1. See Estrich, S., Real Rape (1987)Google Scholar; Dripps, D., Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent, 92 Colum. L. Rev. 7 (1992)CrossRefGoogle Scholar; Schulhofer, S., Taking Sexual Autonomy Seriously: Rape Law and Beyond. 11 Law and Philosophy 1, 2 (1992)CrossRefGoogle Scholar; Henderson, L., Rape and Responsibility, 11 Law and Philosophy 1, 2 (1992)CrossRefGoogle Scholar; West, R., The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal TheoryGoogle Scholar, in At the Boundaries of Law (Fineman, M.A. and Thomadsen, N.S., eds., 1991)Google Scholar; MacKinnon, C., Toward a Feminist Theory of the State (1989).Google Scholar

2. Blackson, W., Commentaries on the Law of England (1765–1769).Google Scholar

3. Debra Rhode illustrates this point by citing that, in many ancient societies, the punishment was not directed solely at the aggressor. In some cultures the victim was required to marry the assailant, and her father was entitled to rape the aggressor's wife or sister. Justice and Gender (1989) at 225.Google Scholar

4. Id. at 244–45.

5. Williams, G., The Proof of Guilt (1963), at 159.Google Scholar

6. Wigmore, J.H., Evidence in Trials at Common Law, revGoogle Scholar, (Chadbourn, James, ed., 1970), Vol. 3A, Sec. 924a.Google Scholar

7. Williams, , supra note 5, at 162.Google Scholar

8. Estrich, , supra note 1, at 29.Google Scholar

9. The fact that all rapes were considered one of the most serious crimes, with punishments similar to those for homicide, reinforced this attitude.

10. The crime of rape centers on penetration; sexuality gets defined in terms of penetration. Feminists have argued that the focus on penetration is a male perspective on the loss of sexual violation. Women's view of when they are violated often is different from men's, and yet the male view is determinative.

11. Estrich, , supra note 1, at 65.Google Scholar

12. Consider the Wyoming Supreme Court's reversal of a conviction in Gonzales v. State. Like Rusk, the defendant and victim met in a bar and the defendant requested a ride home. The victim refused, but the defendant got into her car anyway. The victim repeated her refusal to drive him, but after unsuccessfully trying to get him out of her car, she started to drive. He asked her to turn down a road and stop so that he could urinate. Before getting out of the car he removed her keys from the ignition. When he returned, he told her he was going to rape her. She tried to talk him out of it. “He told her he was getting mad at her and then put his fist against her face and said, ‘I'm going to do it. You can have it one way or the other.’” The Wyoming Supreme Court argued that the trial court's standard of reasonable fear was in error. It should not place the determination “solely in the judgment of the prosecutrix and omit the necessary element of a reasonable apprehension and reasonable ground for such fear; and the reasonableness must rest with the fact finder.” The test is appropriate, but what the court should have claimed is that it was a “harmless error,” since a fact finder should (if asking whether the reasonable woman would have been afraid) have found that the fear was reasonable. The court seemed to suggest that a trier of fact might not find the fear in this case reasonable.

13. Note, The Resistance Standard of Rape Legislation 18 (1966).Google Scholar

14. Note, Foreible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 (1952)Google Scholar. This note is cited many times, most recently in comments to the influential, edited Model Penal Code, published in 1980.

15. Estrich, , supra, note 1, at 62.Google Scholar

16. Estrich, , supra, note 1, at 63.Google Scholar

17. Estrich, , supra, note 1.Google Scholar

18. Commonwealth v. Minarich, 498 A.2d 395 (Pa. Super. 1985).Google Scholar

19. People v. Evans. 85 Misc. 2d 1088, 379 N.Y.S. 2d 912 (1975).Google Scholar

20. See Davis, M., What Does Rape Deserve? 3 Law and Philosophy 61 (1984)CrossRefGoogle Scholar, for an argument supporting the claim that unaggravated rape is no more serious than simple battery and should be punished accordingly.

21. West, R., Legitimating the Illegitimate: A Comment on Beyond Rape, 93 Colum. L. Rev., at 1148.Google Scholar

22. MacKinnon, , supra note 1 at 173Google Scholar. This definition has a history. For instance, the Supreme Court of Nebraska said in 1889: “Voluntary submission by the woman, while she has power to resist, no matter how reluctantly yielded, removes from the act an essential element of the crime of rape…. [I]f the carnal knowledge was with the consent of the woman, no matter how tardily given, or how much force had therefore been employed, it is no rape.” Without this view of legitimate forms of sex, why include both the elements “with force and without consent”? This would appear redundant.

23. The convictions were reversed because of the judge's failure to give consent instructions.

24. MacKinnon, , supra note 1 at 175.Google Scholar

25. Id. at 168.

26. Id. at 175.

27. Id.

28. Id. at 245.

29. There are, of course, instances of legal physical force, e.g., football, boxing, surgery.

30. Dripps, , supra note 1 at 1786.Google Scholar

31. Id. at 1788.

32. Id.

33. Id. at 1799.

34. Chamallas, M., Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. Cal. L. Rev. 777, 836 (1088).Google Scholar

35. Dripps, , supra note 1 at 1791.Google Scholar

36. States have differed in their treatment of this kind of case; see Dressler, J., Understanding Criminal Law (1987) at 526.Google Scholar

37. Of course, not all men share views about what is threatening and what is not threatening.

38. See Fairstein, Linda's comments in Men, Women and Rape in 63 Fordham L. Rev. at 158.Google Scholar

39. Feinberg, J., Harm to Self (1986) at 177.Google Scholar

40. Baker, B., Consent, Assault and Sexual AssaultGoogle Scholar, in Legal Theory and Practice (Bayefsky, Anne, ed., 1988) at 233.Google Scholar

41. Id. at 233.

42. Consent has sometimes been construed in the “attitudinal” sense of having an attitude of approval toward something. Even if this is a true sense of consent, it is not what we would want to say generates rights, that is, grants permission, to do what is otherwise impermissible.

43. Locke, J., Second Treatise of GovernmentGoogle Scholar (Macpherson, C.B., ed., 1980), Book II, Ch. VIII, Sec. 120.Google Scholar

44. Simmons, A. John, Moral Principles and Political Obligations (1979) at 77.Google Scholar

45. Id. at 81.

46. Hume, D.. Of the Original ContractGoogle Scholar in Hume's Ethical Writing (MacIntyre, A. ed., 1965).Google Scholar

47. Feinberg, supra note 40 at 184.

47. Catharine MacKinnon has commented on this same phenomenon, saying, “[R]ape law … uniformly presumes a single underlying reality, rather than a reality split by the divergent meanings inequality produces.” Toward a Feminist Theoryofthe State, at 180.

49. At auctions, for example, certain gestures are taken to signify assent to particular prices. In many instances, individuals new to auctions have been misinterpreted as acting in these symbolically appropriate ways.

50. Married couples, or couples who otherwise have long-term established conventions, will continue to express consent through symbolically appropriate behaviors. The legal question will be whether, at the time of the alleged assault, the background conditions had changed such that the man should not have relied on the symbolically appropriate behavior. If a couple is estranged or is fighting, the partners should not rely on conventions that were established when their relationship was mutually caring.

51. Something like this is done in contract law with the Statute of Frauds. The Statute of Frauds does not recognize certain agreements, e.g., verbal contracts for real estate exchanges, because of the problems of misunderstanding that come out of those circumstances.

52. For an excellent detailed discussion of coercion, see Feinberg, , Harm to Self, supra note 40, pp. 189–268.Google Scholar

53. Id. at 287.

54. Id. at 295.

55. Id.

56. Of course, selling sex for money is illegal. This fact complicates these fraud cases.

57. See Femberg, , Harm to Self, supra note 40 at 261 ff.Google Scholar

58. Husak, D.N. and Thomas, G.C. III, Date Rape, Social Conventions, and Reasonable Mistakes, 11 Law and Philosophy 1, 2 (1992) at 122.CrossRefGoogle Scholar

59. Perper, T. and Weis, D., Proceptive and Rejective Strategies of U.S. and Canadian College Women, J. Sex Research 23 (1987). at 471.CrossRefGoogle Scholar

60. This raises the issue of whether criminal liability should be based on “objective” or “subjective” standards. This dispute often surfaces in determinations of whether a defendant intended to bring about a given result. According to “objectivists,” a person intends the natural and probable consequences of his acts, and his intention for purposes of imposing criminal liability is established by reference to the “reasonable person.” If the reasonable person would have foreseen that a given consequence would follow from his conduct, then the defendant is held to have intended that result. “Subjectivists” contend that what a defendant intends depends only on what he in fact foresees. This debate is crucial in cases in which a reasonable person would have foreseen a given consequence, although the particular defendant did not

61. Boyle, C., Sexual Assault (1984)Google Scholar. She analogizes the benefits and the riskiness of sexual activity with the benefits and riskiness of driving.