Bodily integrity
Bodily integrity is the inviolability of the physical body and emphasizes the importance of personal autonomy, self-ownership, and self-determination of human beings over their own bodies. In the field of human rights, violation of the bodily integrity of another is regarded as an unethical infringement, intrusive, and possibly criminal.
Quotes
[edit]- Article 40 1. All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function. 2. 1° Titles of nobility shall not be conferred by the State. 2° No title of nobility or of honour may be accepted by any citizen except with the prior approval of the Government. 3. 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen. 3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.
- "Right to Bodily Integrity". 11 February 2013; Judgement by the Irish Supreme Court: M (Immigration - Rights of Unborn) -v- Minister for Justice and Equality & ors, (7 March 2018). p.54
- 4. 1° No citizen shall be deprived of his personal liberty save in accordance with law. 2° Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law. 3° Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it. 4° The High Court before which the body of a person alleged to be unlawfully detained is to be produced in pursuance of an order in that behalf made under this section shall, if the President of the High Court or, if he is not available, the senior judge of that Court who is available so directs in respect of any particular case, consist of three judges and shall, in every other case, consist of one judge only. 5° Nothing in this section, however, shall be invoked to prohibit, control, or interfere with any act of the Defence Forces during the existence of a state of war or armed rebellion. 6° Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.
- "Right to Bodily Integrity". 11 February 2013; Judgement by the Irish Supreme Court: M (Immigration - Rights of Unborn) -v- Minister for Justice and Equality & ors, (7 March 2018). pp.54-55
- "That the general guarantee of personal rights in section 3 (1) of Art. 40 extends to rights not specified in Art. 40. One of the personal rights of the citizen protected by the general guarantee is the right to bodily integrity."
- Ryan v Attorney General [1965] 1 IR 294 at 295. Judgement by Kenny J
- Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.
- United Nations, Convention on the Rights of Persons with Disabilities, Article 17 – Protecting the Integrity of the Person
- [A]ll the while Florence was making its way through the courts, law enforcement officials were playing fast and loose with the Fourth Amendment's prohibition on searches and seizures, especially as it relates to violations of bodily integrity and roadside strip searches. Examples of minor infractions which have resulted in strip searches include: individuals arrested for driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, riding a bicycle without an audible bell, making an improper left turn, engaging in an antiwar demonstration (the individual searched was a nun, a Sister of Divine Providence for 50 years). Police have also carried out strip searches for passing a bad check, dog leash violations, filing a false police report, failing to produce a driver's license after making an illegal left turn, having outstanding parking tickets, and public intoxication. A failure to pay child support could also result in a strip search.
- John W. Whitehead, "Missouri v. McNeely: The Loss of Bodily Integrity in an Emerging Police State". (15 January 2013).
“Personal Autonomy, the Private Sphere and Criminal Law” (2001)
[edit]“Personal Autonomy, the Private Sphere and Criminal Law”, Peter Alldridge, Chrisje H. Brants - 2001
- Now recall the structure of negative liberty as it has long been conceived in the liberal political tradition. In contrast to any (positive) right to autonomy, the right to negative liberty is neither conceptually impossible nor morally indefensible under contemporary conditions. My interest in being left alone is sufficient grounds for placing others under duties not to molest or interfere with me; and these duties are sufficiently undemanding to be universalized to that, for example, we all have a duty not to invade anybody else's physical integrity.28 Appealing to negative liberty is one way to construct a justifactory argument for a right to physical integrity; but “not” the best way, which – as also with regard to privacy rights – is to argue from autonomy. In fact, the Interest Theory advocates a multi-layered and dynamic conception of rights, according to which a single right may be the ground of an almost endless number of duties, from which further rights and duties flow. These rights and duties can be described as coming in “waves”, or it might be said, less metaphorically, that derivative duty-imposing rights are elaborated through moral arguments which extrapolate from “core” rights and duties. A core right to physical integrity, for example, might include within its derivates victim's rights to receive compensation, as well as a bundle of criminal justice rights for the state to detect, catch, try and punish offenders in cases where a person's physical integrity has been violated unjustifiably.
- pp.66-67
- It is tempting to try to explain (away) rights conflict by pointing to the fact that very few rights are absolute. The right to privacy certainly is not absolute, as my proposed definition makes clear: “reasonable” demands for information, “justifiable” surveillance, and “non-arbitrary” interference with person, home or property all fall outside its protection. Perhaps, then, it can be shown that the right to privacy is circumscribed by the boundaries of more weighty interests, such as interests in bodily integrity and security, so that rights protecting these interests are not in conflict with the right to privacy after all?
The suggestion is a helpful reminder that few – if any – rights are absolute, and that apparent conflicts between rights can sometimes be resolved by paying more careful attention to the proper scope of particular rights. On reflection it may be found that one right actually circumscribes or delimits another, as opposed to there being any genuine conflict between them. But this is not enough to salvage the objection presently under examination, as a simple example demonstrates. It is reasonable to postulate that the right to privacy ends at the point where there is “reasonable suspicion” or “probable cause” to suspect that a vulnerable child is in grave danger of harm.- p.74
- Some readers might now be thinking that their skepticism about the existence of a right to privacy has been more than vindicated – and by an opponent! - but this is to forget the lesson of the first section, and so to fall victim to the second misconception I promised to dispel. Privacy, to repeat, is essential for an autonomous life. It is therefore self-defeating for anybody who embraces the liberal ideal of personal autonomy to deny that there is a right to privacy in order to defend a competing right to bodily integrity. For why is bodily integrity valuable? In large part precisely because it is another prerequisite for living autonomously. The implication of finding a common root both for rights and rights to bodily integrity in a liberal conception of well-being, it should be evident, is that bodily integrity would be worth much less (though certainly not worthless)46 if privacy interests lacked adequate protection. (The reverse relation also holds, of course: a surfeit of privacy would be inadequate compensation for a substantial loss of bodily autonomy). It is certainly much to be regretted that rights always over-extend to situations in which the protection they afford is unwarranted or abused, as well as to situations in which the right-holder's interest in privacy is trivial or non-existent. But this over-extension is an attribute that the right to privacy shares with every other species of right; and while it is possible to reduce the area of over-extension through careful drafting and interpretation, at some point further refinements can only be bought at the cost of excluding meritorious cases from the ambit of the right. No amount of handwringing or denial will alter that conceptual reality, or falsify the moral truth about rights. Unless one is prepared to reject the liberal ideal of autonomy itself, therefore, the right to privacy seems secure, its faults and limitations notwithstanding.
- pp.74-75
"Privacy law in Australia” (2005)
[edit]"Privacy law in Australia”, Carolyn Doyle, Mirko Bagaric – 2005
- The above issues have not been satisfactorily resolved at the conceptual level and it is largely because of this that law-makers have been unable to develop a coherent regulatory framework within which to place the right to privacy. The right to privacy is at present so vague and unstable that its scope seems to be almost boundless. Indeed, there is a tendency to reclassify a number of distinct types of legal wrong as invasions of privacy. For example, violations of one's bodily integrity have traditionally been protected by specific criminal offences or civil actions such as assault, battery and negligence. The justification for such offences or actions was traditionally found in the universally accepted principle that people have a right not to have their bodily integrity violated. However, the same interests that are protected by such offences and actions are being relabeled by some as “bodily privacy”.13 In relation to information privacy, one commentator has warned that:
- pp.5-6
- The second bodily privacy category relates to violation of a person's bodily integrity. Bodily integrity is violated by the application of any degree of force to the body – the merest touching will suffice. There are two broad situations in which bodily integrity is typically infringed.
The first, and most common, is where force is applied to the body of a person in order to elicit some type of sensation, normally pleasure or pain. The most typical examples are where force is applied to cause pain, or as part of the thrust and parry of everyday life (for example, being bustled in a crowded train) or as a romantic gesture. The law of privacy has no application in this context. These contacts are governed by criminal law and torts law.
The broad principle is that all non-consensual touching is unlawful, apart from the contacts that we implicitly consent to as part of everyday life. Properly viewed, contacts of this nature do not engage the right to privacy. This is because the other rights that are at issue are universally regarded as more important than the right to privacy. The right to bodily integrity, apart from the right to life which in some manifestations overlaps with the right to bodily integrity, is perhaps the most important right in the context of any normative ethic. The protection that it can shore up will not be further advanced by re-phrasing the interests in terms of privacy.
Violations of bodily integrity can result in the perpetrator incurring both criminal liability, for offences such as assault and battery, and also civil liability to pay damages to the victim. The main tortious actions are battery, assault, action on the case for damages for physical injury and action on the case for nervous shock and negligence.- p.109
- A second situation in which one's bodily integrity is violated is where the other party has a strategic reason to obtain something of interest from the body of the person. The principal example of this is where a body sample is sought from a person. As a general rule more information about a person can be ascertained from bodily samples than the forms of bodily “invasions” referred to above. An enormous amount f information can potentially be obtained from a hair, saliva, skin, urine, breath or blood sample. This the right of information privacy is potentially more strongly invoked in these circumstances. In some cases the right to physical integrity also comes into play. This applies to all of the above examples, except breath and urine samples.
All of these procedures are permissible with the consent of the person involved. This consent can be immediate or it can be given beforehand as a pre-condition to lawful participation in an activity. Thus, many professional sportspeople and people involved in other vocations (such as the military) undertake to submit themselves to certain forms of testing if and when required.
Apart from these consensual situations it is unlawful for any person to demand a bodily sample or take it by force except where expressly authorised by statute. As a general rule, the only situation in which it is permissible to take such samples by force is for purposes of detection and investigation of crime.- p.110
“The Limits of Bodily Integrity: Abortion, Adultery, and Rape Legislation in Comparative Perspective” (2007)
[edit]Miller, Ruth Austin (2007).“The Limits of Bodily Integrity: Abortion, Adultery, and Rape Legislation in Comparative Perspective”. Ashgate Publishing.
- Michel Foucault and Giorgio Agamben have both convincingly criticized the purely juridical approach to the modern state-citizen relationship, the logic of which leads inexorably to an assumed dichotomy between the liberal and the authoritarian. Arguing first that the eighteenth and nineteenth century classical juridical subject gave way in the twentieth century to a biopolitical subject, both Foucault and Agamben suggest that this twentieth century sovereign focus on biological (rather than legal) life has in turn rendered the classical juridical categories of sovereignty (left, right, liberal, authoritarian) irrelevant. In his series of lectures, “Society Must Be Defeated”, Foucault described that he called a gradual “penetration” of the classical juridical sovereign right to take life or let live by a new sovereign right “to make live or let die.”11 He discussed, in other words, the movement from politics to what he defined as biopolitics, from a focus on the rights of the individual to a focus on the health of the population. The transition from the right to life to the right to death obliterated the line between active and passive citizenship, between rights and duties writ large. All that was left was the health of the population, which rested in turn upon the biological integrity of the citizen.
- 11 Foucault 2003, 241 as quoted on p.5
- I am thus particularly concerned with the ways in which markers of political identity have joined together with markers of reproductive or biological identity to produce biopolitical, rather than liberal or authoritarian space. I am interested, in other words, in the ways in which a citizen's political status as a consenting individual collides with a citizen's biological status as a being possessed of bodily integrity. Indeed, I would argue that consent and bodily integrity have come together as “the” twin pillars of appropriate sexual, reproductive, and political structures only as law has become a function of biopolitics. I would argue, moreover, that since this moment, the consent/bodily integrity formula has been critical to the obsolescence of the juridically defined citizen.
The invocation of this formula has been the most obvious in recent national and international interpretations of rape. Rape, in fact, has been articulated as a “crime against humanity” precisely as the “conception of the material integrity of the body as a right” has developed, and as the crime has come to be understood first and foremost “as a violation of autonomy.”- Campbell 2003, 508-509; as quoted on p.6
- [C]onsent and bodily integrity have been equally key to the criminalization and decriminalization of abortion and adultery, as well as to more broadly defined discussions of gender and citizenship. As Drucilla Cornell has argued with respect to the conditions necessary “ to transform ourselves into individualize beings who can participate in public and political life as equal citizens,” only “1) bodily integrity, differentiation of oneself from others, and 3) the protection of the imaginary domain itself” are sufficient for full, equal political participation. Bodily integrity and consenting individualism, in other words, are for Cornell central to overcoming the gender hierarchy implicit in post-Enlightenment conceptions of citizenship.
But they are also, as I mentioned above, central to supplanting political space with biopolitical space, to exploding the classical-juridical categories of citizenship and to rendering them a largely meaningless. I will elaborate on this argument more fully in the following chapters, for for now I would like to sketch three analyses of the consent/bodily integrity formula that point to a significant transformation in the relationship between sexual and reproductive identity on the one hand and political identity on the other. The first of these analyses suggests that sexual and reproductive legislation has been instrumental to the formulation of lawless space. The second suggests that that the citizens who inhabit this space are subject, in the name of security or even national security, to a constant, intense, and intimate regulation of every aspect of their biological lives-that sexual and reproductive legislation is promulgated precisely for the purposes of this regulation. The third suggests more broadly that the consent/bodily integrity formula itself has produced a situation in which citizens can be known only biologically and sexually, and that juridical status alone I irrelevant to contemporary politics.- p.7
- Children, however, are noy the only partial citizens or non-citizens regulated by national or international political structures, and it is here that the consent/bodily integrity formula becomes problematic. Another increasingly recognizable non-citizen or partial citizen is the (internal or external) refugee-mature, sane regulated, but not in any way a full political actor. Indeed, what recent national and international interpretations of consent and bodily integrity have produced from the perspective of refugees-even, or especially, to the extent that they have been endowed with ersatz rights-is a situation in which any and all sexual or reproductive behavior on their part has become criminal. Sex has become rape and reproduction has become criminal abortion and/or criminal procreation.
- pp.7-8
- A second aspect of the consent/bodily integrity formula that I would like to consider in brief now and explore in more detail later on is the process by which consent has become the instrument used to exercise any meaningful right to bodily integrity-and has thus become a means, again, or criminalizing all sex. The simultaneous invocation of bodily integrity and consent in contemporary legislation has, I will argue, defined non0criminal sex as an activity in which a citizen consents specifically to a violation of his or her bodily integrity. By consenting to this violation, however, this same citizen effectively transfers sovereign power-transfers the sovereign's unique ability to waive a citizen's rights-to his or her sexual or reproductive partner. The only choice on the part of individuals engaging in sexual activity has therefore become a criminal one: 1) an individual can violate another individual's right to bodily integrity without his or her consent and thereby commit the traditional liberal crime that is rape, or 2) an individual can violate another individual's right to bodily integrity with his or her consent, usurp the sovereign prerogative, and thus commit a biopolitical act of treason.
- p.8
- When we bring together political consent and biological bodily integrity, in other words, we produce a state full of precisely the sovereign subjects described by Sade and Agamben-a state in which public and private, political existence and bare life collapse into one another, in which a citizen's only choice is between committing violent assault and committing treason. We create a biopolitical arena, centered around the womb, and in the constant production of likewise biopolitical subjects.
- pp.8-9
- The question at stake in general is whether the violation of bodily integrity is about physical trespass or whether it is about something else. And if it something else, is this something a matter of existential identity, political or bodily borders, or political or bodily control? Scarry, for example, begins her discussion of consent and rights with a reference to Judge Cardozo's conclusion in the 1914 case, Schloendorff v Society of New York Hospital, in which Cardozo writes that “in the case at hand the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs or operates without his patient's consent commits an assault for which he is liable in damage.” In analyzing this passage, Scarry argues that
the body, in his language, is conceived of as a palpable ground: the body has edges; it has specific boundaries; to cross over these boundaries without the authorization of the person is an act of trespass. Judge Cardozo sets this in a political and philosophical framework by citing the 1905 Illinois Court of Appeals case, Pratt v. Davis, in which Justice Brown had asserted "Under a free government at least, the free citizen's first and greatest right, which underlies all others-the right to the inviolability of his person, in other words, his right to himself-is the subject of universal acquiescence.” Here, as legal commentators have noticed, the private relations (or what might have been conceived of as merely the private” relation) between physician and patient is placed within the frame of the “civil rights of citizenship”- p.57
- The most basic issue raised in both Cardozo's ruling and Scarry's analysis is, then, the issue of space. Bodily boundaries are conflated with civic boundaries. The violation of bodily integrity is not about violence; it is about trespass and the public and private spheres-it is about the duty of a free government to preserve these spheres whole and intact. As Scarry suggests, therefore, if we accept this approach to bodily integrity, and in particular the right to bodily integrity, the physical and legal borders of the body and the physical and legal borders of the nation state become in many ways one and the same thing.
But Scarry is certainly not the only theorist to point out this relationship between rights rhetoric and bodily integrity or between bodily borders and the articulation of political space. As Alan Hyde has noted in his Bodies of Law, for instance, “the 'private body' is a right, conceptualized as space, weighted against other interests and therefore not absolute; it is, therefore, public and social … [R]ights are often visualized with spatial metaphors; in Roe v. Wade, typically they are “areas or zones.'” [italics in original]- pp.57-58 quoting Hyde 1997, 82.
- Although an issue worth mentioning that is not often raised in discussions of Cardozo's decision is that Marty Schloendorff lost the case against the hospital and that she “had no ordinary tumor, nor was it on her arm. It was a fibroid mass in her uterus and the operation done against her will was a hysterotomy.” Lombardo 2005, 795. There are striking similarities, in other words, between this “good” decision on bodily integrity and the “bad decision” a few years later that occurred in Buck v Bell. In each, questioning about political violations of biological boundaries end with a medico-legal decision-reinforced by the courts-to sterilize unfit women.
- p.57
- Scholars such as Catharine MacKinnon and Jean L. Cohen, arguing on separate sides of the US abortion-rights-as-privacy-rights debate, have likewise suggested the inherently spatial dimensions of the rhetoric surrounding bodily integrity-even if they have not effectively problematized these dimensions in the way that Scarry and Hyde have. In another context, Luise White has critiqued the neo-colonial implications “lurking behind western notions of bodily integrity,” arguing that “stories of body parts, hearts, doctors and border crossings are not only a debate about the vulnerability of African bodies, but about the vulnerability of African borders, and about the language of individual rights that protects bodies and undermines borders.” Like so many other aspects of the “global” rights rhetoric that reinforces the borders surrounding European and North American political space, in other words, the right to bodily integrity likewise produces a porous, permeable boundary around nation states int her rest of the world.
The point to be made here, however, is simply that the linkage between modern notions of bodily integrity and modern notions of political space-be it the space enclosed by sovereign, national boundaries, the “public sphere,” the arena of the “private,” or colonized space constantly in flux-is one that has been developing over a number of years. Crimes against bodily integrity are about a physically defined political trespass. They involve a biological undermining of sovereign boundaries, the public sphere, or the domain of the private.- p.58; quoting White 1997, 332, 326.
- At the same time, not all contemporary discussions of bodily integrity fall so obviously into the paradigm of overlapping biological and civic or national rights. Nadine Taub, for instance, begins her analysis of bodily integrity and reproduction by arguing that it is central to debates about abortion and contraception first and foremost because of “the tremendous impact pregnancy and childbearing have on a woman's body.” Here, in other words, the basic issue at stake is an actually physical change (addition, subtraction, transplant, or removal) that occurs in an individual's body, and how this change might affect that individual's sense of “personhood.” Taub further links reproduction related discussions of bodily integrity to similar discussions in the realm of medical experimentation and treatment, and she concludes that “this right of bodily integrity has been clearly articulated constitutionally.” Rather than protecting the liberal notion of an intact civic relationship occurring in protected public space, therefore, bodily integrity here is protecting the broader notion of “personhood” as it is expressed in physical wholeness.
- pp.58-59; quoting Taub 1999
- Drucilla Cornell addresses the question of bodily integrity, personhood, and the legal protection of both in a related way, arguing that,
the right to abortion should not be understood as the right to choose an abortion but as the right to realize the legitimacy of the individual woman's projection of her own bodily integrity, consistent with her imagination of herself at the time that she chooses to terminate her pregnancy.
Here, in other words, personhood and bodily integrity are not about physical wholeness but about psychological or existential wholeness-the relationship between an intact body and a sense of self. A woman's identity (political and otherwise) is based on the projection of her physical and psychological self, and a legal system must protect a woman citizen's ability (and “right”) to maintain this identity. As Taub notes, although “far more sophisticated” than many other approaches, Cornell's analysis is also based both implicitly and explicitly upon a Lacanian interpretation of the mirroring process. Taub further argues that if we do not accept Lacanian analysis, Cornell's argument becomes problematic. I would respond, however, that psychological projections of the self based on bodily integrity are not any more constructed (or “false”) than physical projections of the same, and that Cornell's approach is therefore useful regardless of whether or not we accept the details of Lacanian analysis. Indeed, both the more “basic” approach and the more “sophisticated” approach appear to get at the same issue-the linkage of personhood or the self to the ideal of wholeness, and the need for legal structures or rights rhetoric to protect this connection.- pp.59-60; Taub 1999, 455; Cornell 1995, 82; Taub 1999, 456.
- Although a second critique of Cornell's analysis might be elaborated via a reading of Lesley Caldwell's discussion of abortion in Italy: “because [abortion as contraception] does not imply the forethought that most methods of contraception demand, it more readily accommodates women not thinking of themselves as active sexual persons; this is a refusal that closely aligns with dominant ideas of masculinity and femininity.” Caldwell 1981, 59. Here, in other words, we have women using the right to bodily integrity and their right to abortion to project themselves (psychologically-if not according to strict Lacanian analysis) as participants of patriarchal gender relations. Women's right to bodily integrity in this context reinforces notions of women's sexual passivity. At the same time, I should emphasize that my point is not to argue that abortion rights always, or even often, lead to are-inscription of patriarchal power structures. Nor do I want to argue that Cornell's approach to bodily integrity is somehow flawed. Instead, I want to caution that the late twentieth century rhetoric of bodily integrity, like the early twentieth century rhetoric of consent, is a complicated one-by no means leading us inexorably to a changed or altered relationship between politics and reproduction. Indeed, as we shall see, the late twentieth century decriminalization of abortion, with its invocation of bodily integrity, defined in far more in compromising terms women's bodies as incubators for future political subjects.
- Footnote 128, p.59
- Each of these approaches to bodily integrity, in other words, highlights an aspect of physical, political, or psychological wholeness as well as an aspect of physical, political, or biological space. In Cardozo and Cohen, the issue at stake is defining spheres (the public as well as the private) and the civic or political relationships that are mediated in these spheres. In Taub and Cornell, the issue at stake is physical and psychological personhood, how each relates to political identity, and how attacks on each need to be prevented using a rhetoric of rights and duties. All four thus in a basic way see bodily integrity as central to defining the self, to defining “reality,” and to defining political space. As I will suggest over the following pages, it is this understanding of the right to bodily integrity precisely and in particular that reinforces- in a far more relentless and effective way than even the right to consent did in the early twentieth century-the articulation of women's wombs as biopolitical space. Bodily integrity-physical, psychological, and political-has been constructed for distinctly political reasons, having to do with distinctly political notions of reality, identity, and personhood.
- p.60
- As reproduction, abortion, and abortion rights became linked not only to contraception and sterilization, but also to the post-Second World War ideal of bodily integrity, in other words, the womb became a space, ironically, far more' open to regulation than it had ever been before. This regulation, however, was occurring now in the name of protecting a woman's political, sexual, social, and civilizational self, rather than in the name of the health or integrity of the race. By the late 1970s, in fact, the Council of Europe was arguing that this approach to reproduction was an eminently public, national concern-”the activities of private family planning associations .. supported as complements of, not substitutes for vigorous national programs.”
But it was not just the politicization of reproductive space-or the mapping of the public onto the womb-that occurred with the entry of bodily integrity into discussions of reproductive law. It was also that the public sphere was likewise transformed into an arena for expressing sexual, reproductive, and therefore biopolitical identities. The conflation of bodily borders and national borders explicitly noted by White and implicitly suggested by philosophers such as Locke thus became increasingly overt as the twentieth century progressed. Indeed, bodily integrity, far more than consent, became the means of defining the biopolitical subject, politicizing not just the womb, for instance, but the hospital in which the abortion would be performed-inscribing the nation onto a reproductive space now defined explicitly as a container for both the consenting patient and the non-consenting citizen.- van Kammen, 314-315; “Council of Europe: 'Make Birth Control Available” 1976, 16; as quoted on pp.65-66
- Indeed, law must be violated in order to preserve the body. The clear message is that national identity-liberal citizenship even-has nothing to do with juridical boundaries and everything to do with biological ones.
This message becomes even more overt in Turkey of the 1990s, when the right to bodily integrity is invoked as a means of halting state-sponsored virginity examinations. I will discuss these examinations in more detail in the next chapter, but for now I would simply like to consider the implications of one of the more common slogans of the campaign against the procedure-"No to Virginity Tests! This is My Body!” (“Bekaret Kontrolune hayir! Bedenimiz Bizimdir!”). As Ayse Gul Altinay states in an endnote to an essay discussing the campaign, “it is hard to find an appropriate translation for 'Bedenimiz bizimdir,' which means 'these are our bodies' or 'our bodies belong to us.' It is problematic to translate it as the singular 'this is my body,' but I could not find anything that was more appropriate.” The basic problem with translating the slogan, in other words, is that beden refers to a singular “body.” but it is attached to a plural possessive. The most literal translation of the phrase would therefore be “this is our body” or “out body belongs to us.” As Altinay notes, such a translation would undercut the broader purpose of the slogan, and is therefore inappropriate in an essay lauding the campaign.
At the same time, however, it is worth considering the implications of both the slogan's singular and the slogan's plural, given the connection between reproduction and law that I have been suggesting in the formulation of biopolitical identity. As Foucault has argued with regard to biopolitics in general,
what we are dealing with in this new technology of power is not exactly society (or at least not the social body, as defined by the jurists), nor is it the individual-as-body. It is a new body, a multiple body with so many heads that, while they might not be infinity in number, cannot necessarily be counted. Biopolitics deals with the population.
The biopolitical focus on population, in other words, is a focus that produces precisely a collection of protesting, juridically defined citizens claiming the public sphere as a means of protecting “their” (plural) biologically defined “body” (singular). The invocation of bodily integrity, therefore, quite overtly turns not just reproductive space into political space, but political space into reproductive space-reducing legal, political, and biological bodies as well as borders to one and the same thing.
Indeed, one of the more basic effects of thinking of citizenship in terms of bodily integrity is that the “public sphere” gradually ceases to be defied as the “arena in which consent is formed” and comes instead to be understood as a place in which bodies are defined and reproductive space established. In the case of reproductive legislation, we see an attempt to turn the places (the hospital here as well as the womb) where abortions are performed into simultaneously modern space and political space. In Turkey, for instance, in addition to the trope of “traditional” contraception, there is also the trope of abortions performed in "traditional” or “rural” settings-abortions understood to be both more widespread and less appropriate than those performed in “urban” settings by “trained” personnel. Likewise, in all three states, there is a concerted effort to restrict “legal” abortions to certified hospitals or clinics. This effort to confine abortions to legally defined, modern arenas-to villify the “backstreet abortion” alongside the “untrained midwife”-is not, however, simply a continuation of the nineteenth century process of linking the medical to the legal and of criminalizing unregulated medical practitioners. More so, I would argue, it is part of a new, late twentieth century process of aligning reproductive space, political space, and now medical space as well.- pp.67-68; quoting Altinay 2000, 404, 411.
- [W]hen we consider that right exactly is being articulated in the case of abortion legislation, and what role precisely the consent of the physician is playing in this articulation, the hospital becomes a nation-state linked far more overtly to biopolitics than to juridical sovereignty. Fundamentally, bodily integrity cannot exist in this formulation (in either the clause or in the rhetoric criticizing this clause) without physicians' consent. It is, in other words, the consenting/non-consenting physician/citizen, acting within the “miniature nation-state,” who alone produces whole bodies endowed with a sense of self. To the extent that the hospital has become the public sphere, therefore, it is not consent that is formed there, but intact bodies-or, more basically, bodily integrity. Bodily integrity cannot exist on its own, that is-it must be mediated through this newly defined public sphere. Without a consenting/non-consenting physician, therefore, (“consenting” if the clause remains in effect, “non-consenting” if its critics successfully remove it-but linked to the citizen in either case), an abortion cannot be performed, and the right to bodily integrity will remain un-invoked. As a result, the borders and boundaries once more collapse into one another, reproductive space, political space, biological space, and medical space all, quite literally, defined as one.
- pp.69-70
- In quite different ways, in other words, Cahill, Hengehold, and MacKinnon were all implicitly or explicitly advocating, first. An understanding of rape that addressed both the reality and the rhetoric of women's sexuality, and, second, a more critical approach to crimes committed against this sexuality. To the extent that-constructed or not-sexual identity intersected with social, political, or national identity, rape needed to be understood as an attack on subjectivity as much as it was understood as a physical assault. To the extent that the centrality of the penis (counter intuitively) highlighted the violent as opposed to the sexual nature of rape, the male penis needed to be downplayed in favor of female bodily integrity. All three of these theorists, in other words, were understanding rape in terms of "trespass” rather than in terms of "penetration.” To draw on the vocabulary of the last chapter, identity was trumping violence.
All three of these theorists were also, however, writing in the late 1980s and 1990s. By the first years of the twenty-first century, both internal law and European law had changed. Indeed, by 2005, various international legislative commissions had started defining rape in precisely the terms advanced by Cahill, Henhehold, and MacKinnon. Meanwhile, French, Italian, Turkish and other nation-state based jurists were coming to understand rape explicitly as an issue of bodily integrity, identity and dignity-highlighting the victim's subjectivity, and marginalizing or in some cases eliminating completely the role of violence, penetration, or the penis. If we are operating in a progress narrative, therefore, we seem to be on the right track. In fact, if we look further back in time, past the 1977 conversation with Foucault, we can see a distinctly progressive transformation-from a “traditional” approach to rape, in which a woman's sexuality, or more specifically her virginity, was the property of her family, her father, or her husband, to a late nineteenth/early twentieth century moment during which women were understood as (liberal) political actors theoretically (if not actually) capable of consent, to, finally, this late twentieth/early twenty-first century point at which women became embodied subjects, political actors to the extent that their bodily integrity remained intact.- pp.72-73
- I will not be arguing that bodily integrity is an inappropriate lens through which to view rape legislation or that violence should be privileged over sex in discussions of rape. But I do think it is important to examine the implications of understanding “integrity” or even “humanity” as the object of attack in rape.
- p.73
- In the seventeenth and eighteenth centuries, women's bodies were unprotected. They were permeable, penetrable texts that might be read, analyzed, and exposed. Women by their very (sexual ad reproductive) nature indeed could not possess a coherent subjectivity, given that torture and labor played identical roles in destabilizing it. Just as torture simultaneously marked and revealed the truth of a crime on a broken, objectified individual's body, in other words, so too did labor mark and reveal the same on a similarly objectified woman's body. By the late nineteenth and twentieth centuries, however-largely in the name of treating a legally defined, uniform citizenry, where the concept “natural,” even, was linked to the marriage contract-women's bodies became unbroken, and unbreakable. Even in labor, women maintained their subjectivity. They were indeed so intellectually collected, so capable of producing their own narratives, they they could deliberately obscure or hide a “truth” that in the eighteenth century would have appeared on their pain racked bodies regardless of their volition.
At the same time, however, I want to suggest that this taking for granted of women's bodily integrity (linked to their subjectivity)-which eventually became the taking for granted of their right to bodily integrity (linked to their subjectivity)-did not by any means render women's bodies less spatially defined than they had been before. The only difference was that rather than serving as political space, they began to serve as biopolitical space. Just as occurred at the beginning of the twentieth century with the mobilization of consent theory, in other words, here with the mobilization of bodily integrity, we have, first of all, the rendering of all sex criminal by its very nature-subject to regulation by national and international; structures. Second, there is the replacement of torture by forensic medicine-each search for testimony reading women's bodies as passive objects, the only obvious difference between the two being forensic medicine's reliance on consent theory. And finally, we have the at this point exaggerated overlay between bodily boundaries and political boundaries-the mobilization of the right to bodily integrity turning violations of a woman's biological barriers into acts of treason.- p.111
- Whereas in the early twentieth century the criminalization of sex happened via an expansion of the categories of statutory rape and coercion, however, in the late twentieth century, it was a result of the overlap between consent and bodily integrity-the conflation of “autonomy” (or rights) and “integrity” (or dignity). Approaches to rape in contemporary international law, especially since the Bosnian genocide, for example, have relied heavily upon a new understanding of the relationship between consent and bodily integrity.
- p.111
- Here in the February 22, 2011 ruling, however, the link forged between consent and bodily integrity-indeed, the overlap of the two as each defines women's subjectivity-brings rape very much into Bergelson's second category. Sex is an act of bodily harm. It is conceived of as a violation of bodily integrity. It undermines an individual's *biopolitical) dignity, whether there is consent or not. Consent merely serves to mitigate the crime. It is therefore empathically not, as Bergelson states elsewhere, that: consensual sex is not rape, even if one of the partners is not aware of the other's consent.” The burden of proof in the context of the February 22, 2001 rape trial was explicitly on the defendant-to show that consent occurred.
In the very process of reinforcing women's subjectivity, therefore-in the very process of eliminating the humiliating effects of considering consent alone in rape legislation (namely, the effects of placing the burden of proof on the victim to show that she did not in fact “want it”)-contemporary international law is also effectively criminalizing all sex. Whereas it is true that rape is not like torture to the extent that pain “per se” is not the issue, in other words, it is exactly like torture in that regardless of consent it is a crime against bodily integrity, autonomy, and therefore humanity.- p.113
- Rape is a crime not because there is an absence of consent, but because sex is an assault on politically defined biological boundaries. The role of “proving” consent is thus, again, simply to mitigate the original crime. Far more so than early twentieth century fascist and “quasi”-fascist legislature, contemporary international law has thus mobilized the “right” implied by integrity/autonomy to turn sex into something in need of constant regulation
And indeed, to the extent that both integrity and autonomy play interchangeable roles in the contemporary legislation, the passive, spatial nature of women's bodies is highlighted. In Kirsten Campbell's description of the ICTY's approach to rape law, for instance, we learn that,
the Tribunal's conception of the crime of rape rests upon notions of integrity of the body and of the self of the survivor of sexual violence .. [T]his model of rape as a crime against humanity thus rests upon a conception of the material integrity of the body, and of the crime as a trauma to it … [I]n “Kunarac” the crime consists not only of a breach of bodily integrity but also of sexual autonomy ... [T]his model of rape reflects the more liberal model of rape, which “now understands the crime as a violation of autonomy, as a failure to recognize the victim's civil rights of self determination” and assumes that “personhood is intricately tied to self-determination and autonomy.”
In a very different context, Alan Hyde has argued that,
bodies may indeed be experienced as autonomous, but, when this is so, this is because of their social, discursive construction as autonomous. Body autonomy is really social, public, and conventional ... [I]t follows that the body is not the best but the worst standpoint for defining legal subjects, particularly subjects' autonomy against public intrusion (the aim of those who would replace the right of privacy with a right to bodily integrity or autonomy).
Hyde's analysis is more critically informed than Campbell's is-working from the notion that the autonomous body is a political construct rather than some pre-existent, natural reality. But each in a different way accepts unquestionably the slippage between the “autonomy” associated with the liberal right to do with one's body as one wishes, and the “integrity” associated with the authoritarian insistence the body is inviolable and deserving of respect. In Campbell's discussion, we have firs ta conflation of the “self” and bodily integrity, followed by a characterization of rape as a simultaneous assault on bodily integrity and sexual autonomy. The passage concludes with a conflation this time of “personhood,” “self-determination,” and “autonomy.” Hyde's discussion is almost a mirror image. We start with bodily “autonomy”, and then move to the strange assertion that autonomy *rather than integrity) serves as a barrier “against public intrusion.” We then conclude with integrity “or” autonomy replacing the notion of privacy.
If integrity and autonomy-and the right to both-were the same thing, then these discussions would be entirely reasonable. Without question, however, they are not.- p.114 quoting Campbell 2003, 508-9 & Hyde 1997, 11.
- What is it, though, about a general anesthetic that immediately prompts concerns of violations of bodily integrity-concerns that strip searches, vaginal examinations, and, as we shall see, post-rape medical examinations apparently do not? One answer has to do with the role played by consent in such situations. The passive, inert body of Cardozo's judgment may be more politically active than its physically active counterparts, but only if this political activity is mobilized in support of the liberty of the sovereign citizen him or herself. Liberal individuals consent to medical anesthesia for their own, “individual” greater good. If the passive, inert body is nothing more than a political “setting”, however, a field from which to gather evidence for a common good, then there is no liberal political activity to speak of. The rhetoric of consenting citizenship breaks down.
More important than the role of consent in these approaches to general anesthetic, though, is arguably the sexual connotations that have grown up over the past few centuries around medicinal unconsciousness. As Dudley Buxton, writing in 1888 on “the Criminal Use of Chloroform,” noted,
many cases have not been reported in which the prosecutrix has affirmed that a dentist or surgeon has violated her person while she was under the influence of anesthetic .. [B]ut it is not only designing, bad women who bring such charges. Modest, virtuous, and refined gentlewomen have been prosecutrices in these cases. The cause for this remarkable and deplorable state of things is fortunately not far to seek. Chloroform, ether, nitrous oxide, gas, cocaine, and possibly other carbon compounds, employed in producing anaesthesia possess the property of exciting sexual emotions and in many cases produce erotic hallucinations. It is undoubted that in certain persons sexual orgasm may occur during the induction of anaesthetic.
It is not just the mockery of consent that is at stake in such situations, in other words-it is also involuntary (female) sexual pleasure. It is true that J.P. Payne, commenting on Buxton's assertions 100 years later, argues that such analyses of the effect of chloroform were patently incorrect. But the fact remains that alongside the fear that the physically passive body might slip into sexual activity. General anesthetic thus plays up-as a trope if not as a reality-the fundamentally sexual nature of assaults on bodily integrity.
As such, again, it presents the horrifying possibility that sexual behavior or sexual identity might slip outside the bounds of the political, and in the process render legal violations of bodily integrity suddenly illegal. Strip searches, the collection of urine samples, and vaginal examinations are self-consciously modern and humane political and legal processes. All three may “seem” no different from early modern torture-each involving an obvious violation of bodily boundaries performed for the sake of (non-verbal) truth, testimony, and evidence. But they are not “actually” torture in that they do not involve-or are not meant to involve-the undermining of subjectivity, the disordering of the self, or the political and intellectual incoherence that arises from torture (or labor pains) in non-modern contexts. The unconscious orgasm of the anesthetized body, however-whether it happens in reality, or merely hovers as an unrealized possibility (or fantasy) around the passive body-shifts modern, humane violations of bodily integrity into the realm of torture and lawless violence. The basic point of the right to bodily integrity as it was articulated by Cardozo and countless others was that even and especially in an unconscious state, the liberal citizen was a coherent, politically active, self. That a sexual orgasm-"the" manifestation of the shattered, incoherent, loss of subjectivity-might occur in the midst of this unconsciousness completely undermines the very foundation of embodied political rights. In the context of rape legislation, therefore, it becomes particularly frightening, given the very slight difference between the crime of rape-an illegal violation of bodily integrity-and the gathering of forensic evidence following rape-a legal violation of the same bodily integrity.- p.116-117
- Indeed, much of the discussion surrounding the gathering of forensic evidence prior to rape trials is implicitly an attempt to ensure that the crime (a form of torture that combines a violation of bodily integrity with an undermining of subjectivity) not be confused with the investigation (a form of not-torture that combines a violation of bodily integrity with a reinforcement of subjectivity).
- p.117
- One basic goal of critiques of the post-rape gathering of forensic evidence, in other words, is to keep rape victims conscious, active, consenting, and-no matter what the discomfort-in full possession of a coherent self. The declarations of consent are repetitive; the extent to which the rape victim is always hyperbolically “aware” of what is going on is extraordinary. And again, the purpose of this insistence is to highlight the legality of these new violations of the victim's bodily integrity, to fortify the rape victim's political rights even as physically they are being undermined. It may be, in other words, that the gathering of evidence involves an intimate regulation of the sexual and the biological, it may be that t involves disturbing and indeed completely erasing bodily borders and boundaries, it may be that all of this occurs in the name of securing truth and testimony. But the process is “not” (like rape) torture. It is the opposite of torture-the violation of bodily integrity happening here is a reinforcement of the rights and the political subjectivity that the rape itself has undermined. At the same time, however, this rhetoric of political subjectivity that surrounds the forensic examination is the only obvious difference between the two processes-physically, they are nearly identical.
- pp.117-118
- [T]he post-rape gathering of forensic evidence is not the only process that involves a violation of bodily integrity in the name of political subjectivity-a violation of bodily integrity, in fact, in the name of the very right to bodily integrity. Virginity examinations in Turkey and the issuing of search warrants for women's vaginas in the United States are two similar activities that play on this late twentieth century rhetoric.
- p.118
- [I]n both Turkey and in the United States, it is the very notion of a protected right to bodily integrity-the maintenance of a hyperbolic political subjectivity-that makes these legal violations of bodily integrity possible. In Turkey, especially after 1999, this political subjectivity was maintained via a resource to consent. Undertaken on the bodies of “consenting citizens” who had, in consenting, waived their rights, the violation of bodily integrity implicit in the virginity examination was simultaneously a fortification of the right to bodily integrity. A waived right is still a right. Consent plays less of a role in the vaginal searches undertaken by United States police officers and customs officials-indeed Rodriques insisted that she had been physically forced onto and held down on the examination table. But a second, equally effective protector of rights was mobilized instead-that is, the issuance of a search warrant. Like the right to consent, the search warrant exists to protect United States citizens' rights, particularly their right to privacy-a right which by the 1990s had become inextricably entangled with the right to bodily integrity. The issuance of a search warrant, however- like consent-waives this right even as it reinforces it. It is precisely the protected nature of Rodriques privacy and bodily integrity-the existence of her rights-that make possible a legal search of her vagina. Neither the virginity examination nor the vaginal search is thus a rape. Neither is torture. Each is instead nothing more nor less than a reinforcement of a woman's right and duty to protect her bodily orders and to protect her political subjectivity via the violation of each.
- pp.120-121
- What, then, is a rape? I have addressed over the past few pages the line between criminal sexual activity and non-criminal sexual activity both theoretically and anecdotally. We have seen that the coming together of consent and bodily integrity, as well as the conflation of autonomy and integrity, as led-theoretically, at least-to a situation in which all sex is a crime, mitigated merely by the existence of consent. We have likewise seen the complex process by which rape, newly defined as torture, has been differentiated from legal violations of bodily integrity-how the undermining of political subjectivity that accompanies rape and torture is held up against the fragile, coherent political self that is maintained when evidence (of rape, drug smuggling, or virginity) is gathered from a passive, trespassed body. Finally, we have seen the coming together of biological or bodily and political borders in these legal violations-a process nearly the opposite of the separation of the political from the biological or bodily that occurs in criminal violations.
- p.121
"Women’s Rights as Human Rights: Local and Global Perspectives" (Dublin, March 1997)
[edit]Niamh Reilly, "Women’s Rights as Human Rights: Local and Global Perspectives Strategies and Analyses from the ICCL Working Conference on Women’s Rights as Human Rights" (Dublin, March 1997); "Bodily Integrity and Security of Person". whr1998.tripod.com. (20 February 2020).
- The discussion began with the idea that "bodily integrity unifies women and that no woman can say that it does not apply to them." The group went on to explore what is meant by women’s human right to Bodily Integrity and identified several key elements which are central to the concept:
- Freedom of Movement. This is a basic civil right which is often severely limited in women’s daily lives. The threat of assault, rape, and other forms of violence against women, limits where women can go, who they go with, how they travel, and the time of the day or night they can enjoy "freedom of movement."
- Security of Person. The right to live in safety underscores women’s right not to be subjected to physical, sexual, or emotional violence inside or outside the home, either by private individuals or by people acting on the part of the state. Sexual harassment of women prisoners, or the use of rape as a form of torture, are examples of state-sponsored violations of Bodily Integrity. Participants in the working session highlighted the issue of strip searching by security forces in Northern Ireland as a major area of concern in this regard. It was also stated that the right to Bodily Integrity and security of person includes mental integrity, that is, freedom from mental and psychological abuse.
- Reproductive and Sexual Rights. Control of reproductive and sexual rights was also put forward as central to the idea of Bodily Integrity. This includes "the right to information about our bodies and the idea that that women do not have sole responsibility for contraception." Reproductive and sexual rights affirm the rights of all women—including women with disabilities and lesbians—to sexual expression and to make their own informed decisions about reproduction.
- Women’s Health. The right of women to Bodily Integrity also includes the right to health and demands woman-centred health care. Reproductive and gynaecological health services are the largest part of women’s experience within the medical establishment.
- Breaking Women’s Isolation. Participants in the working session also took a broader view of Bodily Integrity and Security of Person by including women’s physical isolation from services and resources as an issue under this theme.
- A broader interpretation of Bodily Integrity also insists on the right of women to an identity that is not defined in terms of men and the traditional nuclear family. As one participant put it, "I am tired of being called a single parent. I am a woman with a child and choose not to be with a partner. Yet I am seen as a woman without a man or a woman whom a man didn’t want."
- Education and Bodily Integrity. All the groups identified a huge need for education from primary school onward. Children have the right to bodily integrity. As one woman asked, "who owns children’s bodies?" The Stay Safe Programme (in the Republic of Ireland) was cited as an example of an important strategy in this area. However, while many felt it was useful, it was also noted that once-off programmes were not enough and that an integrated approach needs to be adopted by schools. Such an approach would not only address the dangers of violations of bodily integrity but would also foster "a celebration of our bodies as women."
As part of this much needed education the following areas were cited as requiring attention: children, especially girls, need to be educated about bodily integrity and to learn that no one has the right to violate that integrity; girls should be taught that they are not responsible for the sexual responses of men; girls should be encouraged to take pride in their bodies (yet the current value attached solely to girls/women’s physical appearance needs to be redressed).