Women’s Sexual Agency and the Law of Rape in the 21st Century
Special Issue: Feminist Legal Theory
ISBN: 978-1-78560-783-7, eISBN: 978-1-78560-782-0
Publication date: 8 February 2016
Abstract
This paper evaluates the modern baseline presumption of nonconsent in sexual assault (rape) cases in light of different theories of sexuality (feminism on the one hand and sex positivism/queer theory on the other) and in light of how sexuality manifests itself in the lives of contemporary young women. The authors analyze social science literature on contemporary heterosexual practices such as sexting and hook-ups, as well as contemporary media imagery, to inform a contemporary understanding of the ways in which young people perceive and experience sex. Using this evidence as a foundation, the authors reconsider the ongoing utility of a baseline presumption of nonconsent in sexual assault cases. This paper demonstrates the complex relationship between women’s sexual autonomy, the contemporary culture’s encouragement of women’s celebration of their own sexual objectification and the persistence of high rates of unwanted sex. In the end, it demonstrates why a legal presumption against consent may neither reduce the rate of nonconsensual sex, nor raise the rate of reported rapes. At the same time, it shows how the presumption itself is unlikely to generate harmful consequences: if it deters anything, it likely deters unwanted sex, whether consented to or not.
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Acknowledgements
Acknowledgments
The authors would like to thank Susan Appleton, Maxine Eichner, Clare Huntington, Jane Schacter, Marc Spindelman, Stephanie Wildman, and Robin West for very helpful conversation and comments on previous drafts. This paper greatly benefited from conversations and insights contributed by participants at the December, 2013 gathering of authors from this symposium at Fordham Law School.
Citation
Baker, K.K. and Oberman, M. (2016), "Women’s Sexual Agency and the Law of Rape in the 21st Century", Special Issue: Feminist Legal Theory (Studies in Law, Politics, and Society, Vol. 69), Emerald Group Publishing Limited, Leeds, pp. 63-111. https://doi.org/10.1108/S1059-433720160000069003
Publisher
:Emerald Group Publishing Limited
Copyright © 2016 Emerald Group Publishing Limited