Abandoning Consent in Rape Law
I’ve been invited by a group of law students to hear Dean Michelle J. Anderson of CUNY Law School discuss her proposal to change the current models of rape law from the binary “yes” or “no”, to a more nuanced approach she calls “Negotiating Sex”. This absolutely feels like a move in the right direction, and I’m looking forward to meeting the Dean.
We’ll be a small group, so I can ask some questions. After reading the abstract below, I’ll start by questioning the term “negotiating”. A negotiation implies that one party gives something up perhaps unwillingly, or is asked to compromise. Maybe “navigating” would be more appropriate? Secondly, the gendered/hetero-normative language in the abstract is problematic and limiting, will this model be more inclusive? Any other questions you’d like me to bring forward?
Dean Anderson, “Negotiating Sex,” 78 S. Cal. L. Rev. 1401 (2005)
“Negotiating Sex” is a response to the two major proposals for rape law reform in legal scholarship today, as well as a proposal for a third way. Susan Estrich and Donald Dripps argue that sexual penetration should be legal unless the victim expresses her non-consent, a proposal I call the “No Model.” Stephen Schulhofer argues that sexual penetration should be illegal unless the defendant obtains affirmative consent for penetration through the victim’s words or conduct, a proposal I call the “Yes Model.” Under this model, according to Schulhofer, if a woman does not say “no,” and “her silence is combined with passionate kissing, hugging, and sexual touching,” one may “infer actual willingness” based on her nonverbal conduct.
Both the No and the Yes Models of rape law reform fail to account for important empirical realities. First, the lived experience of sexual trauma often includes physical paralysis and mental dissociation, which cut a victim off from her ability to object to penetration. Second, men often misinterpret women’s body language, seeing erotic innuendo and sexual intent where there is none, which impedes their ability to surmise consent accurately. Third, people often substitute sexual petting for penetration as a way to limit the health risks of sexually transmitted diseases and pregnancy posed by penetration. It makes no sense, therefore, to “infer” consent to penetration from “passionate kissing, hugging, and sexual touching.”
I propose that rape law abandon the notion of consent. In its place, the law should require negotiation – conversation and mutual agreement – between partners before sexual penetration occurs. Negotiation would require a communicative exchange about whether partners want to engage in sexual intercourse. The Negotiation Model requires communication that is verbal unless partners have established a context between them in which they may accurately assess one another’s nonverbal behavior. The verbal communication must be such as would indicate to a reasonable person that sexual penetration has been freely and explicitly agreed to.
What came out of this? Have you had the chance to talk?
I don’t have a problem with negotiation, since it doesn’t have to be adversarial or involve concessions. I’m not sure “navigation” adds anything.
Sadly, I was over booked and didn’t make it to the lecture. I’m hoping to do a screening at CUNY, or find a way to bring Dean Anderson into the conversation. Negotiating is crucial in that it implies clear communication and mutual decision making, I just always hear it as a give and take that’s not always exactly what you want. Perhaps I think of negotiating through the Middle East or Democratic Health Care Reform lens, where one party gets more than another, or someone has given something up to get something else, and isn’t always comfortable. Navigating is how we determine what we want, what we like, what our partner likes, and probably includes bumping around. Its not always smooth, and there are certainly no rules for it.