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Added: Sharla Gilreath - Date: 13.03.2022 12:11 - Views: 35252 - Clicks: 7471

Modern rape law is undertheorized. Over time, its original justifications have eroded. In their place, certain propositions have become generally if not universally accepted: women are sexual beings; their chastity no longer needs protecting. All this time, however, rape has persisted. Indeed, we now know that the danger is less a stranger in an alley than a husband, co-worker, date, or hook-up. In response to profound shifts in the way we understand both rape and female sexuality, the law of rape has become unstable. It badly needs reconstructing.

Yet the old rationales cannot tell us why rape ought to be specially criminalized in the present day or how. Yet we continue to recognize sexual assault as a unique violation. For a new structuring principle, the leading contender is sexual autonomy, 4 which Rubenfeld ultimately rejects. His case study is sexual fraud, which he deploys in service of conceptualizing the wrong of rape. As a descriptive matter, rape law did not historically prohibit sex-by-deception, except where it was outlawed as seduction.

Liberal notions of autonomy simply cannot be reconciled with the absence of accepted preconditions for valid consent. The choices made by women and men regarding sexual activities are, after all, constrained. When a lover lies, or misrepresents, or neglects to share relevant information, we make decisions that are less than fully informed. Consent obtained under these circumstances is imperfect; depending on the specifics, it may be exceedingly problematic.

For reasons quite different from those he offers, 11 I agree that protecting autonomy is not the best structuring principle for contemporary rape law. A long tradition of feminist legal theorizing explains Forum sex United States this is so.

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As an alternative, I conceive modern rape law as protecting sexual agency. The disconnect between her reality and the premises of liberal autonomy warrants a theoretical reworking. Agency is the construct that. The conceptual move Forum sex United States autonomy spotlights sexual agency as a related norm posing a separate set of concerns and complications.

Sexuality is deeply implicated both in self-definition 20 and in self-direction. Even in a world of widespread sexual violation, women possess a sexuality of their own. This is of course an oversimplification. In fact, profound tensions inhere in the concept of sexual agency, confirming both its distance from autonomy and its relation to it. Sexual agency is bound by the circumstances under which it is exercised.

By contextualizing consent, it is possible to generate an of what unwanted consensual sex looks like. Women make decisions about whether to consent to sex in a fraught social context. The fallacy of equating consent with desire may be pronounced for teenage girls, who often consent to sex for reasons other than sexual desire and whose identities are not yet fully formed. In my view, the harm of rape is best described in relation to the promise, and the imperfection, of agency. I cannot exhaust these subjects here, but I begin mapping a different approach to modern rape law, one that is oriented toward sexual agency.

For all the reasons that sexual agency is complicated, so, too, is it a mistake to idealize sexual subjectivity and consent along with it. Although consent may evidence a desire for sex, this is not always the case. Instead, consent and wanting can diverge.

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This category of sexual conduct is inadequately described by an autonomy norm that negates social context. Agency provides a much richer of the space between consenting and wanting. So, too, does agency better position consent as the pivot point for distinguishing rape from sex. Likewise, for women not to consent to sex, too, is to assert agency. If sex is done to a woman irrespective of this decision, her agency has been quintessentially violated. Put differently, if sex without consent is simply sex and not rapethe nonconsenting woman is more akin to object than subject.

As compared to the actor who imposed his Forum sex United States upon her, she is relatively powerless. Consent qua consent thus becomes a matter of paramount importance. As I discuss below, I think it can. But lines can surely be drawn around consent that is informed enough to pass muster. Agency s for the full spectrum of forces at work, yet still values consent. To be clear, sexual misrepresentation might be tortious 47 or even criminal.

Foregrounding agency, I will explain why before showing how impersonation is different. Whether we consent to sex under the circumstances presented depends on factors that are highly context-dependent and, to some extent, idiosyncratic. For Csex belongs in a long-term relationship; D could not disagree more. E wants sex only with a kind soul, F only with a professional success, G only with a committed environmentalist, H only with a non-felon and disease-free lover.

It might also result because the party wanting sex misle or conceals information that would, if known, lead to nonconsent. Interestingly, many are gendered. Consent was obtained; it cannot be discounted solely by virtue of its imperfection. Otherwise, in a world where sexual agency is constrained in all sorts of ways, there could be no valid consent.

Sex does not become rape because one of the consenting parties is incompletely informed, though we might decide that some conduct calculated to induce this uninformed consent is sufficiently reprehensible that it is properly criminalized. This is sex without consent.

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This is rape. I realize that this understanding of sex-by-deception also requires that lines be drawn. Suppose a woman seeking a long-term relationship consents to sex with a man who, unbeknownst to her, is married. I am willing to reject the claim that there was no valid consent here, and I maintain that the wrong to her is qualitatively different from what it would have been had she not consented at all.

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Giving meaning to consent acknowledges that agency can be exercised within degraded relationships, and even within relationships of unequal power. Otherwise, assertions of agency would be impossible. In any event, the prospect of line-drawing around rape—or, for that matter, around any kind of crime—is inescapable; the issue is how best to conceptualize the category. To my mind, inquiring whether a person chose sex 57 with this particular human being, and affording meaning to her decision, is most consistent with an understanding of women and men as sexual subjects.

When a person has been deceived as to which human being she is choosing sex with, what would be sex becomes rape. In this scenario, whatever consent was given was not directed to the one who actually engaged in the sex acts. Therefore, what actually occurred was unconsented-to sex. For all the reasons we have seen, this is a pronounced violation of the sexual agency norm. This reasoning suggests that the medical misrepresentation and spousal impersonation cases are rightly classified as rape. One court to expressly insist that identity matters is the Court of Military Appeals.

On appeal, the defendant argued that this evidence was insufficient to support a finding of nonconsent, since the victim was engaging in consensual intercourse with Sly at the time the defendant entered her. Traylor shows the importance of attending to the scope of consent. When we consent to sex with one individual, we are not consenting to sex with anybody else.

Controversy surrounding the force requirement is hardly new. The premise can be simply stated: sex without consent is rape regardless of the quantum of force, because disregarding consent vanquishes agency.

Affording legal meaning to consent is consonant with a view of women as sexual subjects. To the extent rape law requires extra force, even today, 68 it discounts the importance of sexual agency. How much force matters only because rape was, since its legal inception, defined as sex against the will and with surplus force. Rubenfeld creates new conceptual space for this vestige of traditional rape law. But the familiar place does not fully resemble what we know. Features of it are, or appear to be, novel. Even if I am wrong about this, the doctrinal implications of rape as a Forum sex United States of self-possession are at odds with sexual agency and its privileging of consent.

To highlight the differences between these two approaches, I will describe a set of cases where nonconsent and force are most likely to diverge. In future work, I expect to provide a more comprehensive of how these areas of law would look with sexual agency as a governing principle. For now, it is enough to identify the circumstances that tend to detach nonconsent and force. As a rule, nonconsensual sex that lacks excess physical force occurs within relationships, loosely defined.

Other force-substitutes are more tangible: they are sleep and intoxication. One view of these cases is that, because there is no force, there is no rape—even where there is no consent. If this view is Forum sex United States, and force beyond penetration is required, who comes upon the sleeping woman is irrelevant: regardless of her nonconsent, she cannot be raped.

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As is sex with someone who is passed-out drunk. Yet as I understand it, the right of self-possession may not be implicated in these scenarios. If rape is a violation of sexual agency, as I have argued, none of this makes sense. Sex with a nonconsenting sleeping woman is akin to sex with an object, not a subject; the woman is acted upon.

In the same way, a nonconsenting woman, because of intoxication, can be forced absent force to have sex. Today, women insist on the positivity of sexuality, or at least its potential. While social forces continue to construct sexuality in ways that warrant resistance, it can be said—emphatically—that expressions of sexual consent have meaning.

Traditional notions of autonomy tend to deemphasize a context of unequal power that is key to Forum sex United States these realities. Autonomy thus falls short of explaining both the promise and the perils of sex for women in particular. This leaves rape law vulnerable to remaking in a direction that s for neither the value of female sexual subjectivity, nor the harm that when it is denied. This leaves rape law prone to fetishizing force. Modern rape law demands new conceptual justification. Attending to sexual agency is, in my view, the way forward.

Rape is the negation of women as sexual subjects. With sexual subjectivity positioned as the alternative, the wrong of rape can be discerned in starkest relief. The law of rape can never perfect sexual agency; but the law can provide a remedy for its most egregious violations.

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