Communicative sexuality is most likely to be rewarding for both parties, allows them to promote each other's sensual ends non-manipulatively and non-paternalistically, and observes norms appropriate to friendship and trust. To consent to something is to reverse a prima facie supposition about what may and may not be done.
In most contexts, there is a standing presumption that one does not have access to and may not make use of another's body, property, personal information, or other elements of his or her personal domain. McGregor defends this idea, proposing that:.
They point out, for instance, that men have greater social and in most cases physical power than women and, relatedly, that women's beliefs and reactions are shaped by the constant threat of male violence with which women live Kerns Because of these differences, women and men often have divergent perceptions of interpersonal behavior Scheppele45 : for instance, behavior that men see as merely flirtatious may be experienced by women as offensive or even threatening, and women may see advances as physically intimidating that men see as aggressively amorous.
The continuing prevalence of such rape-supportive beliefs can render even well-intentioned prosecutors unwilling to pursue Lady seeking sex tonight Endeavor cases, given the likelihood that juries will refuse to convict. Many laws also include a force requirement, about which more below. MacKinnon also recommends the passage of new, sex-equality-based civil rights laws that sexual assault victims can use against their attackers. Women's sexual consent has in many instances been understood quite expansively, as simply the absence of refusal or resistance; feminists have criticized this approach on the grounds that, among its other untoward implications, it regards even unconscious women as consenting MacKinnon b, ; Archard A vital task on the feminist agenda has been to challenge and discredit such ideas—to deny that what a woman wears, where she goes and with whom, or what sexual choices she has made in the past have any relevance to whether she should be seen as having consented to sex on a particular occasion.
Achieving these goals has often involved arguing that certain kinds of encounters that have ly not been socially or legally recognized as rape should be so recognized—thus, challenging overly restrictive ideas often encoded in law about what counts as rape Burgess-Jackson; Sanday; Bevacqua Obvious examples include the abolition of marital-rape exemptions and the recognition of date and acquaintance rape.
Rape is committed overwhelmingly by men and boys, usually against women and girls, and sometimes against other men and boys. Feminists in many U. In addition to pressing for changes in law and in police and prosecutorial practices, feminists have founded and staffed rape crisis centers and hotlines to support victims, whether or not they choose to pursue charges against their attackers. She explains her approach as follows:.
Feminists differ, however, as to how rape laws should ideally be structured. As West observes, in such jurisdictions.
The negotiation model thus differs at least in spirit from even a version of the Yes Model that requires verbal consent, in that it emphasizes mutuality rather than a one-sided permission-seeking. Feminists are committed to ensuring that women's and girls' experiences of sexual violation are taken seriously as such, that the harm they suffer therein is recognized, and that those who inflict that harm are held able.
It has now been amply confirmed by research: according to one study of over 16, Americans, Of these women, Indeed, many women suffer multiple rapes in their lives: in the same earlier study, among those who reported having been raped in the past year, the average of rapes per woman during that time period was 2. Perhaps the most common view is that the force requirement should be eliminated, and rape defined simply as nonconsensual sex, with differing degrees of severity depending on whether and how much force and violence are employed Estrich While some state statutes are now written this way, they often build physical force into the definition of non-consent; thus in practice they function very much like the dual requirement of force and non-consent Anderson a, Another alternative is to eliminate the nonconsent requirement, defining rape simply as forced sex.
Just what that state of mind is—what counts as mens rea in cases of rape—is a matter of some dispute Burgess-Jackson— The most conservative position—defended most famously in the DPP v Morgan decision Baron—holds that a man has mens rea only if he believes the woman is not consenting or that she is at least probably not consenting. For this reason, again contrary to stereotype, most rapes are intraracial. On this view, Lady seeking sex tonight Endeavor man who sincerely believes that the woman is consenting is not guilty of rape, no matter how unreasonable his belief may be under the circumstances.
A raped woman or girl was less valuable as property, and penalties for rape often involved fines or other compensation paid to her husband or father Burgess-Jackson The marital rape exemption in law, which survived in the U. A further corollary of this view was that women who were not the private property of any individual man—for instance, prostitutes—were unrapeable, or at least that no one important was harmed by their rape Dworkin—, Burgess-Jackson, Feminists' recognition of the severity and pervasiveness of rape's harms, and of how infrequently victims receive justice, has inspired decades of activism for social and legal change.
This presumption is reversed, however, when and for as long as the other consents to such access. An added advantage of a performative is that it suggests that sexual consent is not a woman's implied default state, but rather must be actively and affirmatively granted. Archard argues forcefully against this view, however, pointing out that any such conventions are likely to be ambiguous and not universally understood particularly since research shows that men routinely interpret women's behavior in more sexual terms than women mean or intendthat a man risks doing serious harm by relying on his beliefs about such conventions, and that there is a ready alternative to risking such harm, namely, inquiring explicitly as to his partner's consent or lack thereof.
According to the No Model, a sexual act is consensual unless the victim says no or resists physically. There are varying feminist views about whether and how the concept of rape, and hence its framing in the law, requires further renegotiation or expansion.
Assuming for the moment that, in sexual encounters, rape exists where consent is lacking, the question then becomes what counts as consent. One limitation of a purely performative of consent is that it does not take into the context in which the relevant behavior or utterance occurs.
The question is what other contextual constraints and pressures may also undermine the validity of a woman's apparent consent.
In the study of over 16, Americans mentioned above, Remarkably few assailants are punished: with estimated U. Perhaps the most basic challenge that feminists have posed to traditional views of rape lies in the recognition of rape as a crime against the victim herself. More radical views, in contrast, contend that rape must be recognized and understood as an important pillar of patriarchy. No doubt both the wrong and the harm of rape are complex and multifarious; these interpretive frames suggest emphases that may be illuminating in different contexts and for different purposes.
Consent in general may be understood as either attitudinal or performative Kazan Because the kinds of behaviors mentioned above such as wearing revealing clothes, going somewhere alone with a man, or engaging in heavy petting have often been claimed by perpetrators to constitute evidence that a woman was in a mental state of willingness to have intercourse, feminists have often rejected attitudinal s in favor of performative ones; with a performativein contrast, a defendant can be challenged to articulate exactly what the woman said or did that constituted her consent to intercourse.
Proponents of this approach believe that a gender-neutral standard of reasonableness is impossible given the differences between men's and women's social positioning. Feminists differ, however, about how the crime of rape is best understood, and about how rape should be combated both legally and socially. Opponents of the reasonable woman standard contend that it is both possible and desirable to for common differences between men's and women's physiologies, social experiences, and perceptions without importing gender into the definition of reasonableness itself.
According to the Yes Model, a sexual act is rape unless consent is affirmatively granted by verbal or physical behavior. Theorists have different views about the conditions under which it is reasonable for a man to believe that a woman is consenting to sexual intercourse.
Feminist theorists have often sought to articulate a more richly textured sense of rape's wrongness, and of its distinctive harms, than the law alone can provide. Finally, some feminists have argued that rape should be a strict liability offense, that is, one with no mens rea requirement at all. Feminist thought and activism have challenged the myth that rape is rare and exceptional, showing that it is in fact a common experience in the lives of girls and women.
This approach has the advantage of focusing on what the perpetrator did, rather than on how the victim responded that is, on whether her behavior constituted, or could reasonably have been seen by the perpetrator as constituting, consent. Both social and legal understandings of rape are typically based at least partly on the notion of consent. Recent scholarship includes some novel approaches to the legal definition of rape. Cases of nonconsensual but unforced sex, on the other hand, include those in which the victim is induced to have sex through fraudulent misrepresentation for instance, a doctor telling her that sex with him is necessary for her cureand those in which she is coerced through nonviolent means for instance, a professor telling her that she must have sex with him to pass the course.
Most feminists see the dual requirement of force and nonconsent as redundant at best and, at worst, as defining many rapes out of existence. This assumption, Anderson emphasizes, is not only often untrue but, in the age of AIDS, especially dangerous.
Thus, in jurisdictions where this understanding of mens rea is in force, the question of whether the woman actually consented often gives way—particularly in cases of date and acquaintance rape—to the question of whether the man reasonably believed she consented. Virtually all feminists agree that rape is a grave wrong, one too often ignored, mischaracterized, and legitimized.
While such rapes do occur, the great majority of rapes are committed by a man or men known to the victim: dates, relatives, friends, bosses, husbands, neighbors, co-workers, and more. Third, the focus on group-based oppression has also led many radical feminist thinkers to examine the role of rape itself, and of ideologies about rape, in creating and reproducing not only patriarchy but multiple systems of domination, including racism and colonialism. Finally, both models in practice tend to assume that a woman's willing participation in non-penetrative sexual activity is a reliable indicator of her consent to penetration for instance, Anderson points out that according to Schulhofer, an advocate of the Yes Model, a woman's engaging in heavy sexual petting typically indicates her affirmative willingness to have intercourse.
Feminist views of rape can be understood as arrayed on a continuum from liberal to radical. This requirement of consultation before penetration distinguishes Anderson's approach from Pineau's, despite their shared emphasis on communication; in addition, Pineau's model retains an overall consent standard whereas Anderson abandons that standard. Furthermore, both the No and Yes models rely heavily on men's ability to interpret women's nonverbal behavior, despite strong evidence showing that men routinely fail in this endeavor: the No Model, for instance, allows a man to infer consent from a woman's silence and lack of physical resistance.
For the most part, this entry will assume male perpetrators and female victims. In short, if a man does not engage in communicative sexuality, then he does not really know whether his partner is consenting; thus, if he nonetheless believes that she is consenting, then that belief is unreasonable. First, they regard the deprivation of women's bodily sovereignty—in particular, male control over the sexual and reproductive uses of women's bodies—as a central Lady seeking sex tonight Endeavor element of patriarchy Whisnant As a result, they analyze rape as one of multiple forms of men's sexual violence and exploitation, looking at their interconnections and how they work in concert to maintain and reinforce women's oppression.
Johnson defines patriarchy as a social system in which men disproportionately occupy positions of power and authority, central norms and values are associated with manhood and masculinity which in turn are defined in terms of dominance and controland men are the primary focus of attention in most cultural spaces Radical feminists see rape as arising from patriarchal constructions of gender and sexuality within the context of broader systems of male power, and emphasize the harm that rape does to women as a group. Often contributing to the underestimation of rape's frequency is a narrow and stereotypical conception of what rape is: for instance, the image of a stranger jumping out from behind the bushes, brandishing a weapon at a woman he has never seen before.
It bears noting that successful rape prosecutions depend not only on how rape is legally defined but, at least equally importantly, on the general public's willingness to believe women's testimony rather than seeing them as lying or confused and to recognize particular encounters as instances of the applicable legal definition that is, to see this behavior as force, or this utterance as expressing nonconsent. The negotiation model is gender-neutral, requiring that any person who initiates sexual penetration consult verbally with his or her partner of either gender to come to a mutual understanding of whether both parties want penetration to occur.
There are many kinds of explicit and implicit threats that render a woman's consent to sex less than meaningful: the man may threaten to Lady seeking sex tonight Endeavor for custody of their children, to derail her green card application, to evict her, or simply to sulk and make her life miserable for days should she refuse to have sex. Which if any such nonviolent coercive pressures should be regarded as rape, either morally or legally, is a matter of some controversy Schulhofer ; Burgess-Jackson Viewing at least certain kinds of nonviolent coercive pressures as incompatible with meaningful consent may yield the conclusion that some quid pro quo sexual harassment is also rape Falk In the most general terms, a mens rea requirement means that the prosecution must show not only that nonconsensual sex occurred, but also that the man was in a certain state of mind with regard to the woman's lack of consent.
In addition, radical feminist approaches to rape often share one or more of the following three features. An accurate estimate of rape's frequency requires a clear understanding of rape itself and of the varied circumstances in which it occurs.
Virtually all feminist thinking about rape shares several underlying themes. Some commentators have observed that developing such a lesser offense may aid in winning convictions, as juries are reluctant to convict nonviolent offenders of rape. Unless and until a relational context has been established that enables partners to interpret reliably each other's nonverbal behavior, the negotiation must be verbal.
In many jurisdictions, the law defines the crime of rape as comprising two separate elements: force and lack of consent. A more moderate view is that a man has mens rea if he either believes the woman is not consenting or believes unreasonably that she is consenting. Pineau believes that this model is the backdrop against which many people base their judgments about reasonable belief in rape cases.
Consent thus alters the structure of rights and obligations between two or more parties. A third approach is to separate the two elements into two separate crimes, one based on the use of force and the other on the lack of consent.