1. For a sample of recent writing on this subject, see Estrich, S., Real Rape (1987)Google Scholar; MacKinnon, C.A., Toward A Feminist Theory of the State 171–83 (1989)Google Scholar; Chamallas, M., Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. Cal. L. Rev. 777 (1988)Google Scholar; Dripps, D.A., Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent, 92 Colum. L. Rev. 1780 (1992)CrossRefGoogle Scholar [hereinafter Dripps, Beyond Rape]; Dripps, D.A.. More on Distinguishing Sex, Sexual Expropriation, and Sexual Assault; A Reply to Proffessor West, 93 Colum. L. Rev. 1460 (1993)CrossRefGoogle Scholar; Henderson, L.. Rape and Responsibility, 11 Law & Phill. 127 (1992)CrossRefGoogle Scholar; Husak, D.N. and Thomas, G.C. III, Date Rape, Social Convention, and Reasonable Mistakes, 11 Law & Phil 95 (1992)CrossRefGoogle Scholar: McGregor, J., Force. Consent, and the Reasonable WomanGoogle Scholar, in Coleman, J.L. and Buchanan, A., In Harm's Way Essays in Honor of Joel Feinberg 231 (1994)Google Scholar; Murphy, J.G.. Some Ruminations on Women, Violence, and the Criminal LawGoogle Scholar, in Coleman, and Buchanan, , supra at 209Google Scholar; Schulhofer, S. J., Taking Sexual Autonomy Seriously, 11 Law & Phil. 35 (1992)CrossRefGoogle Scholar; West, R.L., Legitimating the Illegitimate: A Comment on Beyond Rape, 93 Colum. L, Rev. 1442 (1993).CrossRefGoogle Scholar

2. Professor Donald Dripps has suggested that the problem of consent can be avoided, without abandoning liberal premises, by recognizing a crime of sexual appropriation in which sex with a woman who has expressed her refusal is treated as the theft of an entitlement. See Dripps, , supra note 1 at 1785–88, 1803–06.Google Scholar But refusal is simply the other side of consent. And, in any event, what is a system of entitlements without the concept of consent?

3. See Austin, J. L., How to Do Things With Words 14Google Scholar (2d ed., Urmson, J.O. and Sbisa, M., eds., 1975).Google Scholar

4. For different versions of this idea, see, e.g., Ackerman, B A., Social Justice in the Liberal State 10–12 (1980)Google Scholar: Dworkin, R., Foundations of Liberal Equality, in The Tanner Lectures on Human Value XI. Vol. II. 1. 4, 64. 75–86Google Scholar (Peterson, G.B. ed., 1990)Google Scholar; Dworkin, R., A Matter of Principle 191–92 (1985)Google Scholar;Feinberg, J.. Harm to Self 57–62 (1986)Google Scholar; Fuller, L.L., Human Interaction and the Law, in Principles of Social Order 211, 244Google Scholar (Winston, K.I. ed. 1981Google Scholar); Hart, H.L.A., Punishment and Responsibility 44–47 (1968)Google Scholar; Mill, J.S.. On Liberty 13–16 (1859Google Scholar; Collini, S. ed., 1989Google Scholar); Nagel, T., Equality and Partiality 154–68 (1991)Google Scholar;Rawls, J.. A Theory of Justice 325–28 (1971).Google ScholarBut cf. Raz, J., The Morality of Freedom 16–19, 107–62 (1986)Google Scholar (rejecting individualistic and anti-perfectionist accounts of liberalism).

5. At least, this is the Lockean version, and the framework on which the U. S. Constitution and much of the common law are based. See Epstein, R-A., Takings: Private Property and Two Power of Eminent Domain 7–18 (1985)Google Scholar; Feinberg, , supra note 4 at 52–57Google Scholar; Locke, J., Two Treatises of Government §§4–51Google Scholar (1698; Laslett, Peter ed., 1963Google Scholar); Nozick, R., Anarchy. State, and Utopia 32–33, 149–74 (1971).Google ScholarSee also Berlin, I., Four Essays on Liberty 164–66 (1969)Google Scholar (“that no power, but only rights, can be regarded as absolute” and “that there are frontiers, not artificially drawn, within which one should be inviolable”); Mill, , supra note 4 at 13Google Scholar (interference with individual liberty is justified only to prevent harm to others); Rawls, , supra note 4 at 28–32Google Scholar (priority of right over good). Cf. Raz, , supra note 4 at 245–63Google Scholar (rights as protective of collective goods rather than individual interests).

6. See Epstein, , supra note 5 at 57–62Google Scholar; Locke, , supraGoogle Scholar note 5, §47; Waldron, J., The Right to Private Property 53–55 (1988)Google Scholar; Honore, A.M., Ownership, in Oxford Essays in Jurisprudence 107, 120–21Google Scholar (Guest, A.G. ed., 1961).Google Scholar

7. See Barnett, R.E.. A Consent Theory of Contract, 86 Colum. L. Rev. 269, 291–300 (1986).CrossRefGoogle ScholarSee also Scanlon, T.M. Jr., The Significance of Choice, in VIII The Tanner Lectures on Human Values 149, 178–81Google Scholar (McMurrin, Sterling M. ed., 1988Google Scholar) (“predictive.” “demonstrative,” and “symbolic” reasons why people want outcomes to depend on choice).

8. On the elusive character of autonomy and free will, see, e.g., Dworkin, G., The Theory and Practice of Autonomy 9–12 (1988)Google Scholar; Raz, . supra note 4 at 148–57, 369–78Google Scholar; Dripps, , Beyond Rape, supra note 1 at 1787–90Google Scholar; Scanlon, , supra note 7 at 152–58.Google ScholarSee generally Fallon, R.H., Two Senses of Autonomy, 46 Stan. L. Rev. 875 (1994)CrossRefGoogle Scholar (distinguishing between “descriptive” and “ascriptive” autonomy); Feinberg, , supra note 4 at 18–51Google Scholar (the “condition” of autonomy as a set of virtues conducive to moral independence). For a feminist revision of the notion of autonomy, see Nedelsky, J., Reconceiving Autonomy: Sources, Thoughts, and Possibilites, Yale J.L. & Fem. 7, 8, 11. & passim (1989)Google Scholar (a conception of autonomy that encompasses “comprehension, confidence, dignity, efficacy, respect, and some degree of peace and security from oppressive power”).

9. See Feinberg, , supra note 4 at 31, 43–44Google Scholar (autonomy requires challenge as well as luck).

10. Professor Dripps's illustration is the Bathhouse Encounter. Dripps, , Beyond Rape, supra note 1 at 1788–89.Google Scholar

11. Utilitarian theory provides another reason to be concerned with consent to sex: Mutual consent is evidence that both parties expect sex to add to their welfare. Utility suggests, too, that we should worry about the quality of consent, since faulty information or a serious distortion of preferences upsets the assumption of utility. At the same time, any rule that limits the effect of consent or attaches risks to a proposal of sex carries a cost in the form of less consensual sex. Of course, nothing in utilitarian theory requires that the benefit must take the form of sexual pleasure. In developing an economic model of sexual behavior, Judge Posner identifies three types of benefit people may derive from sex: “procreative, hedonistic, and sociable” (the last of which includes commercial relationships). Posner, R.A., Sex and Reason 111–12 (1992).Google Scholar The outline of Posner's theory of rational choice in sexual relations is set out in id. at 111–15. Some of the externalities of consensual sex are discussed in id. at 183–99.

One interesting variant on utilitarian calculation—or, at least, on the study of rational choice—is sociobiology, which suggests that some of our preferences about sex are biologically determined. These include a disposition in males (who have unlimited reproductive capacity) to have sex with as many females as possible, and a disposition in females (who have limited reproductive capacity) to have sex only with those males who will help to support their children. See, e.g., Posner, at 89–98Google Scholar; Symons, D., The Evolution of Human Society 206–08 (1979)Google Scholar; Wilson, G.. Love and Instinct 58–86 (1983).Google Scholar

12. See Leviticus 18; Bowers, v. Hardwick, , 478 U.S. 186, 190–96 (1986)Google Scholar; id. at 196–97 (Burger, C.J., concurring); Pope John Paul II, The Gospel of Life [Evangelium Vitae] §§13. 23. 97 (1995).Google Scholar

13. For the suggestion that individual personality is inseparable from the values of the communities to which the individual belongs, see Sandel, M.J., Liberalism and The Limits of Justice 179–83 (1982)Google Scholar; Rorty, R.. Postmodern Bourgeois Liberalism, 8 J. Phil. 583, 585–87 (1983).CrossRefGoogle ScholarSee also Feinberg, , supra note 4 at 33–35, 38–39, 41, 45–47Google Scholar (on the need for “basic normative tools”); Fuller, L.L., supra note 4 at 213–14Google Scholar (custom as the “language of interaction”); MacIntyre, A.. After Virtue 204–25 (2d ed. 1984)Google Scholar (on the importance of social life);Balkin, J.M., Ideology As Cultural Software, 16 Cardozo L, Rev. 1221 (1995)Google Scholar (cultural construction enables as well as limits).

14. A masterwork on the social construction of sex is Foucault, M., The Historyof Sexuality Vol. IGoogle Scholar; Introduction (Hurley, R. trans., 1980Google Scholar). Foucault described his enterprise in this way:

[T]o account for the fact that [sex] is spoken about, to discover who does the speaking, the positions and viewpoints from which they speak, the institutions which prompt people to speak about it and which store and distribute the things that are said. What is at issue, briefly, is the over-all “discursive fact,” the way in which sex is “put into discourse.” Hence, too, my main concern will be to locate the forms of power, the channels it takes, and the discourses it permeates in order to reach the most tenuous and individual modes of behavior, the paths that give it access to the rare or scarcely perceivable forms of desire, how it penetrates and controls everyday pleasure.

For examples of feminist deconstruction. see, e.g., de Beauvoir, S., The Second Sex 684–96Google Scholar (Parshley, H.M. trans. 1968Google Scholar); MacKinnon, , supra note 1 at 83–154Google Scholar; Rich, A., Compulsory Hetero-sexuality and Lesbian Existence, 5 Signs 631 (1980).CrossRefGoogle Scholar

15. See Dworkin, A., Pornography: Men Possessing Women 13–24 (1979)Google Scholar; MacKinnon, , supra note 1 at 123–24, 128–29, 140–41, 149–50, 153Google Scholar (“sexuality as a construct of male power: defined by men, forced on women, and constitutive of the meaning of gender”); Dworkin, A., Against the Male Flood: Censorship, Pornography, and Equality, 8 Harv. Women's L.J. 1, 15–16 (1985)Google Scholar [hereinafter Dworkin, Male Flood]; Rich, , supra note 14 at 641–48, 652–54.Google Scholar

16. See West, , supra note 1 at 1455 (1993).Google ScholarSee also Chamallas, . supra note 1 at 794, 835–62Google Scholar (an ideal of “egalitarian” sex, in which “both partners have as their objective only sexual pleasure or emotional intimacy”); Larson, J.E., Women Understand So Little, They Call My Good Nature “Deceit”: A Feminist Rethinking of Seduction, 93 Colum. L, Rev. 374, 426–28 (1993)CrossRefGoogle Scholar (choice is constrained by sexual custom and economic dependency).

17. For suggestions that women's free choice in sex and other matters is illusory, see, e.g., MacKinnon, , supra note 1 at 149–50, 153Google Scholar; Finley, L.M., Choice and Freedom: Elusive Issues in the Search for Gender Justice, 99 Yale L.J. 914, 932–35 (1987)CrossRefGoogle Scholar; Rich, , supra note 14 at 646–48Google Scholar; Williams, J.C., Deconstructing Gender, 87 Mich. L. Rev. 797, 829–31 (1989).CrossRefGoogle ScholarSee also Chamallas, , supra note 1 at 814–15Google Scholar (questioning the validity of the legal notion of consent under current social conditions); Pateman, C., Women and Consent, 8 Pol. Theory 149, 154–62, 164 (1980)CrossRefGoogle Scholar (laws assume women's consent, based on a view of women as naturally submissive); West, R.L., The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 3 Wise. Women's L. J. 81. 93, 101–03, 108–11Google Scholar (women may consent to sex out of fear, or a desire to please, or a need for recognition, rather than rational self-interest). Cf. Abrams, K., Ideology and Women's Choices, 24 Ga. L. Rev. 759 (1990)Google Scholar (agreeing that women's choices are constrained, but criticizing “ideological determination” arguments as oversimple and strategically unwise). For analysis of the notion of false consciousness, see Wertheimer, A., Exploitation (1996) at 258–64.Google Scholar

18. See, e.g., MacKinnon, , supra note 1 at 244–49Google Scholar; Dworkin, , Male Flood, supra note 15 at 20–24Google Scholar (proposing an anti-pornography ordinance).

19. For a carefully reasoned analysis of questions of this type, see Richards, J.R.. The Sceptical Feminist: A Philosophical Enquiry 120–60 (2d ed. 1994).Google Scholar

20. See Radin, M.J.. Market Inalienability, 100 Harv. L. Rev. 1849, 1915–17 (1987).CrossRefGoogle Scholar

21. See Hunter, N.D. and Law, S.A.. Brief Amici Curiae of Feminist Anticensorship Task Forte et el in American Booksellers' Association v HudnutGoogle Scholar, reprinted in Smith, P., Feminist-Jurisprudence 467, 474–75 (1993)Google Scholar; Stossen, N., A Feminist Critique of “The” Feminist Critique of Pornography. 79 Va. L. Rev. 1099, 1138–40 (1993).CrossRefGoogle Scholar

22. See, e.g., Radin, , supra note 20 at 1903–09Google Scholar; West, , supra note 1 at 1449–51.Google Scholar For a frank treatment of sex as a commodity, see Dripps, , Beyond Rape, supra note 1 at 1786–87.Google Scholar

23. For sociobiological analysis, See Symons, , supra note 11 at 251–74Google Scholar (on sex as a commodity).

24. See, e.g., MacKinnon, C.A., Feminism Unmodified 99–102 (1987)Google Scholar (the notion of privacy protects “the central institutions whereby women are deprived of identity, autonomy, control and self-definition; and the primary activity by which male supremacy is expressed and enforced”); Larson, , supra note 16 at 438–44Google Scholar (“The choice not to publicly regulate a sphere of society amounts to a choice to cede governance of that sphere to private regimes of power”); Olsen, F.E., The Myth of Statt Intervention in the Family, 18 U. Mich.J.L. Reform 835, 842–58 (1985)Google Scholar (privacy is incoherent).

For a brief history and vivid description of the liberal nouons of public and private life, see Heriot, G.L., The New Feudalism: The Unintended Destination of Contemporary Trends in Employment Law, 28 Ga. L. Rev. 167, 175–90 (1993).Google Scholar

25. See Fuller, , supra note 4 at 237–44Google Scholar (on the superiority of customary law in intimate relations).

26. See Feinberg, , supra note 4 at 172–75Google Scholar (distinguishing “actual consent” from “dispositional consent”).

27. Austin, , supra note 3 at 155–57Google Scholar; Searle, J.R., Expression and Meaning: Studies in the Theory of Speech Acts 15–20 (1979).Google ScholarSee also Feinberg, , supra note 4 at 178Google Scholar (on consent as a performative).

Austin referred to consent both in his discussion of exercitives—utterances used for “the exercizing of powers, rights, or influence”—and in his discussion of “commissives,” which are used “to commit the speaker to a certain course of action.” Austin, , supra note 3 at 151. 156. 157–58.Google Scholar I prefer the former category because it captures the role consent plays in a system of rights and duties.

Searle's category of “declaratives” is a more precise fit: “successful performance [of a declarative] brings about the correspondence between the prepositional content [of the declaration] and reality.” Searle, , supra at 16.Google Scholar

28. The reference is to Professor Hohfeld's taxonomy of legal relations. Hohfeld, W.N., Fundamental Legal Conceptions 35–64 (1919).Google Scholar

29. See Feinberg, , supra note 4 at 172–74.Google ScholarSee also Barnett, , supra note 7 at 300–07Google Scholar (objective consent as the basis of contract enforcement); Fuller, L.L., Consideration and Form, 41 Colum. L. Rev. 799, 806–08 (1941)CrossRefGoogle Scholar (objective contract interpretation and the principle of private autonomy).

30. See Hart, , supra note 4 at 90–92, 104–06Google Scholar; Searle, J.R., Intentionality: An Essay in the Philosophy of Mind 84–85 (1983)Google Scholar; Alexander, L.. Reconsidering the Relationship Among Voluntary Acts. Strict Liability, and Negligence in Criminal Law, 7 Soc. Phil, & Pol. 84–86 (1990).CrossRefGoogle Scholar

31. On the connection between speech acts and intentional state—that is, mental states or mental events directed at objects in the world—see Searle, , supra note 30 at 4–13, 163–79.Google ScholarSee also Austin, , supra note 3 at 39–40 (insincerity).Google Scholar

The word decision comes from the Latin decidere, which means “to cut from.” Oxford English Dictionary, Vol. III 760 (2d ed. 1991).Google Scholar The word consent comes from the Latin consentire, which means, interestingly, “to feel (something) together.” Id., Vol. II 332.

32. Austin's criteria for a successful speech act are set out in Austin, , supra note 3 at 13–23.Google ScholarSee also Searle, J., What Is a Speech Act?, in The Philosophy of Language 39, 46–51Google Scholar (Searle, J.R. ed., 1971Google Scholar) (necessary and sufficient conditions for performance of the act of promising).

Austin excluded defects such as fraud and duress from his discussion of speech act infelicities, classing these as “dimensions of unsatisfactoriness to which all actions are subject Austin, , supra at 21.Google Scholar Because these defects are important to my analysis of consent to sex, I am using the term infelicity in a more comprehensive sense.

33. See Austin, , supra note 3 at 15–17Google Scholar (misfires, abuses, and Boolean algebra).

34. I doubt it is useful to say that the nature of consent differs from one context to another, so that consent to sex is a unique type of act. Yet, consent in different contexts is susceptible to different types of infelicity, and different considerations will bear on which infelicities should invalidate the act.

35. Austin, , supra note 3 at 39–40.Google Scholar

36. Searle, , supra note 32 at 50.Google Scholar There is a threshold problem of capacity—whether the speaker is capable of forming the requisite mental state. This is a significant problem for consent to sex, not because we should doubt the general capacity of women to consent, but because sexual mistakes often take place when those involved have had too much to drink. See, e.g., Commonwealth v.Berkowitz, 641 A.2d 1161, 1163 (Pa. 1994)Google Scholar (a dormitory martini); State v. Rusk, 424 A.2d 720, 721 (Md. 1981)Google Scholar (bar-hopping). A woman who is drunk to the point of incoherence may be too far removed from her accustomed self to make what we think of as a decision, and a man who has sex with her, at least when reasonably sober himself, is engaged in a particularly unattractive form of exploitation. Beyond that, capacity to consent is a difficult question of degree, complicated by the problem of the defendant's perceptions. See Dressier, J., Understanding Criminal Law §§24, 02–24. 03 (1995)Google Scholar (criticizing traditional rules on voluntary intoxication); Feinberg, , supra note 4 at 335–37Google Scholar (a standard of substantial impairment). On the effect of a reasonable mistake about consent, see note 41 infra.

37. See Hart, , supra note 4 at 11–13, 44–50Google Scholar (retribution in distribution). See also West, , supra note 1 at 1459Google Scholar (recognizing that some sexual bargains she views as illegitimate are nevertheless beyond the reach of “sensible” criminal law).

38. See note 23 and accompanying text, supra.

39. Compare, e.g., Paul, Pope John II, supra note 12, §23 at 41–42Google Scholar (“the two meanings, unitive and procreative” of human sexuality) with Chamallas, . supra note 1 at 784Google Scholar (pleasure and intimacy).

40. “No” might mean “not yet,” or “persuade me,” or “make me.” See Paglia, C., Sex, Art, and American Culture 5 (1992)Google Scholar (“‘no’ has always been, and always will be part of the dangerous, alluring courtship ritual of sex and seduction”); Husak, D.N. and Thomas, G.G. III, Date Rape, Social Convention, and Reasonable Mistakes, 11 L, & Phil 95, 122–23 (1992) (on current conventions).CrossRefGoogle Scholar

41. See Feinberg, , supra note 4 at 272Google Scholar (misunderstanding). If a rape prosecution ensues, the probable effect is acquittal. If rape is understood to require a culpable state of mind, the jury is likely to be instructed to acquit if the man's understanding falls within the range of custom. See, e.g., People v. Mayberry, 542 P.2d 1337, 1344–47 (Cal. 1975)Google Scholar (reasonable mistake as a defense); Reynolds v. State. 644 P.2d 621. 625–27 (Alaska App. 1983)Google Scholar (reckless disregard required for conviction); Dressier, , supra note 36, §33.06 at 526–27Google Scholar; Husak, and Thomas, , supra note 40 at 99.Google ScholarSee also Fletcher, G.P., Rethinking Criminal Law 701–02 (1978)Google Scholar (viewing consent as a justificiation, a mistake about consent should not excuse unless reasonable). But see State v. Reed, 479 A.2d 1291, 1295–96 (Me. 1984)Google Scholar (rape does not require a culpable state of mind); Commonwealth v. Williams. 439 A.2d 765, 769 (Pa. Super. 1982)Google Scholar (reasonable mistake is not a defense); Estrich, , supra note 1 at 92–96Google Scholar (focus of American courts is on force rather than defendant's state of mind).

42. Here is the fullest list I can think of:

no fierce resistance

no protest

no protest after inquiry

no protest after a prescribed inquiry

explicit language of consent

explicit, prescribed language of consent

explicit consent after inquiry

explicit consent after a prescribed inquiry

For the argument that some legally recognized convention is needed, see Schulhofer, S.J., The Gender Question in Criminal Law, in Crime, Culpability, and Remedy 105, 132–33Google Scholar (Paul, E.F., Miller, F.D., and Paul, J. eds., 1990).Google Scholar

43. See Wisc. Stat. Ann. §940.225(4) (1982 & Supp. 1994)Google Scholar (consent means “words or overt actions… indicating a freely given agreement to have sexual intercourse”); Schulhofer, , supra note 1 at 71–77Google Scholar; Schulhofer, , supra note 42 at 133Google Scholar (“anything less than an explicit ‘yes’ should not count as consent”). See also Combating Rape on Campus in a Class on Sexual Consent, New York Times, 09 25, 1993Google Scholar (describing the Antioch College sexual offense policy).

44. See Fuller, L.L., Means and Ends, in The Principles of Social Order, supra note 4 at 56–57Google Scholar (the “fallacy of infinite pliability of social arrangements”); Fuller, , supraGoogle Scholar note 29 (on the roles of customary, contractual, and enacted law); Hart, H.L.A., The Concept of Law 87–88 (1961)Google Scholar (on the importance of an internal view of law).

45. See Atkinson, T.E., Handbook of the Law of Wills 291–345 (2d ed. 1953)Google Scholar (execution of wills); Brown, R.A., The Law of Personal Property 78–79Google Scholar (3d ed., Raushenbush, W.B. ed., 1975)Google Scholar (delivery of gifts). See also Fuller, , supra note 29 at 800–06Google Scholar (the functions of legal formalities). One possibility for sex is a rule that formal marriage (and only formal marriage) operates as consent. But, in modern times, this is not likely to be well received by men or women.

46. See Utah Code Ann. §76–4–406(1) (1989) (no consent if the “victim expresses lack of consent through words or conduct”). For arguments in favor of a “no” rule, see Estrich, , supra note 1 at 98–103Google Scholar; Dripps, , Beyond Rape, supra note 1 at 1803–04Google Scholar. See also Berger, V., Review Essay: Not So Simple Rape, 7 Crim. Justice Ethics 69, 74–76 (1988)CrossRefGoogle Scholar (an appellate court should not overturn the determination of a jury that “no” meant no consent).

47. See Estrich, , supra note 1 at 102, 104Google Scholar. See generally Feinberg, J., The Expressive Function of Punishment, in Doing and Deserving 95 (1970).Google Scholar

48. For an argument against such a rule, see Husak, and Thomas, , supra note 40 at 113, 117–23Google Scholar. Professors Husak and Thomas suggest that for reasons of justice, the question what constitutes a reasonable mistake (and hence a defense) should be answered empirically, acccording to existing conventions for consent or nonconsent to sex. The difficulty with this position is that—as the authors demonstrate—there is no generally accepted convention by which a woman can effectively refuse consent, short of strong physical resistance. More precisely, there is no act, verbal or nonverbal, that a man could not reasonably take to be consistent with consent, based on existing practices.

49. Profesor Schulhofer makes this point. Schulhofer, , supra note 1 at 42–44.Google Scholar

50. See, e.g., Model Penal Code §2.02(9); Dressler, , supra note 36, §13.01 at 141–44.Google Scholar

51. For criticism of the rule that mistake of law is no defense, see, e.g., Alexander, L., Inculpatory and Exculpatory Mistakes and the Fact/Law Distinction: An Essay in Memory of Mike Bayles, 12 L. & Phil. 33, 35–43 (1993)CrossRefGoogle Scholar; Husak, D. and Von Hirsh, A., Culpability and Mistake of Law, in Action and Value in Criminal Law 157, 166–73Google Scholar (Gardner, J., Horder, J., and Shute, S. eds., 1994).Google Scholar

52. For a contrary view with respect to civil sanctions for sexual fraud, see Larson, , supra note 16 at 446–53, 460–62.Google Scholar

I am assuming that damages would be for offense to dignity and autonomy rather than the economic harm once associated with the tort of “seduction.” See Coombs, M., Agency and Partnership: A Study of Breach of Promise Plaintiffs. 2 Yale J.L. & Fem. 1, 2, 9 (1989).Google Scholar

53. See, e.g., Dripps, , supra note 1 at 1804–07Google Scholar (“sexual expropriation” as a serious misdemeanor or a minor felony). I agree with Professor Dripps that a rape carried out by force or threat of force should be punished much more severely than sex affected by the lesser infelicities with which this article is concerned. See id. at 1797–99.

54. See Estrich, , supra note 1 at 103Google Scholar (sex following a stated no is “a serious offense that should be called ‘rape’”).

55. Cf. Murphy, J.G.. Consent, Coercion, and Hard Choices, 67 Va. L. Rev. 79, 92–94 (1981)CrossRefGoogle Scholar (arguing, with respect to political consent, that consent cannot be inferred from silence unless there is a feasible and not too onerous means of dissent).

56. See Panel Discussion, Men, Women, and Rape, 63 Fordham L. Rev. 125, 146Google Scholar (remarks of Professor Dripps) (“A kiss is just a kiss”). See also Schulhofer, , supra note 1 at 75–76Google Scholar (conceding that, in view of current practice, it is fair to infer consent to lesser intimacies in the absence of express consent).

57. For analysis of the many ways in which consent may be less than full voluntary, see Feinberg, , supra note 4 at 113–24, 172–343Google Scholar; Wertheimer, , supra note 17, at 254–77.Google Scholar

58. See Feinberg, , supra note 4 at 12–16Google Scholar (soft paternalism); Scanlon, , supra note 7 at 177–85Google Scholar (reasons why people value choice and why they “may reasonably demand… the ability to shape their lives and obligations through the exercize of choice under reasonably favorable conditions”); Wertheimer, , supra note 17, at 271–77Google Scholar (how defects in consent may undermine its legitimating force).

59. See Feinberg, , supra note 4 at 113–18Google Scholar (ideal voluntariness and voluntary actions that are “not voluntary enough”); Wertheimer, , supra note 17, mss 8.10, 8.12–8.15 (defects in capacity and defects in circumstances).Google Scholar

60. The question of what interferences are impermissible can be approached in several different ways. Professor Feinberg is interested primarily in the effect of coercive pressure or misinformation on the decision-making process of the person giving consent. Feinberg, , supra note 4 at 213–25Google Scholar. Professor Murphy is interested in the wrongful character of the coercion. Murphy, , supra note 55 at 83–88.Google Scholar

61. See. e.g., Knight v.Jewett, 834 P.2d 696 (Cal. 1992) (touch football)Google Scholar. See generally Keeton, W., Dobbs, D., Keeton, R., and Owen, D., Prosser and Keeton on the Law of Torts 480–498 (5th ed. 1984) (assumption of risk).Google Scholar

I am using the term “competitive game” in a different sense from Professor Feinberg. Feinberg equates this model with commercial relations, in which force and fraud are prohibited. Feinberg, , supra note 4 at 285Google Scholar. I have in mind something more like a sport, in which force and intentional feints are allowed by the rules.

62. Modern contract law is by no means a prescription for the unqualified pursuit of self-interest. But it seems fair to say that when parties deal in ordinary commercial settings and are not grossly mismatched in skills or resources, the law enables them to act in their own interests.

On the question of sharing information, see, e.g., Restatement (Second) of Contracts §161; Farnsworth, E.A., Contracts 238–41 (1982)Google Scholar; Kronman, A.T., Mistake, Disclosure, Information, and the Law of ContractsGoogle Scholar, in Kronman, A.T. and Posner, R.A., The Economics or Contract Law 114, 116–21 (1979)Google Scholar; Wonnell, C. T., The Structure of a General Theory of Nondisdosure, 41 Case W.L. Rev. 329 (1991).Google Scholar

63. See Palmer, G.E.. The Law of Restitution §19.2 at 95–106 (1978) (grounds for setting aside gifts).Google Scholar

64. See Restatement (Second) of Agency §390 (1958) (duties of agent): Restatement (Second) of Trusts §§170.216 (2) (b) and comment k (1959) (duties of trustee); Scott, A.W. and Fratcher, W.F., The Law of Trusts §2.5 at 43–44 (4th ed. 1987)Google Scholar (fiduciary and confidential relations); Schuck, P.H., Rethinking Informed Consent, 103 Yale L. J. 189, 196–220 (1994)CrossRefGoogle ScholarPubMed (duties of physicians); Twerski, A.D. and Cohen, N.B., Informed Decision Making and the Law of Torts: The Myth of Justifiable Causation, 1988 U. Ill. L. Rev. 607, 609–16 (1988)Google Scholar (duties of physicians). See generally frankel, T., Fiduciary Law, 71 Cal. L. Rev. 795 (1983) (on the nature of fiduciary relations).CrossRefGoogle Scholar

65. See Farnsworth, , supra note 63, §4.2 at 213–14.Google Scholar

66. See Palmer, , supra note 63, §19.2 at 95 (rescission and restitution).Google Scholar

67. See Restatement (Second) of Contracts §153 (1959); Farnsworth, , supra note 62, §9.4 at 663–70.Google Scholar

68. See, e.g., Restatement (Second) of Agency §§390 comment h, 399 (1958); Twerski, and Cohen, , supra note 64 at 608–09.Google Scholar

69. See Balos, B. and Fellows, M.L., Guilty of the Crime of Trust: Nonstranger Rape, 75 Minn. L. Rev. 599, 602–11 (1991)Google Scholar. The authors of this article propose to extend “the doctrine of confidential relationship” to rape laws, thereby imposing on men a duty “to inquire as to the victim's desire for sexual contact and the form ofthat desire.” Id. at 607.

70. See Dressler, , supra note 36. §33.05[c]Google Scholar. Some courts have held that consent to sex does not include the risk of contracting a venereal disease if the other falsely represented that he or she had no such disease. See e.g., Kathleen, K. v. Robert, B., 150 Cal. App. 3d 992, 198 Cal. Rptr. 273 (1984)Google Scholar. The consequence, however, is to hold the guilty party liable for the consequences of the disease, rather than the act of sex. Id. at 996–98, 198 Cal. Rptr.at 276–77.

71. See Feinberg, , supra note 4 at 300Google Scholar; Posner, , supra note 11 at 392–93.Google Scholar

72. See Feinberg, , supra note 4 at 285–91Google Scholar (fraud and false pretenses); Farnsworth, , supra note 62, §4.9 at 232Google Scholar (misrepresentation in tort and contract). Cf. Restatement (Second) of Torts §892B, illus. 5–8 and comment g (1977) (attempting, without great success, to distinguish misrepresentation “about the nature of the invasion or the extent of harm to be expected” from misrepresentations about “other matters”).

73. Consider rape shield laws. At least pan of the point of these laws is to recognize the right to be idiosyncratic about sex. She may have slept with 1,000 men in the past, but she still may choose not to sleep with this one. See generally Dressler, , supra note 36, §33.08[c].Google Scholar

74. If the lie pertains to something like venereal disease, a remedy for sexual fraud seems both practicable and fair. See Kathleen, K. v. Robert, B., supra note 70Google Scholar. But the wrong done in such a case is quite different from the wrong done by a false declaration of love. A declaration of love can fairly be seen as part of the package of reasons why one agrees to have sex; thus, the wrong done is falsely procuring consent to sex. A belief that the other has no venereal diseases is not, I hope, the reason why one agrees to have sex, and the wrong done is exposure to disease.

75. For a comprehensive argument to the contrary, see Larson, , supra note 16 at 438–53Google Scholar (reviewing and rejecting arguments in favor of the “sex exception to fraud”) See also Estrich, S., Rape, 95 Yale L.J. 1087, 1115–21 (1986)CrossRefGoogle Scholar (proposing that fraudulent inducement of sex should be subject to criminal penalties).

76. See Feinberg, , supra note 4 at 191–93.Google Scholar

77. See Murphy, , supra note 54 at 80–81.Google Scholar

78. See Wertheimer, , supra note 17, mss at 8.23–8.32Google Scholar (on unequal bargaining power); Schulhofer, , supra note 1 at 84–88Google Scholar (suggesting that in personal relations, as opposed to employment, economic dependency should not vitiate consent to sex).

79. See Dripps, supra note 1 at 1788–89.

80. For reports of women's experiences along these lines, see West, , supra note 17 at 101–03.Google Scholar