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A Comment on Consent, Sex, and Rape

Published online by Cambridge University Press:  16 February 2009

Robin West
Robin West
Affiliation:
Georgetown University
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Extract

During the last 25 years, rape law has undergone a profound transformation, as the articles in this symposium clearly show. To mention just three of the more striking doctrinal reformations: All states have repealed the most egregious aspects of die marital rape exception; most have abandoned the “utmost resistance” requirement; and all have enacted rape shield laws to protect complaining witnesses from intrusive inquiries into their sexual history. All three reforms were the product of feminist agitation, all three were aimed toward the general end of redirecting rape law toward the protection of women's, rather than men's, interests, and all three did, to some degree, broaden and democratize the scope of the law's protection: Wives, prostitutes, promiscuous girls, and women not inclined to risk their deaths by fighting off their rapists “to the utmost” are now protected by the law of rape against sexual assault, at least in theory, and at least to the same degree as non-wives and non-prostitutes, fighters, and virgins. All of this, virtually every contributor to this symposium agrees, is very much to the good.

Type
Articles
Information
Legal Theory , Volume 2 , Issue 3 , September 1996 , pp. 233 - 251
Copyright
Copyright © Cambridge University Press 1996

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References

1. MacKinnon, C., Toward a Feminist Theory of the State (1989).Google Scholar

2. Id.

3. For an example of this defense in action, see the case cited in McGregor, note 24, and text accompanying.

4. Estrich, S., Real Rape (1987).Google Scholar

5. Well—I thought it was amusing. Surely, it represents a perverse sort of progress. In the very bad old days, husbands used to just physically force their wives to have bad sex. Then that got burdensome, so they created a marital duty, both legally and socially enforced, to just stare at the ceiling, think of the queen, and endure it. Now we have John Rawls and Susan Okin invoked for the cause. Eventually, of course, and not too far off, women will have the emotional wherewithal and the economic power to just go out on strike.

I agree with Wertheimer that the distribution of sexual satisfaction within a marriage between spouses with differing sexual appretites or tastes is a legitimate problem of justice. We disagree, essentially, on what are basically two “baseline” facts, but it is hard to say how the disagreement could be resolved. I think the common practice, engaged in by many women over the course of an entire adult lifetime, of consenting to sex they do not enjoy and do not desire is quite harmful. It is not just “unsatisfying.” Second, Professor Wertheimer apparently thinks that the current status quo is that these couples don't have sex when he wants to and she doesn't. The problem prompting his discussion is that of the frustrated but chivalrous husband, and he thinks it can be partially solved by asking wives to impose on their own decision making the constraint of justice. Were they to do so, they would consent more often. The problem prompting my interest in this dynamic is very much the opposite: the woman who routinely consents to unpleasant and undesired sex. I don't know how to determine which is the greater problem.

I should add that his discussion of the limits of conceptual and philosophical analysis of the nature of consent for purposes of the criminal justice system is entirely convincing and should be required reading for law students and moral philosophers both.