So let's read the Twyman facts as if these hypotheses were the only
ones available. We are invited here in the direction of Justice Hecht's view
that power relationships between husband and wife are myriad,
indeterminate, and not readily captured by dominance/subordination
models. And this might allow us to see that Sheila and William are involved
in almost identical forms of sexual pathos. Both are committed to the idea
that they have deep, inner, injured sexual selves beyond which they cannot

31 Michel Foucault, The History of Sexuality, An Introduction: Volume One
(Robert Hurley trans., Vintage Books 1990) (1976).

32 As always, thanks to Alan Hyde for this excellent distinction.

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Columbia Journal of Gender and Law

move one micron, and which they must enact with near fatal completeness.
William nust live out the affliction of a perverse implantation, a deeply
resisted fetishistic desire. He is a classic subject of the psychiatrization of
perversions. Sheila must live out the affliction of rape trauma. Rape trauma
is her deep inner truth, and her experiential life must make it manifest. In a
terrible way, William and Sheila are perfectly matched to provoke the
complete manifestation o ft heir diametrically opposite desires; but oddly,
this is because they are basically the same.

Moreover, Foucault always seems to think this experience of deep
inner truth is introduced into modem consciousness by a discourse-a
power/knowledge-that imposes it on us while distracting us from the real
action, the real place where power connects with sexual life. (This is
Foucault's paranoid structuralism.) And where might we look in the
Twyman facts for a warrant of the hypotheses of Volume One? We are
looking for something broadly regulatory, not M/F, and capable of complex
biopowenstic and micropoweristic deployments.

I propose marital monogamy. Marriage provides spouses with an
amazing power over each other: the power to perform (and inflict) and to
prohibit (and punish) infidelity. Of course there are many ways of reading
infidelity on a moral register. One: William breaks the most important
promise that subsists between people; Sheila is not only devastated but
wronged. Another: Sheila is the anti-sex fidelity-enforcing wife from hell,
who won't have mild S/M sex with her husband, won't let him sleep around
to get it, and won't divorce in peace. But let's try instead for a reading
without a victim and a victimizer, without dominance and submission, but
with power. What if the struggle between the two over William's infidelity
(their divorce had been pending for eight years by the time the Texas
Supreme Court remanded the case for a new trial!) was for both of them a
paroxysm of intimacy, a sustained crescendo of erotic interrelatedness,
which, if it should ever end, would leave both of them aimless and lonely to
the last degree?

Why would we ever want to read the case this way? For the sheer
critical mobility that we get from decoupling the facts (forgive the pun)
from M/F, from M > F, and even from >. Suddenly we can see that legal
rules and cultural forms-marriage, divorce, fault-based divorce, marital
torts, the fidelity requirement-might operate in social contexts where
husbands and wives have worked to ensure that they have symmetric-
mirroring or even identical!-rather than hierarchical bargaining
endowments. The real hierarchy would be between those who like and those
who don't like a social world ordered by marriage and its legally significant
fidelity requirement, between those who do and don't like multiple partners
and/or a little kink, between those who depend on the former to add fizz to
the latter. And suddenly we can see that the discourses of de-repression as
liberation from subordination might sometimes recruit us, M or F, to
projects of intense and endless suffering. Most critically, we can see that

[Vol. 12:3



Gender, Sexuality, and Power

some of us might want that suffering; it helps, I think, to be able to see that
suffering can be what people seek and a very commonplace upside to
marriage at its most banal and normal. (This would be a queer theoretic
insight.) Figuring out what to do about such perverse desires is very hard.
Facing how hard this is might be a good thing to do. And I would suggest
that we can best do that if we are not tethered 100% of the time to
feminism.

IV. BRENDA COSSMAN: SEX, GENDER, AND FEMINISM AFTER

Feminism's relationship to sexuality has been a troubled one.
Feminist theory's contribution to the analysis of sexuality has been
profound, revealing sexuality as a site for the production of gender and the
operation of power. But feminism's analysis of sexuality has also been
fraught. The sex wars of the 1980s divided feminists into those who framed
sexuality primarily as a site of danger and oppression for women and those
who saw sexuality more ambivalently, as also a site of pleasure and
liberation. Some critics, notably Gayle Rubin and Eve Sedgwick, began to
suggest that the study of sexuality needed a degree of independence from
feminism, and that sexuality and gender be conceptualized as two distinct
domains of analysis.33 Lesbian and gay studies and queer theory took up the
defining challenge of theorizing sex and sexuality in an analytic framework
independent of gender. This rupture with feminism has produced a
sophisticated literature on sex and sexuality, allowing more focused
attention on a troubling of heteronormativity than the framework of
feminism with its focus on male/female relationships had allowed.

Yet, this rupture has also produced a somewhat stultifying divide.
Feminism and queer theory are cast in an antagonistic relationship, their
differences incommensurable. Feminism has come to be associated with
one side of the sex wars-those who seek to regulate the harms that
sexuality presents for women, while queer theory has come to be associated
with a more liberatory politic that seeks to destabilize the disciplinary
regulation of sexuality. It is a divide that obscures significant currents of
feminist thought and fails to interrogate the more productive potential o f
analyses that lie in the interstices of gender and sexuality, feminism and
queer theory.34

In a more recent intervention in the feminism/queer theory debates,
Janet has provocatively argued that it is time to "give feminism a break."
Janet has demonstrated the conflicts between dominant variants of feminist
critique and queer theory in the context of sexual harassment law, with

33 Rubin, supra note 23; Sedgwick, supra note 23.

34 Judith Butler, Against Proper Objects, in Feminism Meets Queer Theory I
(Elizabeth Weed & Naomi Schor eds., 1997).

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Columbia Journal of Gender and Law

feminist "victories" producing queer losses. She argues that it may be time
"to urge feminists to learn to suspend feminism, to interrupt it, to sustain its
displacement by inconsistent hypotheses about power, hierarchy, and
progressive struggle."35 Janet's methodology is a productive one. It has
allowed her to produce counter narratives of the operation of power on the
terrain of sexuality, narratives that were obscured from within feminism's
male/female binary.

Yet, as a methodology, taking a break from feminism runs the risk
of reproducing some of the problematic effects of the feminism/queer
theory r upture. While Janet recognizes the diversity within feminism and
the deep ideological divisions within feminism on issues of sexuality,
thereby avoiding the simplistic fermnism/queer theory, gender/sexuality
dichotomies, "Taking a Break" from feminism risks leaving in place rather
than "moving between" the polarized worlds. 36 It is a risk, however, that
can be mitigated, paradoxically, by supplementing taking a break from
feminism with feminism.

In my view, feminism after the critique of queer theory-
particularly its focus on gender as an axis of power-continues to have
analytic purchase. Feminism should not shy away from its expertise in
analyzing the multiple operations of gender. Gender, when understood
broadly as, in Joan Scott's words, "a primary way of signifying
relationships of power,, 37 as a way in which material and symbolic
resources are produced and distributed in asymmetrical ways, remains an
important foundational and analytical frame of feminism. Gender still
matters in the world in real and symbolic, discursive and material ways. But
it need not be an exhaustive analytic frame. Feminism, as an analytic lens
on gender as an axis of power, can and should be supplemented, challenged,
and confused by other theoretical and analytic frames.

Theorizing sexuality needs to be able to bring gender as an axis of
power into view. But feminism must also be attentive to the limits of its
imagination. Feminism must sometimes leave its feminism behind, however
momentarily, to allow a critical engagement beyond its own imaginative
borders. But feminism must also be encouraged to travel back. A
reinvigoration of feminist critique lies in both a return to and a decentering
of feminism.

35 Janet Halley, Sexuality Harassment, in Left Legalism/Left Critique 80, 102
(Janet Halley & Wendy Brown eds., 2002).

36 The idea of moving between polarized positions is borrowed from Biddy Martin,

Sexualities Without Genders and Other Queer Utopias, 24 Diacritics 104 (Summer-Autumn
1994). Janet's focus on governance feminism, radical, and culture feminism similarly runs
the risk of obscuring the potential insights of the multiple variants of more marginal
feminisms that live more closely on the porous borders between the feminist and the queer.

37 Joan Wallach Scott, Gender and the Politics of History 42 (1988).

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Reading Twyman Through a Feminism After

It is just such a feminism decentered and enriched by the insights of
queer theory that remains an indispensable resource for understanding cases
like Twyman. 3 I cannot make sense of Twyman without a critical
engagement with feminism and its multiple discourses of gender. The
various opinions animate many feminisms: dominant strands of liberal,
dominance, and cultural feminism, and more marginal strands of sex-
positive, queer/postmodem feminism, and redistributive feminisms.
Alternative readings, both within and without feminism, are needed to
supplement and disrupt, analyze and destabilize, dominant feminist readings
of this case. But, unlike Janet, I need feminism to critique what is wrong
with feminism. While I rely on the insights of queer theory in this
disruption, I nevertheless need to keep a critical eye on the discourses of
gender in analyzing the deployment of sex and sexuality.

Liberal, dominance, and cultural feminists would more or less agree
on their analyses of this case, differing only in emphasis.39 The story would
go something like this. S/M is part of the systemic sexual subordination of
women by men, and therefore, the S/M sexual encounter in the marriage
should constitute an actionable sexual harm. The plurality got it wrong by
applying a gender neutral standard that excludes women and their unique
experiences of harm, thereby reinforcing the sexual subordination of
women by men. But at least the plurality sent the case back for retrial on the
basis of the intentional infliction of emotional distress. By contrast, both
Chief Justice Phillips and Justice Hecht got it completely wrong by
immunizing the private sphere of the family from intervention, and thereby
failing to recognize the harms women suffer within this sphere and
reinforcing the sexual subordination of women by men. Both failed to
interrogate the gendered impact of the refusal to recognize this tort, and the
extent to which both sexuality and the family are sites of women's
subordination. By contrast, the dissenting opinion of Justice Spector would
be heralded as a feminist victory in recognizing the unique harms that
women suffer at the hands of men and connecting the harm of emotional
distress to the broader issue of violence against women.

38 Twvman v. Twvman 855 S.W.2d. 619 (Tex. 1993).

39 Liberal feminism would highlight the ways in which a gender neutral standard
excludes women and their experiences of harm. Radical feminism would highlight the ways
in which women's subordination in and through sexual practices are rendered invisible in
law's objectivity. Cultural feminism would highlight the exclusion of women's unique
experiences of harm from the law, and argue for the need to accommodate these experiences
within the Iaw. While the three strands of feminism blend together into a single feminist
reading, there is a difference in emphasis: exclusion, subordination, and the need for
inclusion, respectively.

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Columbia Journal of Gender and Law

This is a feminist reading. But, it is not the only feminist reading to
which the case could be subject. Redistributive feminism, for example,
would r ead Twyman from t he point o f view o f gender o ppression, but it
would deploy a very different analytic framework, with very different
conclusions. It would retain a focus on the family as a site for the
production and operation of gender as an axis of power. It might focus its
analysis on the operation of dominant familial ideologies and the ways in
which those ideologies shape and reinforce deeply gendered assumptions,
roles, and responsibilities within the family. This reading might highlight
the ways in which the opinions of Hecht and Phillips were shaped by the
ideologies of affective privacy. A redistributive feminism might consider
the distributional effects of the case in terms of the allocation of resources
on family breakdown. It might evaluate the decision in Twyman from the
broader context of the transformations in the legal regulation of the family.
How does the effort to reintroduce fault operate within the context of the
fundamental restructuring of family law from fault to failure? To what
extent might the reintroduction of fault serve to undermine the efforts to
recast family breakdown as primarily a question of restructuring financial
and parenting relationships. Might the reintroduction of fault, particularly in
the context of sexual harm, undermine family law's focus on equitable
redistribution by refocusing attention on moral culpability?

Sex radical feminism would read Twyman very differently. It
would dispute the normative and analytic assumption of dominance
feminism that S/M sexuality is part of the systemic sexual subordination of
women by men. Indeed, sex radical feminism rejects the very premise of
dominance feminism that sexuality constitutes the primary site of women's
subordination, insisting that sex and sexuality is a far more ambivalent site,
producing multiplicities of pleasures and dangers. Similarly, it would not
frame S/M sex as inherently harmful to women, but as a potentially
pleasurable and subversive sexual practice. A sex radical feminist reading
would question the liberatory potential of recognizing S/M as a potentially
actionable sexual harm, arguing instead that increased surveillance and
regulation would reiterate a conservative sexual morality that has been
highly problematic for women. Such a feminist reading would dispute the
gendered assumptions of the dominant feminist narrative that women need
to be protected from aggressive, male sexuality, arguing that such a
protectionist approach simply reconstitutes women as weak, hapless,
powerless victims. Sex radical feminism would insist on women's sexual
agency, on their ability to negotiate the treacherous terrain of sexuality,
consensually seeking pleasure and avoiding danger. But this feminist
reading would not celebrate Twyman as a feminist victory, since the
opinions each demonstrate a distaste towards a Iternative sexual practices,

40 Rubin, supra note 23.

620 [Vol. 12:3



Gender, Sexuality, and Power

thereby reiterating the same underlying conservative sexual morality. Sex
radical feminism would reveal the ambivalent discourses of sex and
sexuality underlying the decision.

A queer theory postmodern feminism informed by the work of
Judith Butler would provide yet another reading of Twyman. It would
consider how the claims o fh arm and t he d eployment o f l egal discourses
reiterate the very foundational categories of man/woman, male/female that
feminism needs to disrupt. Feminist claims of harms to women help to
produce the very bodies, subjectivities, and identities who experience this
harm.4' Such a reading of Twyman would be concerned with the extent to
which a legal recognition of emotional distress for a sexual harm associated
with a consensual practice would discursively produce women who do
suffer these harms, that is, it would reiterate Woman as a victim of men's
sexual subordination, as a subject who lacks sexual agency and who
experiences psychic trauma from sexual engagements. This feminist
reading would be concerned that this recognition of women's sexual injury
by men would operate to further instantiate a heterosexual matrix that
produces and polices sexed and gendered bodies. Such a reading would be
centrally concerned with the discursive closures produced by these
reiterations of gender.

Both sex radical feminism and queer theory feminism would have
something to say about the fact scenario that gave rise to the claim for
emotional distress. The "facts" of the sexual encounter are murky, told to us
only through the court's narrative of "deviate sexual acts. ' 42 In a footnote,
the plurality tells us the lower court found that William "attempted to
emotionally coerce [her] in 'bondage' on an ongoing basis. ' ' 3 A slightly
different account is provided in Justice Hecht's opinion, in which he
describes the sexual encounters as 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. '" The S/M
encounters ceased when Sheila told her husband that she associated the
activities with her trauma of being raped at knifepoint earlier in her life, and
that she did not want to participate any further. We know little else of the
sexual dynamic and erotic desires of this couple, aside from the fact that
William's S/M desires did not wane, but ultimately led him to pursue his
fantasies outside the marriage.

While the dominant feminist narrative, with its radical feminist
influence, has no difficulty condemning the sexual encounter as abusive and

4 ' Halley, supra part III, at 610-11; see also Wendy Brown, States of Injury: Power
and Freedom in Late Modernity (1995).

42 Twyman, 855 S.W.2d at 620.

43 Id. at 620 n. I (quoting the lower court).
44 Id. at 636.

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oppressive, sex radical and queer theory feminism would have
counternarratives to tell. Sex radical feminism, in keeping with its
insistence on sex and sexuality as ambivalent, producing the possibilities of
pleasure and danger, would focus attention on the question of consent.
While the absence of consent could justify legal intervention, if the sexual
encounters appeared to be consensual, if Sheila Twyman agreed to
participate in the bondage, then the fact that she did not enjoy the sex
encounter would not be sufficient to make it actionable. Sex radical
feminism would emphasize that although consensual S/M may not be to
everyone's erotic taste, it should be recognized as a legitimate sexual
choice.

Queer theory feminism would similarly be interested in the
multiplicities and ambivalences of sexuality, though its focus would not be
on liberal conceptions of consent. Queer theory feminism would be
interested in the potential for gender to be performed subversively. It would
turn its critical eye to the ways in which S/M practices may disrupt
dominant iterations and performativities of gender, seeking in turn to
undermine the gender/sex/heterosexuality triad. Alongside sex radical
feminism, it might explore the ways in which much S/M practice and
imagery inverts the male subject/female object narrative of radical
feminism. In much S/M imagery and practice, women perform sexually
powerful, both self-possessed and other controlling, roles; they are the
dominatrixes, men are their slaves. But, while this might be enough to
affirm the liberatory potential for sex radical feminism, queer theory
feminism would remain skeptical about such a simple reversal that remains
firmly anchored within a heterosexual matrix. It would also be skeptical
about such stable and coherent subject positions, either subject or object,
self-directed or other controlled, seeking out instead the ambiguities of
desire and the instability of identity.

Further, the S/M encounter in Twyman was not one in which the
gender roles were reversed, at least not clearly so. Sheila agreed to
participate, at the encouragement of her husband, and ultimately did not
find the experience to be redemptive. While we know little about her sexual
psychic life, she is not the dominatrix of popular culture S/M chic. This is
no simple, celebratory reversal of gendered narratives. Nor is it one in
which we even get to delve into the mysteries of female masochism, A la
Jessica Benjamin. Unlike the film Secretary, where Lee Holloway, the lead
character, comes to terms with her own masochism, redirecting her psychic
trauma from self-mutilator to slave, Sheila finds no transcendence in her
brief encounter with bondage. She is neither dominatrix nor slave, top nor
bottom. H er e xperience i s a complicated o ne-consensual, but disturbing
for reasons that we cannot fully access. The ambiguities dissolve in the face
of t he s tory t hat S heila subsequently t ells: a s tory o fb eing "forced" into
S/M against her will, a story of adding injury to her psychic trauma of
sexual violence, a story of a husband's deviant and uncontrollable sexual

622 [Vol. 12:3



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practices ultimately destroying their marriage. She is no longer a sexual
agent, but a sexual victim; the S/M encounter is no longer a complicated
mix of erotic desire and abjection, but a coercive humiliation, made worse
by her husband's subsequent infidelity. A queer theory feminism might
seek to reveal these instabilities and ambiguities in the constitution of
subjectivity and in the subject's effort to repudiate them through a victim
narrative.

Together, sex radical, redistributive, and queer theory feminist
readings would dispute and disrupt the dominant feminist reading of
Twyman. But, each of these readings retains a focus on gender as an axis of
power, as "a primary way of signifying relationships of power." 45 Each of
these readings suggests that the material and discursive implications of the
case must include an analysis of gender, and its complex intersections with
the discourses of sex and sexuality.

While these alternative feminist readings produce important
insights into the operation of sexuality and its legal regulation in Twyman,
queer theory can further disrupt and supplement these insights with its own
reading of the case. Queer theory might consider the disciplinary
implications of the surveillance of sexuality for subjects whose bodies are
marked by "other" sexualities: S/M subjects, queer subjects, transgendered
subjects, sex worker subjects, and others whose bodies are erotically
charged. Queer theory could read Twyman as a performance of
heterosexuality, with the court, for example, policing the boundaries of
stable heterosexual sexuality. Its focus on the contingencies and
ambivalencies of sexual identity might consider the ways in which the S/M
encounter in Twyman produced a disruption in the heteronormativity of
marriage. But unlike a feminist reading, this focus on the heteronormativity
of marriage would have nothing to do with gender as an axis of power.
Rather it would interrogate the role of marriage in producing the
heteronormative m atrix and t he h etero/homo binary. Such a queer theory
reading of Twyman can provide a part of the story that feminism with its
focus on gender simply cannot tell. Feminism needs to make space for the
idea that critique that does not center gender may produce valuable insights
into the workings of sexuality. And in allowing for the possibility of its own
decentering, the alternative feminist readings of sex radical and queer
theory feminism could be significantly enriched.

Conclusion: Disrupting Feminism

Decentering feminism is part of a broader project of disrupting
feminism, that is, of reversing "the radical foreclosure of the very

45 Scott, supra note 37.

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intellectual range and reach., 46 Feminism, particularly in its dominant
modalities, has foreclosed intellectual range and reach. It has seriously
narrowed intellectual inquiry, prioritizing politics over critique. It has
cemented a gendered lens as the only lens, and again in its dominant
modalities of radical and cultural feminism, endeavored to cement a very
particular gendered lens. The threat and the electrifying energy that
postmodernism, postcolonialism, and queer theory has brought to this
feminism is precisely its disruptive power, its challenge to the foundational
concepts such as identity, rights, and reform. Feminism after the critique of
feminism must be able to tap into these high voltage power lines. It must
not be afraid to return to gender, nor rethink its meaning, its deployment,
and its porous borders. In the realm of sexuality and beyond, the feminism
of "feminism after" must be prepared to rethink the limits of its own
categories and imagination, and deploy alternative analytical frames to
move beyond these limitations and back again.

V. DAN DANIELSEN: WHAT'S IN A NAME? STAKES AND
CONSEQUENCES IN DEFINING FEMINISM(S)

The conference organizers have asked us "Why a Feminist Law
Journal?" T heir q uestion provokes debate a bout how w e s hould imagine,
identify, claim, or define what "is" and "is not" feminist. I would like to
sharpen these issues in the context of the Twyman case to focus our
attention on what is at stake in this definitional project. I start with the
observation that Janet and Brenda approach the project of defining
feminism quite differently.

I would describe Janet's project as an attempt to define feminism in
order to contain it. She develops a map of feminist thought based upon the
male/female split and gender subordination. This map is designed to enable
her to get intellectually and methodologically "outside" feminism, both to
consider alternatives and to get some critical purchase on the "inside"-
feminism itself. Her suggestion that we "Take a Break from Feminism" is
not only a call to resist the theoretical tradition her map articulates. She is
also seeking an exit from the identity position, worldview, will to power,
and moralism she associates with the male/female, dominance/submission
models of feminism. Thus, Janet's containment project defines "feminism"
so that we can know when we are not doing it and when we are doing
something else.

By contrast, Brenda's project attempts to define feminism in order
to preserve it. Her focus on the "gender lens" and on gender "as a primary
way of signifying power" suggests, at least metaphorically, that there may

46 Wendy Brown & Janet Halley, Introduction, in Left Legalism/Left Critique,

supra note 35, at 1, 33.

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be other lenses and that the feminist gaze or view may capture but one way
of signifying power. Nevertheless, for Brenda the feminist view is broad,
with plenty of room for multiple feminisms with very different intellectual
and political agendas. For example, Brenda's definition would seem to
include Janet's project, or at least parts of it, inside the feminist big tent.

How would the Twyman opinions look from these quite different
perspectives? The opinions would seem to have various "outcome"
implications-for men, women, married persons, for the legal field, for
divorce, for power within the couple, for feminism. Which of these
outcomes might most reasonably be termed "feminist"? Are some opinions
decidedly not "feminist"? What might these characterizations themselves be
implying? Can we evaluate our own opinions about what is and is not
feminist by reference to the outcomes they generate?

Turning to the case, my sense is that both Janet and Brenda would
classify Justice Spector's dissenting opinion47 as "feminist"--employing
strands of dominance and cultural feminisms. Evidence for this position
would include Spector's opening characterization of the lower divorce
court's decree as "an award to Sheila Twyman of $15,000 for the years of
abuse she suffered at the hands of her husband ' 48 and her assertion that
William's bondage requests could only be understood as "grossly offensive
conduct" that were the "direct proximate" cause of Sheila's mental
anguish.49 There was no doubt in Spector's mind about what happened, or
about who was victimized by whom or about the "reality" of Sheila's
psychic injury. Spector's certainty about Sheila's superiority to her husband
and moral innocence exemplifies the cultural feminist perspective, at least
as characterized by Janet.

Spector also evidenced feminism's structuralist sensibility (again
using Janet's terminology) when she suggested that the injury to Sheila was
parallel (equivalent?) to the injuries regularly done to women by men, and
when she suggested that these injuries were exacerbated (reenacted?) by the
court itself in refusing to recognize Sheila's claim for negligent infliction of
emotional distress. Spector stated, "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 this court takes a step backward and abolishes one way of
righting this grievous wrong., 5 0

Spector's structuralist (dominance) feminism is strengthened by her
assertion that the infliction of emotional distress is primarily, if not

47 Twvman, 855 S.W.2d at 640-45.

4 Id. at 640.
491d. at 641.
50 /d. at 643.

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exclusively, a "male" problem. She stated, "since the overwhelming
majority of emotional distress claims have arisen from harmful conduct by
men, rather than women, I do argue that men have had a disproportionate
interest in downplaying such claims.5 In each of these ways, Spector's
opinion would qualify as feminist both in Janet's male/female, gender
subordination framework and in Brenda's "gender lens" framework.

None of the remaining opinions qualify as feminist from Janet's
perspective, while Brenda's "gender lens" framework might bring a couple
more into the feminist fold. F or example, in Justice H echt's concurrence
and dissent,5 2 he concurred in the reversal of the divorce decree and
damages but refused to recognize the tort of intentional infliction of
emotional distress. It would be easy to read him as a traditional anti-
feminist who hesitates to recognize or remedy emotional harms. He refused
to treat women as either the primary victims of or the primary beneficiaries
of a remedy for emotional distress.53 He focused on the emotionally
vulnerable situation of both partners in a marriage and their reciprocal
abilities to cause each other tremendous pain.54 He worried that men and
women will routinely bring emotional distress claims in divorce
proceedings and that sorting the compensable from non-compensable harms
would p rove intractable. 55 H e found n o ready metric t o measure whether
Sheila's emotional pain resulted from the a ffair her husband was having,
from the breakup of the marriage, or from the requests for S/M sex.56 He
was concerned that prejudice will prove the only basis for courts and juries
to decide what is "outrageous" conduct for purposes of the tort,57 and he
worried that courts will intrude too deeply into the intimate details of
married couples' emotional and sexual lives.5 8 It would be easy for both
Janet and Brenda to place this discourse outside feminism.

At the same time, H echt does seem to recognize that women are
both victims and victimizers, that mutual emotional vulnerability might be a
positive as well as a negative aspect of intimate relationships, that letting
juries decide what constitutes "outrageous" conduct in a marriage might
well affect sexual autonomy and experimentation within marriage, and that
seeing the emotional distress as a "women's remedy" is demeaning to

SI Id. at 642.
52 Id. at 629-40.

53 Id. at 638-40.

I Id. at 637.
55 Id. at 634-36.

56Id. at 636.
57 Id. at 632-34.

5 Id. at 637.

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women. These positions fit comfortably within Brenda's description of sex
radical and postmodem feminist positions. If she is right, we could also
describe Hecht's opinion as "feminist." Hecht's positions also seem to be
part of what Janet hopes to access by "Taking a Break from Feminism."

Much of the same could be said for Chief Justice Phillips's
arguments regarding the intimacy and mutual vulnerability of marriage and
the intrusiveness of court scrutiny. 9 Phillips concurred in the recognition of
the tort of intentional infliction but dissented as to its extension to married
couples. 60 Thus Phillips, like Hecht, might be a hero for sex radical
feminists or postmodern ones.

In addition, Phillips made arguments that evoke another of
Brenda's feminist categories: redistributive feminists. In arguing that the
court should recognize intentional infliction of emotional distress as a tort,
but not between married couples, he worried that the tort could become the
dominant factor in the allocation and distribution of the marital estate. As
Phillips put the problem:

The court had broad discretion to weigh any fault along with
other appropriate factors [for dividing the marital estate], such as
relative financial condition, disparity of ages, and the needs of the
children. Now, however, where fault takes the form of
"outrageous" conduct intentionally or recklessly inflicted, it
becomes a dominant factor that must be considered at the
expense of the other factors. Unlike battery, fraud, or other torts
resting on more objective conduct, a colorable allegation of
intentional infliction of emotional distress could arguably be
raised by one or both parties in most intimate relationships.61

In other words, the tort becomes another potential weapon in
negotiating the distribution of the marital estate, and, like Hecht, Phillips
did not seem convinced this new weapon would redound to the woman's
benefit.62 Like a good redistributive feminist, Phillips had serious dollars
and cents concerns about whether this new cause of action would not be
detrimental to the gains resulting from the abolition of the fault-based
divorce scheme. Thus, by my reckoning, Phillips's opinion could be fairly
described as feminist from a sex radical feminist, a postmodem feminist, or
a redistribution feminist perspective. At the same time, this cool-headed
analysis of distributional impact is part of what Janet promises us if we take
a break from the overheated sentiments of feminism.

'9 Id. at 627-28.

60Id. at 626.
61 Id. at 627-28.

62 Id. at 628.

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This leaves us with the plurality opinion recognizing the tort of
intentional infliction of emotional distress in the marital relationship and
remanding the case for further findings. 63 My guess is that neither Janet nor
Brenda would classify the plurality opinion as "feminist." This seems in
part because the opinion rejects both Spector's more traditional feminist
assertions of the gendered nature of the harm as well as the sex radical or
postmodern feminist concerns about pleasure, autonomy, and power
expressed by Hecht and Phillips. 64 Writing for the plurality, Justice Cornyn
refused to see the tort of emotional distress in the context of marriage and
divorce as affecting a gendered dynamic of power. From this perspective,
this opinion falls outside even Brenda's broad "gender lens" definition of
feminism. On the other hand, although the opinion evades any focus on
gender, it strongly resonates with a liberal/equality feminism by recognizing
women's autonomy and subjectivity outside the confines of male
dominance while also affirming and compensating egregious abuses of
marital relationships. Perhaps this perspective is part of what Janet has in
mind with her "Take a Break" strategy but I believe her description of
feminism would overlook the feminist aspects of the plurality position.

What should we make of the idea that all the positions taken by the
justices could be lined up with fairly prominent, widely-held feminist
positions? 65 Even if we recognize, as we must, that these positions might be
subject to critique by other feminist positions or by divergent views within
particular feminist positions, the fact that they are subject to contention
cannot preclude them from being designated "feminist." But if each of these
radically different and contradictory opinions can be reasonably understood
as "feminist," what can we say is gained or lost by calling one or another
"feminist"?

A common response shifts the focus from a conceptual definition of
feminism, like the ones offered by Janet and Brenda, to a more pragmatic,
outcome-focused one. Perhaps one could decide which opinions or
outcomes to call feminist simply by asking which are better for women.
Still this shift in focus does not get us far. Each strand of feminism, like
each opinion in the Twyman case, is working toward its own vision of what
is good for women. A focus on outcomes simply reframes the question as
one of "Which women?" or "Good in what sense?"

63 Id. at 619-26.

64 See id. at 622-24.
65 While I have not treated Justice Gonzalez's opinion separately, the moral tone

and unequivocal certainty of his opening paragraph suggests that he might well be in Justice
Spector's feminist camp. On the other hand, he did not join Justice Spector's dissent, so I
could be wrong. Unfortunately, he simply offered us too little text to form a clear opinion.
See generally id. at 626.

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For example, for the dominance or cultural feminists aligned with

Justice Spector, recognition of the tort of negligent infliction of emotional
distress would have been an affirmation of the reality of gender
subordination and a means of compensating for systematic emotional injury
of women by men. Even this would, of course, only be the first step in
assessing this outcome. To complete the analysis, we would need to explore
what would happen next. Who would use the new tort? Against whom?
Would there be a backlash? How would this regime compliment or disrupt
related regimes?

At the same time, for a sex radical or postmodern feminist aligned
with Justice Hecht, recognition of the tort would be bad for women's
agency, autonomy, and freedom of sexual experimentation, allowing juries
to adjudicate after the fact what is "outrageous" in the emotional or sexual
treatment of the parties to an intimate relationship. For redistributive
feminists perhaps aligned with Chief Justice Phillips, recognition of the tort
in the marital context might be good for women if it leads to larger awards
of the marital property. It could also be bad for women if it results in a
higher bar for fault than the court might have required in divorce
proceedings before the tort was permissible or if husbands successfully
assert tort claims on a regular basis that would not have been recognized
previously under a no-fault or a more discretionary system of marital
property allocation.

It turns out that we cannot escape the differences within and
amongst feminists about what will, in fact, be most advantageous for
women. It is clear that this is not a new situation for feminism or feminists.
Nor should we necessarily see this as a crisis for feminism or feminist law
journals. For some feminists, dealing with such differences is what
feminism is all about.

What remains unclear is how adopting either Janet's or Brenda's
strategy about feminism as a whole might affect the status of forces among
these positions. The definitional strategies suggested by Janet and Brenda
might lead to quite different intellectual, political, and personal practices.
At a personal level, Janet's feminist containment strategy might lead one to
leave feminist methods, identifications, and commitments behind and move
on. On the other hand, it might enable some people to get enough critical
purchase on feminism to define a new place for themselves and their
projects within it. A "big tent" strategy like Brenda's may intensify or erode
a person's sense of feminist identity and community. Further, beyond the
personal, these strategies might well have different consequences for the
field and for the distribution o f resources, status, and power in feminism
and in society. In either case, it would be helpful to know--or at least to
wonder-about these second order consequences before deciding to go with
either Janet or Brenda.

Notwithstanding their quite different approaches, at some level both
Janet and Brenda seem indifferent to differences within feminism. For

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Brenda, being a feminist does not mean you agree with other self-described
feminists about any aspect of gender, power, or what is good for women.
For Janet, "Taking a Break from Feminism" means leaving it all behind,
even the parts she might find least problematic.

Yet both strategies seem to facilitate some perspectives and obscure
others. Employing Janet's "Take a Break" strategy would arguably enhance
our ability to identify instances of slave morality in gendered contexts and
trace trajectories of power outside the M > F paradigm of many feminist
discourses. Yet it may make it harder to see those situations when structural
subordination is an accurate description of the situation or when gender
discrimination, as traditionally understood, is the best available explanation
for the behavior and consequences of certain acts. Further, from the
pragmatist's perspective, we cannot decide whether or not signing on to a
"Take a Break" strategy is a good idea until we know more about how such
a strategy would impact the women or men or politics or subjectivities we
most care about promoting and at what cost to other constituencies. What
kinds o f w omen and men, w hat sexualities, w hat d omestic arrangements,
what employment opportunities would be promoted or retarded by "Taking
a Break from Feminism"?

We should ask the same questions about Brenda's "big tent"
strategy. It will also come with costs as well as benefits. Diverse interest
groups often get lost in broader political coalitions or movements-will
something similar happen in Brenda's big tent? If your theoretical
perspective or political project is quite different from or critical of more
prominent or well-known feminist perspectives, should you take a break or
enter the tent? What will be the impact on a mainstream feminist agenda of
associating with other perspectives, projects, and politics in the tent?
Adopting Brenda's "big tent" feminism might mean that you will have to
accommodate and therefore legitimate a broader range of "feminist"
projects than you would yourself support, perhaps including some projects
you t hink would b e bad for the w omen you most c are a bout or e ven for
women generally. Moreover, it remains altogether unclear what the "real
world" consequences of such a broad feminist coalition would be. Would it
make the divergent feminist positions more effective? Less effective?
Generate more effective opposition?

These questions become all the more dramatic if we imagine
feminism not as a marginal academic discourse but as a governance project.
It is one thing to have deep ideological disagreements when you are an
opposition group or outside the citadels of power. Left politics is full of
such debates, rifts, and struggles. Bpt now, thanks in large part to feminist
successes, feminists and feminist perspectives have power and purchase in
many political contexts. Under these new conditions, what does it mean for
feminists to be on both sides of a law reform project like expanding or
contracting the sexual harassment laws or creating tort remedies for
emotional distress in the marital context? Does either side gain from the

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feminist association or from denying it? What might one refrain from
saying or doing in the name of feminism or in the name of taking a break
from it? What alliances might you avoid? What constituencies might you
empower by taking one or another of these positions? Which might you
disable?

These questions can only be answered in the context of real
political choices about winners and losers. It seems to me they remain on
the table whether one is "Taking a Break from Feminism" or sitting
comfortably-or uncomfortably-within the "big tent."

VI. TRACY HIGGINS: IS FEMINISM ENOUGH?

In asking whether feminism is a sufficient tool for the analysis of
sexuality, this discussion raises two related areas of inquiry. The first
concerns the boundaries of feminism itself: what does it mean when we say
that a critique is feminist? The second c oncerns alternatives to feminism,
particularly nonfeminist left critiques: how do such nonfeminist critiques
contribute to an understanding of sexuality and its regulation? And, more
specifically, how might they reveal the regulatory implications of a feminist
agenda?

Dan's analysis of Twyman focuses primarily on the first question.
Dan argues that all of the opinions in Twyman can be read as "feminist" in
some sense, ranging from a dominance feminist critique in Justice Spector's
dissent to a sex radical reading of Justice Hecht's opinion. He rightly asks
what this means for feminism given that the justices disagree on so many
points and reach different conclusions. Brenda argues, equally
convincingly, that each of the opinions is subject to a thoroughgoing
critique from one or another type of feminism. Indeed, the opinions might
even be read as anti-feminist or at least unfeminist (as opposed to Janet's
nonfeminist readings). For example, as Brenda points out, the plurality
opinion got it wrong from a feminist standpoint by applying a gender
neutral standard that excludes women and their unique experiences of harm.
Chief Justice Phillips and Justice Hecht both got it wrong by insulating the
private sphere of the family and thereby reinforcing women's subordination
to men in that sphere. Finally, even Justice Spector may have gotten it
wrong: from a sex radical standpoint, characterizing S/M as necessarily and
uniquely harmful to women further reinforces women's victimhood and
invites further conservative regulation of sexuality.

So, to complicate and reinforce Dan's point, each of the
contradictory opinions can be read. not only as "feminist" but as
"unfeminist" as well. This foregrounds the question of whether feminism is
simply indeterminate. The question arises not just because of the
postmodem challenge to the coherence of the category "women" but
because, even assuming the meaningfulness of the category, feminism just

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means too many different things to too many different people. This is
especially problematic for a theoretical enterprise joined to an identity-
based political movement. How can contradictory political claims be
understood as feminist without undermining the effectiveness of the
movement? It is also a serious challenge to the enterprise that is the focus of
this symposium, the feminist law journal. H ow s hould a feminist journal
pursue its mandate in the face of utterly incommensurate assumptions and
assertions about what feminism is?

Without attempting to answer these questions directly, Brenda
offers an appealing way simultaneously to preserve the complexity of the
relationship among various feminist theories and to acknowledge that
feminism itself has boundaries, disputed though they may be. She writes,
"Feminism needs to make space for the idea that critique that does not
center gender may produce valuable insights into the workings of
sexuality. '66 I agree. Moreover, such a recognition offers at least a couple of
benefits for feminism. First, acknowledging boundaries is a way to resist the
indeterminacy problem--feminism is everything to everyone and therefore
nothing (or at least nothing very interesting or provocative). Second, as
Brenda notes, "the alternative feminist readings of sex radical and queer
theory feminism could be significantly enriched, 67 by such nonfeminist
critiques.

Here I would observe a significant point of difference between
Brenda and Janet. By emphasizing the overlap of feminism with
nonfeminist/left critique, Brenda's paper treats "Taking a Break from
Feminism" as either neutral toward or beneficial to feminism. Maybe, but
maybe not. It seems to me that Janet goes considerably further to suggest
that we need to "Take a Break from Feminism" not--or at least not
simply-because the resulting insights might enrich feminism but for other
reasons. First, assuming that feminism can explain Everything-or,
somewhat more modestly, everything about sexuality-is paranoid,
dishonest, or even a little silly. Second, and more importantly, assuming
that a theory of gender subordination, which Janet considers a definitional
component of feminism, can fully account for the domain of sexuality
allows feminists to ignore the consequences of our power and even the fact
that we wield power at all. Perhaps to oversimplify, the point is that
feminist gains might mean not less oppression for everyone but different
oppression resulting from an exercise of feminist power. Nonfeminist
left/progressive readings (or "Taking a Break from Feminism") could reveal
feminist complicity in that oppression and, one hopes, encourage us to
grapple with it.

66 Cossman, supra part IV, at 623.
67 Id. (emphasis added).

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So why is the idea of "Taking a Break from Feminism" so hard for
feminists to take? Why is it so provocative and controversial? I would like
to suggest three reasons. First, it seems dangerous and threatening to the
interests of w omen i n t hat i t creates openings t hat c ould b e exploited b y
interests h ostile to women and feminism. S econd, just a s many feminists
resented Catharine MacKinnon's insistence that "radical feminism is
feminism,, '6 8 so too we might resent Janet's assertion of what feminism is
not and, by implication, what it is. Finally, I think it is also because we do
not like to consider the possibility that feminism is not good for everyone,
indeed it might be bad for groups of people we do-or ought to-care
about. Or put differently, we might feel that Janet is being a bit too hard on
feminists and our unreflective will to power.

Janet acknowledges the first objection that "Taking a Break from
Feminism" might be dangerous. Indeed she assumes that it could harm both
the cause of women generally and individual women-for example by
rendering them more vulnerable to sexual violence than they would
otherwise be. She insists, however, that these risks are worth taking, both
because refusing to "Take a Break from Feminism" carries its own risks and
because doing so offers benefits. Her analysis of these risks and benefits
provokes the other two objections I have noted: that her definition is too
narrow, and that as a result, she is too hard on feminism. These objections
are important because they affect one's assessment of the cost/benefit
analysis of "Taking a Break from Feminism."

In order briefly to explore this definitional objection, I would like to
test Janet's critique of feminism by beginning from Brenda's definition and
asking whether the costs of adhering to such a perspective still obtain. Janet
defines feminism a s having two (really three) fundamental elements. S he
suggests that a feminist position must "make a distinction between M and
F," 69 and "posit some kind of subordination as between M and F, in which F
is the disadvantaged or subordinated element,, 70 and "carr[y] a brief for
F."'', In contrast, I think Brenda would be satisfied with the first and third
elements-a focus on gender and the interests of "F" without the
assumption of a relationship of subordination. To be fair, Janet does
acknowledge that feminists differ with respect to whether women's
subordination is structural or episodic, but she suggests that the usefulness
of feminism is limited to the fact of women's subordination: "if male
dominance is not always already there, then we don't always need
feminism. '72 In other words, in Janet's argument, the relevance of feminism

68 Catharine A. MacKinnon, Toward a Feminist Theory of the State 117 (1989).

69 Halley, supra part III, at 604.

70 Id.

71 Id.

72 Id. at 605.

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maps perfectly the boundaries of male domination, assuming that those
boundaries even exist.

To present her argument most powerfully, Janet cannot adopt
Brenda's definition of feminism because she needs feminism to be about
subordination. Indeed, all but one of the costs she ascribes to feminism, "the
conceptual priority of M/F, and the normative or political priority of
perpetually carrying a brief for F,"73 arise most directly from the
assumption of subordination, M > F rather than the other elements. For
example, according to Janet the brain drain in academic feminism results, at
least in part, from an inability to acknowledge the possibility of analyzing
gender while suspending the assumption of subordination. The bad faith she
ascribes to governance feminism (its inability to see the blood on its hands)
comes not from a focus on gender per se or even from carrying a brief for F
(though that might account for the blood itself). Rather, the blindness to the
costs of governance feminism comes from feminism's assumption of its
own powerlessness, a corollary of M > F. Janet makes similar arguments
with respect to feminist power masquerading as servitude and "moral
perfectionism and magic realism. '74 Again, I understand these costs as
rooted primarily in an assumption of subordination rather than what Brenda
calls a gender lens.

Of the various costs Janet ascribes to unbroken adherence to
feminism, the only one that is associated with the gender lens itself rather
than the assumption of subordination is the role that feminism may play in
constituting women, heterosexuality, and women's suffering. Here she cites
Judith Butler as "turning feminism against the M/F distinction itself' '75 to
reveal "its own role in producing the discursive strictures that require there
to be women., 76 She extends this argument to M > F and asks whether
feminism, premised on this assumption of subordination, could be
"contributing to, rather than resisting, the alienation of women from their
own agency., 77 Perhaps so; but I would suggest that performing this
analysis itself requires feminism, at least in the sense that Brenda means it,
in that we must see the situation in terms of gender and evaluate the
consequences from the standpoint of women in order to know whether the
premise of M > F is complicit in maintaining M > F.

In short, what Dan calls Brenda's "big tent" feminism (which is still
very much recognizable as feminism and perhaps more so than Janet's, at
least for some of us) greatly reduces, i t seems to me, many of the costs

73 Id. at 607.

74 Id. at 609.
751d. at 610.
76 id.

77 Id. at 611.

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Janet associates with steadfast adherence to a feminist position. And, to
address the third of my objections, it suggests that Janet may be a bit too
hard on feminism broadly defined. I do not mean to suggest that she has set
up a straw man in the service of her "Take a Break" argument, but that her
target is properly something less than feminism as a whole. I find her
argument most c ompelling with respect to a p articular kind o f feminism,
albeit one that is widespread and influential, that assumes not only
subordination but structural subordination. Of course, challenging us to
"Take a Break from Subordination Feminism" is not as catchy or
provocative as Janet's original appeal, but it seems worth considering.
Although I believe that the subordination assumption remains powerful and
continues to reflect the reality of gender relations in much of the world,
"Taking a Break" may allow us to understand these relations more fully and
respond to them more effectively for the reasons Janet articulates.

Finally, even if we begin from Brenda's more fulsome definition of
feminism, might we still have reason to accept Janet's invitation to "Take a
Break"? I think the answer is yes. Even if we adopt a broader definition of
feminism, one that is not premised on M > F and therefore allows us better
to see the consequences of our own exercise of power, it may nevertheless
be useful to "Take a Break from Feminism" from time to time for many of
the reasons both Janet and Brenda endorse. For me, the most important
among these are the potential for nonfeminist analyses to enrich feminism
in significant ways and the likelihood that such analyses will better allow
feminism to "see around corners of its own construction. 78

VII. JANET HALLEY: CODA

I am quite excited by Tracy's discovery in my "essential elements"
of a new possibility for feminism: M/F and carrying a brief for F, without
M > F. Here are some thoughts on that, in the form of a fourth reading.

A "Minimalist" Feminist Reading

We have encountered the sexual-dominance feminist image of
Sheila T wyman, an image of male power and female subordination. The
utter pathos of Sheila, submitting to sex with her husband that he wants but
that they both know will humiliate and anguish her, all to save her marriage
precisely to the author of her suffering. Of course it is not at all required by
feminism tout court. But can feminism accommodate a completely reversed
image of the Twyman's marriage? Imagine it: the utter pathos of William,
begging for sex he can't get from his wife, guiltily sneaking off to have it
with another woman, whipped through round after round of psychotherapy

78 Id. at 608.

2003] 635



636 Columbia Journal of Gender and Law [Vol. 12:3

to figure out why he is such a pervert, and finally submitted to the public
humiliation of testifying about his hopeless intimacies and suffering a
published opinion deciding that his marital conduct is very likely
outrageous, beyond all possible bounds of decency, atrocious, and utterly
intolerable in a civilized society. As against that, imagine: the astonishing
powers of Sheila, laying down the moral law of the couple's sex life,
pursuing William like a Fury for breaking it, and extracting not only a fault-
based divorce but possibly also money damages specifically premised on
her alliance with the state against him. So far we have M/F, but in the form
of F > M. Imagine further: Twyman as a background family-law rule that
husbands with enduring ineradicable desires for sex that their wives find
humiliating must either stay married to those wives or, if they seek a
divorce (which they might well want to do simply to remarry and have
nonadulterous sex with women who do not find their desires humiliating),
pay a heavy tax in shame, blame, and cash. Can feminism acknowledge that
women emerge from the court's decision with new bargaining power in
marriage and a new role as enforcers of marital propriety? And can
feminism see how costly this "bargaining endowment" might be to women,
who can tap into it only if they find the sex in question painful and
humiliating? Can feminism read the case as male subordination and female
domination-and still as bad for women?

This seems to start us down the path that Brenda and Tracy want to
open for feminism. Further on down the path would be many subtler
readings of the power exchange between Sheila and William. As Tracy
astutely points out, feminism might be able to give up on M > F; it could
still be feminism if it retained only M/F and carried a brief for F. This
fourth reading of Twyman suggests that it might do a better job for women
if it could do so.

Still, although it may be a sign of my lack of analytic carry through,
I didn't see Twyman this way until I had Taken a Break from Feminism; I
could not have described this path until I had the Neitzschean and
Foucaultian readings. I am deeply grateful to Brenda and Tracy for seeking
the benefits for feminism in Taking a Break, for welcoming into feminism
the capacity for a critical engagement with female power, but this reading
raises a question: why remain tethered to M/F and to carrying a brief for F?
Shouldn't we be ready to see power between Sheila and William in terms of
a fidelity rule that has stringencies that might help or hurt them without
reference to their sex or gender? Shouldn't we be ready to say that, even on
this minimalist feminist reading, we'd prefer to spend our time working to
get a better outcome for the pervert, M or F? Finally then, I wonder whether
Dan's project-a fully elaborated left, critical distributional analysis---can
be tethered 24/7 to M/F and to carrying a brief for F. I see Dan's shift from
sheer antisubordination to distributional analysis as an indispensable
element of strong-minded, critically engaged left justice seeking. He
suggests that a left imagination would try to trace the distributional effects



Gender, Sexuality, and Power

of various governance moves through all the perverse turns that
postmodernism makes visible. The suppleness and range of the project he
proposes would be constrained if we undertook it even with Tracy's
minimized feminist presupposition that we will do our descriptive and
activist work on behalf of F, and even within Brenda's capacious feminism.
I want to learn how to do it. I would like to have feminism with me, not
against me, in the work. So it's not only on behalf of women, or of
feminism, that I will close by saying how much I would love to see
feminism fall in love with a sustained inquiry over the edge of its own
limits.

VIII. TRACY HIGGINS: POSTSCRIPT

So what has all this to do with the question posed by the organizers
of this symposium, "Why a Feminist Law Journal?" Asking this very
question invites us to consider the boundaries of feminism and to see
beyond them. It may be that this exercise suggests a new role for feminist
journals: attending to the boundaries of feminism and its relationship to
nonfeminist/left analysis could be something that feminist journals are
particularly well suited to do. Indeed, feminists might find it easier to
explore the idea of "Taking a Break from Feminism" from within the pages
of a feminist journal perhaps as a way of reducing the risks of this project.
In a ny e vent, I would l ike t o thank t he C olumbia Journal o f Gender and
Law for providing an occasion for all of us to reflect on that possibility.

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WHY DO WE EAT OUR YOUNG?
Journals as a Feminist Battleground