Sex, Law and Consent

Georgetown University Law Center

Scholarship @ GEORGETOWN LAW

2008

Robin West

Georgetown University Law Center, west@law.georgetown.edu

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GEORGETOWN LAW

Faculty Working Papers

July 2008

Sex, Law and Consent

THE ETHICS OF CONSENT: THEORY AND PRACTICE

(Alan Wertheimer & William Miller eds. forthcoming)

Robin West

Professor of Law

Georgetown Law

[email protected]

This paper can be downloaded without charge from:

BePress: http://lsr.nellco.org/georgetown/fwps/papers/71/

SSRN: http://ssrn.com/abstract=1172162

Posted with permission of the author

Sex, Law and Consent

Robin West

Liberal legal theory primarily, and liberal feminist legal theory derivatively,

have jointly shaped much of our contemporary understanding of the various relations

between sex and law. At the heart of that familiar liberal legalist paradigm is the

distinction between consensual and non-consensual sex. That distinction serves two

central purposes. First, the absence or presence of consent demarcates, broadly and

imperfectly, sex that should be regarded as criminal from that which should not. Non-

consensual sex, generally, ought to be regarded as rape, or, if not rape, as a lesser but still

quite serious sexual assault.

To whatever degree, and it is still considerable, the law fails

to criminalize non-consensual sex, to that degree, according to liberal legal theorists and

reformers, the law should be criticized and changed. So for example, not only forcible,

violent sex between strangers, but also (liberals argue) non-consensual but non-violent

sex between dates or cohabitants, non-consensual marital sex, sex coerced through

particularly egregious fraud, sex imposed upon unconscious, intoxicated or mentally

incapacitated victims, and sex coerced through implied threats of future violence, or of a

nonviolent violation of rights -- all of this sex should be understood as some degree of

criminal sexual assault, regardless of whether or not the sex is accompanied by force,

regardless of whether or not the woman resisted, and – at least for some liberal reformers

-- regardless of whether or not she verbally expressed her non-consent. Liberal feminists

from Harriet Taylor and John S. Mill

from the nineteenth century to Susan Estridge,

Michelle Anderson and Stephen Shulhofer of the twentieth and twenty-first

have

generally pressed for broader definitions of rape and sexual assault, and broader

enforcement of existing laws so as to bring the law on the streets and in the bedrooms in

line with this basic moral claim: non-consensual sex is wrong in all circumstances, and so

wrong as to be properly regarded as a serious crime.

The second purpose, implicit rather than explicit, served by the distinction

between consensual and non-consensual sex, within liberal legalism, is rhetorical rather

than legal, and might best be called that of “legitimation.” Liberal legal scholars

typically, if not invariably, urge that consensual sex not only should not be criminal, but

that legal regulation of any sort, including the imposition of civil sanctions, and perhaps

non-legal community disapprobation or political critique likewise, is uncalled for. We

should loosen, or liberalize, and perhaps entirely prohibit, unduly moralistic regulatory

control of all consensual sex, whatever the source of the regulation, and whatever the

target. Thus, over the last thirty years, liberal scholars and reformers have argued that

the production and consumption of pornography should be insulated against regulation,

so long as all sexual acts required for its production (and consumption) were consensual

;

that obscenity regulations premised on offense to community morality should be likewise

eliminated entirely or severely cut back,

that prostitution should be de-criminalized and

if regulated at all only toward the end of protecting the health of participants,

that

consensual sex between partners of the same gender should be constitutionally protected

against state regulation,

that the availability of the right to marry should not depend in

any way on the sexuality, the gender, or the sexual practices of would-be participants,

that contraception and abortion should be freely and fully available, and the right to

obtain them should be constitutionally protected against regulation,

and that sexual

harassment laws should be read narrowly so as to protect consensual sex and sexual

speech in workplaces and in schools.

Consensual sex, perhaps quintessentially for

contemporary liberal legalists, wherever it happens, and whatever its form, and whatever

the motivation -- whether it be in cars, bordellos or on screen sets, between persons of the

same sex, opposite sex, or no discernible sex, whether it be anal, oral, vaginal,

missionary, marital, non-marital, vanilla, non-vanilla, sado-masochistic, or something

other, whether it be for pleasure, for reproduction, for money, for status, for friendship, or

for the approval of one’s peers -- should be deregulated. It ought to be left alone: by

law, by the community, by various would-be moral censors, and by politically motivated

interrogators.

Arguments for de-regulation of consensual sex vary, depending upon different

strands of liberalism, but all, in some way, rest on the legitimating function of consent to

sex. Within libertarian legal theory, the point is familiarly put in terms of victimless

crimes and undue state paternalism: if two or more parties consent to sex, then the sex is

victimless, and therefore any state regulation – whether criminal or civil -- would be

paternalistic and unwarranted.

For more traditional Millian liberals, the reason has

more to do with individual autonomy, or identity, than with the dangers of state

regulation: the sexual activity to which we consent is akin to expression, and is central to

one’s conception of the good life; to interfere with it is to interfere with an important

dimension of individual autonomy.

From the sometimes aligned normative law-and-

economics camp, the claim is more sweeping: assuming no third party effects, and

assuming competent parties, any consensual sexual transaction – sex for money, sex for

pleasure, sex for a favor, sex for protection, sex for shelter, and so on – as is true of any

non-sexual consensual transaction, is presumptively of positive value to both parties – if

it weren’t, why would they consent to it?

And, if it is presumptively of positive value

to both parties, and no one else is hurt, then it is value-, wealth- or efficiency-

maximizing. Liberal feminists add a feminist twist to all three arguments: denial of the

worth of consensual sex has often been accompanied by and sometimes been motivated

by a vitriolic denial of the equal worth of women’s sexuality and capacity for sexual

pleasure.

Thus, consent to sex renders the sex that follows victimless, central to autonomy

and identity, of positive economic value, and emblematic of the equal worth of she who

gives it. The arguments converge, though, on a common conclusion: consensual sex,

because it is consensual, ought to be not only non-criminal but also shielded from legal

regulation, and moral or political critique. To regulate consensual sex acts, or render

them the object of civil sanctions or even community disapproval is at best undue state or

community intervention -- overly paternalistic, voyeuristic, nanny-state-ish, inefficient,

moralistic, or just unnecessary – and at worst, disruptive of the creation of value,

autonomy-sapping, identity-robbing, equality-compromising and virtually by definition

coercive. Consent legitimates the sex that follows; the effect of which is to insulate it

from not just criminalization, but more broadly, from legal regulation likewise.

The liberal (and liberal feminist) reliance on consent as demarcating the

distinction between sex and rape has attracted a good bit of critique, not only from

defenders of more traditional and more restrictive definitions of rape (that require, in

addition to or instead of lack of consent, the use of force by the perpetrator and resistance

from the victim, and still impose numerous restraints on the criminality of marital sex)

but also from radical strands of feminism, and more recently, from queer theory. The

broadly legitimating role consent plays within liberal understandings of sex and law has

not attracted nearly as much critical attention, either from feminists, queer theorists or

liberals themselves. In the bulk of this piece I would like to suggest some reasons why it

might be worth our while to reverse this trend. Consent works relatively well, I will

argue, as the demarcation of non-criminal from criminal sex; or at least, radical feminist

and queer theoretic arguments against it are unconvincing. By contrast, the political and

moral legitimation of wide swaths of sexual behavior that is affected by the liberal

deregulatory projects, more or less given a pass by liberalism’s leftwing and feminist

critics, has quite real and relatively unreckoned costs.

One such cost – and the only one I will elaborate in this essay -- is that here as in

other spheres of life legitimation effectively renders invisible – and in some versions of

liberalism, even incoherent -- what may be significant harms caused by the conduct so

legitimated. More specifically, I will argue that consensual sex, when it is unwanted and

unwelcome, often carries harms to the personhood, autonomy, integrity and identity of

the person who consents to it – and that these harms are unreckoned by law and more or

less unnoticed by the rest of us. The possibility that the liberal valorization of consensual

sex that is so central to liberal de-regulatory projects legitimates these harms ought to

concern us far more than it has, at least to date. That doesn’t mean we should seek to

broaden the definitions of either sex crimes or the contours of private law so as to punish

or compensate for a wider range of conduct. I do not think we should or could. We do

though need a better understanding of the relation between our understanding of what is

criminal or tortious behavior and why – and what that does, or doesn’t, imply about the

value, worth, and pleasures of our non-criminal sexual behaviors.

The chapter is organized as follows. As noted, the first part of this four part

chapter argues briefly that both the (relatively new) queer theoretic and the (getting on

now) radical feminist arguments against the liberal reliance on consent as the

demarcation between rape and sex are misguided. They both fail to grapple with the

distinctive harms that come from a sexual perpetrator overriding the will of a weaker

partner, although they do so for opposite reasons and with drastically different

consequences. The remainder of the chapter concerns the legitimating role of consent in

liberal conceptions of law and sex. In part two, I will describe, or at least delineate one

specific type of harm – the harm caused by unwanted and unwelcome but nevertheless

fully consensual sex -- that the legitimation of consensual sex has the consequence of

denying or at best obfuscating, and argue why those harms are important, even if they are

not and should not be the target of criminal sanction. In the third part I will try briefly to

account for our relative failures to better understand them. Specifically, I will explore

some of the reasons they have generally escaped the notice not only of liberal legalists

concerned with rape and rape law reform, but also of liberalism’s critics, primarily

radical feminists and queer theorists. Finally in the conclusion I will suggest that those

are not good reasons, and that we – meaning legal theorists, and not only moral or

political philosophers -- should focus more than we do on consensual sexual harms and

their relation to law, in the intimate sphere, no less than we do in our political and

economic lives.

A. Consent and Rape

As is fairly well known, beginning in the 1980s, radical feminists in law and

outside of law, but most forcefully Catherine MacKinnon, have argued in various ways

that the sharp line drawn by liberals between consensual and non-consensual sex falsifies

the degree of coercion imposed upon women by men in our ordinary sexual lives.

That

which is perceived as consensual sex, according to this now familiar radical feminist

critique, is more often than widely believed the result of coercive forces, ranging from

believable threats of future violence, to social or economic pressures, to a ubiquitous

sexualized and pornographic culture that only somewhat paradoxically forces women and

girls to consensually give it up, and all the better if they do so desirously. Echoing

Marx’s parallel accounting of the role of consensuality in labor relations,

MacKinnon

and other radical feminists argued that in the sexual sphere no less than in the economic,

“consent” is not a meaningful marker between autonomy and coercion. Thus, radical

feminism tended to conflate consensual and non-consensual sex, finding all of it the

product of coercion.

Radical feminist critiques of consent and of rape law have garnered an enormous

response, both from liberals, and from liberal feminists, the former arguing that the

radical position, if codified in law, would over-criminalize non-violent and sometimes

only reckless or negligent behavior, and the latter, that the radical position (whether or

not reflected in law) denies women’s “agentic” power, feeds pernicious stereotypes of

women incapable of saying no to unwanted sex, and implicitly, and wrongly, assumes

women’s strong aversion to sex generally.

I am not going to pursue those arguments

here (I have elsewhere).

I want to focus instead on what I think is a problematic feature

of the radical feminist critique of the liberal paradigm that for various reasons has not

been much addressed, either by liberals or liberal feminist theorists, to wit, that the

radical feminist critique of rape law denies the distinctiveness of the experience of non-

consensual sex, and hence, the distinctiveness of its harms. Even if we assume, that is,

that there is a good deal of coercion in the background conditions that produce consent to

sex (just as there is a good deal of coercion operating in the background conditions that

produce consent to alienating labor, or consent to bad governance) it doesn’t follow that

consensual and non-consensual sex are in all ways the same, or that the “coercion” is or

feels qualitatively similar, or that the harms they occasion are not different. Thus, there is

a quite real felt difference between those coercive forces that elicit consent – no matter

how bad the bargain struck – and the coercive force employed by an actor who overrides

or ignores the lack of consent. It is not necessarily a difference in the degree of

harmfulness – as I will argue below, the former might be in the long run be more

damaging and to more people, than the latter. It is, though, a difference in qualitative

experience, and there are real costs involved in conflating them.

Being burgled in one’s home, or robbed on the street, feels different than being

exploited by an unscrupulous employer in an unequal and capitalist economy.

Robberies occasion a fear that one will be killed – that one’s existence, and not just one’s

dignity, will be obliterated. It is traumatic and frightening in a way that exploitation is

not. It is a departure from the normal course of life, which, however exploitative the

conditions of one’s life might be, does not include a constant fear that one will be killed

in the next few seconds. It is upsetting for just that reason, in a way that exploitation is

not – exploitation, after all, may well be the norm against which the trauma of a robbery

stands in relief. That does not make the robbery, all things considered, worse than

economic exploitation: exploitation in an underpaid and alienating job through the course

of adulthood might well be far more damaging than having been the victim of a one-time

robbery, in the long run. Certainly, exploitation is more insidious, more invisible, and

more easily masked – it’s harder to name and blame both the harm and the perpetrator.

Constant workplace exploitation may also be, in the long run, more important politically

than occasional robberies: the very phenomenon of private sphere economic exploitation

unchecked and largely unregulated by an unconcerned state, suggests the existence of an

unjust community, an unjust social structure, and an unjust legal regime, while the

robbery or burglary suggests aberrant behavior, against which both the interests of that

unjust legal regime and its exploited citizens are jointly aligned. A trauma, once

identified, can be recovered from, and both the state and the citizen have stake in seeing

that they don’t happen – that they are both deterred and compensated. An unjust social

order -- maybe not.

The same is true of sex. Heterosexuality may well be compulsory in all the ways

argued by Adrienne Rich in her classic mid-seventies essay

: girls are given no or little

choice but to enter the world of heterosexuality, the culture willy-nilly propels all of us

toward early heterosexual intercourse, (social conservative resistance notwithstanding),

men and boys feel an entitlement while women and girls feel an imperative to participate,

all of this is reinforced explicitly by a constant stream of cyber and real-space

pornography, and then underscored, rather than meaningfully challenged, by mainstream

religion traditions, that may quibble over the timing and circumstances of the

compulsion, but hardly over the central command: while pornography pushes girls and

women to submit to sex across the board, religious tradition dictates that women should

become wives, who then must and should submit to their husbands’ sexual demands,

virtually world over and for most of recorded history. That’s a lot of coercion. If there’s

any truth at all to this account, then it’s sensible enough to say that what that coercion

produces is an awful lot of consent to an awful lot of dreadful sex; I’ll argue as much

explicitly in the next section.

Forcible rape, however, is “coercive” in an entirely different way. The physical

invasion of the self and body, the interruption and denial of sovereignty over one’s

physical boundaries that the invasion entails, the fear of death foremost in the mind of the

victim, the sure knowledge that one’s will is irrelevant, the immediate and total reduction

of one’s self to an inanimate being for use by another, and the sustenance of multiple

injuries, both vaginal and non-vaginal, internal and external -- all of this, simultaneously

experienced, typify – constitute -- the experience. The experience of the compulsion of

which Adrienne Rich spoke might share in some of these features, but the contrasts

swamp the shared point of contact. The compulsion in “compulsory heterosexuality”

creates constricted identities, and expectations, and certainly social roles, all of which in

turn might elicit consent to sex. The latter – the coercion used by a rapist at knifepoint,

gunpoint, or with overpowering threats of force -- overrides the lack of it. The sex that

results from compulsory heterosexuality, whatever else it is, is consensual, as we

normally use the term and certainly as the law understands it. The sex that results from

the coercive wielding of knives, fists and guns is rape. Again, this doesn’t mean the

latter is “worse” than the former: compulsory heterosexuality might do more widespread

and longer-lasting damage both in the individual case and in the aggregate than rape, in

the same way that economic exploitation might do more widespread and longer lasting

damage, and to more people, than theft. Compulsory heterosexuality that elicits consent

to unwanted sex over a lifetime undermines an individual’s self-sovereignty even as an

ideal, while the traumatic experience of rape might ultimately underscore, for the victim,

the importance of both autonomy and self-sovereignty as essential for a well-led life. In

the aggregate, compulsory heterosexuality is certainly more pervasive, harder to name

and blame, more insidious, and so on. Further, as with economic exploitation, the state

has little interest in deterring it, addressing it, or even noticing “compulsory

heterosexuality”: whether or not it does so, depends on other state interests entirely – in

eugenics, or population control, family policy, or the various sorts of bio-projects of

which Foucault spoke and wrote. It is not central to the raison d’etre of the state, to deter

compulsory heterosexual intercourse – to deter the conditions that prompt consent to sex.

The state has a direct interest, however, in the criminalization of violent rape.

They are, simply, different. Why conflate them? There is not much to be gained

by doing so, and I think there is quite a bit to be lost. Let me note two such costs. The

first is to the success and even coherence of liberal rape law reform movements. The

claim that current definitions of rape under-criminalize, and that a good bit of non-

consensual sex ought to be but currently isn’t criminal, and that there is more ordinary

rape in the world than most realize or care to admit, is the basis of an important and

largely liberal reform agenda. That agenda is not furthered, it is undercut, when it is

confused with the claim that rape is ubiquitous. If rape is ubiquitous, the claim that there

exists a class of under-criminalized non-consensual sex that ought to be criminalized

becomes trivially true, but inconsequential, if it is viewed as part and parcel of a political

view that can’t possibly be the basis of a serious reform of the criminal code. If all sex is

literally rape, there is no norm against which to define the wrong the Code is designed to

target.

It is clear now, and it was certainly clear to many of us at the time, that it was

never the intention of theorists, particularly Catherine MacKinnon, to expand the criminal

code so as to include and prosecute as “rape” all sex, or all heterosexual sex – and

MacKinnon is right to insist that she never said as much.

Nevertheless, it is also clear

that the claim was heard in this way. One reason it was so heard, is that the claim was

made, and often, that the experience of women who are rape victims, conventionally

described, and of women having consensual sex within a patriarchal regime, is more

similar than dissimilar, and that they are so by virtue of the coerciveness of both.

It is

that claim, I believe, which not only mis-describes the experience of both. If understood

as a call to criminalize far more sex than is envisioned by even the most far-reaching of

the reforms of liberal feminist rape activists, it undercuts rather than bolsters liberal rape

reform projects.

The second cost of the conflation of compulsory heterosexuality and coercive sex

is less immediately felt, but may be more consequential. The rhetorical conflation of the

compulsion that sometimes produces consent to heterosexual sex, and hence produces

some consensual sex, with the coercion that produces rape, overstates the role of rape in

the perpetuation of patriarchic hierarchies. Rape, understood either conventionally (as

forced sex, with utmost resistance by the victim, imposed on someone other than one’s

wife) or as liberals would re-define it (as non-consensual sex), is an aberrational act that

violates sovereign interests in social and public stability as well as women’s interest in

physical security. The state prosecutes it when it can. By contrast, the sex that results

from consent that is given within social structures that embed gendered inequality –

consensual sex, where the consent is elicited in part through societal compulsion – is, at

least arguably, ubiquitous. If we define the latter as “rape,” then rape is indeed central to

patriarchal control of women by men, and the struggle against “rape” so understood, is

likewise central to ending it. But there is a danger in putting the point this way. If we

reference, either intentionally or not, the conventional, criminal-code definition of “rape”

to describe the phenomenon of “compulsory heterosexuality,” because coercion is central

to both, then we invite the mistaken conclusion that promoting greater enforcement and

prosecution of rape crimes, as understood by the state, will end patriarchy.

But this conclusion is just not warranted, and not simply because the sex

described by the inclusive definition of “rape” above, is not what the state will prosecute,

no matter what the definition of rape. It isn’t warranted, more fundamentally, because

the compulsory conditions that elicit consent to unwanted sex might be more central to

those obnoxious regimes than the knives and fists employed by rapists to override their

victims’ will. Even if it is true, as MacKinnon begins her most important book, that

“sexuality is to feminism what work is to Marxism: that which is most one’s own and

most taken away,”

then the conflation of rape and consensual sex seems all the more

particularly ill-advised: wiping out all theft, through a more aggressive use of the

criminal law, will not return their alienated work to laborers, and likewise, ending rape,

through a more aggressive use of the criminal law, will not fundamentally return sex to

women. Economic exploitation of laborers is not the result of a state’s under-

enforcement of laws against theft, and likewise, sexual exploitation is not the result of the

state’s under-enforcement of laws against rape. By conflating the problem of exploitative

and expropriated sexuality with the problem of rape, we engage not only in conceptual

confusion, but strategic misdirection. Much of third wave feminism – the Take Back the

Night rallies, self defense and anti-rape education initiatives on high school and college

campuses – although arguably vital to ensuring women’s safety on the street, might be

over-sold as a means to ensuring women’s equality, and an end to their sexual

exploitation. We do need to address the conditions, states of mind, and social structures

that so overwhelmingly prompt, suggest, or compel women to consent to sex they don’t

desire or want: that is the deepest, most vital, and profoundly historic claim at the heart

of MacKinnon’s re-construction of radical feminism. That sex, however, is not rape, and

we don’t come any closer to addressing it by calling it what it is not.

Let me turn to the very different – in fact, quite opposite – objections to liberal

understandings of rape, and the role of consent within it, put forward more recently by

queer theorists. The queer theoretic critique of the liberal reliance on consent as the

demarcation between sex and rape is not that by so doing liberals under-state the amount

of wrongful sex in the world. Rather, the worry is that by so doing, they over-state it:

they are led to over-regulate, condemn, or punish what ought to be non-criminal and de-

regulated sexual conduct. Thus, and in a modern echo of a very old argument – that rape

is too easily alleged, too difficult to disprove -- queer theorist Janet Halley has argued

over the last half decade that in a culture such as ours that is overtly hostile to sexual

variation and unduly hostile to sex itself, claims of non-consensual sex – claims of rape –

are often the product of a “sex panic,” rather than an actual assault.

The claim that

some particular sexual encounter is “rape” masks the likely truth of the matter, which is

that the sex was in fact both desired by, but also abhorred by, the complainant. The

“victim” calls the sex a “rape,” so as to negate any possible suggestion that she may have

enjoyed it. Non-consent is an unreliable marker of rape from non-rape, then, simply

because in a sex-phobic culture it is too often falsely claimed. Somewhat more broadly,

Michel Foucault argued toward the end of his life, that even a child’s lack of consent to

sex ought neither to be presumed, nor should an affirmative declaration of consent be

even required, so long as the child does not actively resist the adult’s sexual advance.

Presumably, if even a child’s lack of express consent should not trigger an accusation of

rape, the same should hold with respect to adult women. In the context of United States

understandings of rape, then, it is not unfair to infer that Foucault implicitly advocated a

return to a “perpetrator’s force plus victim-resistance” – rather than lack of consent –

definition of actionable rape. Lastly and most sweepingly, Law Professor David

Kennedy suggested in the wake of the Lewinsky-Clinton scandals from the 1990s that in

the world of sexuality (perhaps unlike elsewhere) such liberal banalites as “consent,”

choice, and autonomy are all just not as important as we have believed.

Non-

consensual sex, in this telling, like sado-masochistic sex or sex within hierarchies, is

simply another form of unconstrained sex, and unconstrained sex – whether non-

consensual, sado-masochistic, hierarchic, or thoroughly vanilla -- is of such great

hedonic value – that it simply should not be sacrificed to legal niceties. We should, in

effect, quit fetishizing consent. Sex, and more particularly the sexualized, eroticized

power that drives it, is good, not to be lightly tossed aside. We don’t need consent to

police it.

To generalize: all three of these theorists share a deeply positive stance toward

all forms of sexual expression, including those often abhorred as aberrant, those often

mistakenly viewed as coercive or non-consensual, and those (such as sado-masochism)

that overtly or covertly employ, require, celebrate, or revel in the hedonic uses of power,

a deeply skeptical stance toward claims of both self-identified victims, and adults

speaking on behalf of children, that the sex imposed by a stronger party on a weaker

party was unwanted, unwelcome, undesired, and not enjoyed – and certainly that it

should ever be presumed to be such, and a belief that the harms of truly non-consensual

sex are not particularly grave. They all accordingly share a skeptical stance toward

sexual regulation, and a skeptical stance toward “consent” as the marker of much of

anything. Hot, transgressive sex, particularly sado-masochistic transgressive sex, has all

the markings of non-consensuality. From there, it’s a short step to the conclusion that

perhaps non-consensual sex itself is an over-rated harm, and a too-often prosecuted

crime. This is the view I’m labeling, I hope not unfairly, as “queer theoretic.”

The queer theoretic critique of the role of consent as the marker of illegality has

attracted some feminist response (although not much of a liberal one): to summarize what

will no doubt be a growing cottage industry, the idea of a “sex panic” motivating false

rape claims might be little but an urban myth, the proposed deregulation of sex crimes

and the trivialization of sexual injury on which it rests threaten second and third wave

feminist gains, and the denial of the importance of consent and choice to our assessment

of the relative costs and benefits of laws governing sexuality simply ignores women’s

and gay men’s experiences of rape, which have not been transgressively ecstatic.

Here

again, though, I want to focus on a different problem with the queer critique, and one

which it shares with radical feminism, for all its dramatic and much proclaimed

oppositional stance to that movement. The queer theoretic critique, like the feminist, also

obscures the distinction between consensual and non-consensual sex, and like the radical

feminist argument it attacks, it does so by ignoring the experience of victims, and

focusing instead on the power inherent in both consensual and non-consensual sex. The

difference between radical feminism and queer theory – and it is indeed a dramatic one --

is that queer theorists do this not toward the end of asserting the wrongness and ubiquity

of oppressively sexualized power regardless of consent or its lack, but rather, toward the

end of asserting, and then valorizing, the ubiquitous transgressiveness of sexualized

power – and therefore its value. But the shared ground is considerable. Like feminists,

the queer critic sees in all sex – both consensual and non-consensual -- the presence of a

power imbalance – although this time to applaud the power imbalance rather than

condemn it. As the radical feminist conflates consensual sex with sex infused with

power, so as to condemn it all, so the queer theorist conflates non-consensual sex

likewise with sex infused with power – so as to affirm it all.

This parallelism is much noted (and lauded) by queer theorists themselves.

Not

so noted, though, is the flimsiness of the shared premise: just as there is nothing to sustain

the radical feminist identification of a power imbalance between parties with a lack of

consent, and therefore sex with rape, here likewise, there’s nothing to sustain the lack of

consent that might define rape with the power imbalance that might define hot and

desired sex. Even if it is true, in other words, that sex (to many, obviously not all, but not

an insignificant number either) is pleasurable, ecstatic and transgressive precisely

because of the power – and power imbalances -- that infuse it, it doesn’t follow that non-

consensuality likewise is inconsequential or pleasurable, just because it too involves an

imbalance of power. A rape victim is not a bottom. The experiences aren’t comparable.

Sado-masochistic sex is not rape, regardless of the presence of handcuffs, rope, chains

and the like in the former and the lack of all that in the latter. The affirmation of the

transgressive pleasures of sado-masochism does not imply that we give rape a pass –

unless we just blithely ignore these differences.

Put more generally, a benign, desired, and consensual power imbalance in a

sexual relationship is not the same thing as the coercion in a non-consensual rape,

anymore than a non-benign power imbalance between actors in a consensual but

hierarchic relationship is coercive, and therefore rape. Neither hot, desired, transgressive

sado-masochism, nor the dreary, dull, “compulsory heterosexuality” in hierarchic

relationships, is rape. They aren’t rape, furthermore, whether the rhetorical point of the

conflation is to condemn it all as rape or praise it all as hot. The experience of rape is

shot through with an unwilled invasion of the body, fear for one’s own imminent death,

and the pain of non-consensual physical touching; none of that is present in either

consensual sado-masochistic or hierarchic sex whether hotly desired or not. One could

conflate or confuse these drastically different subjective experiences only by ignoring,

willfully or not, the experience of the rape victim. There’s no good reason to do that, and

plenty of good reasons not to.

At the heart of this odd convergence between feminism and queer theory, I

believe, is not simply (as is claimed by queer theorists who have noted the same

convergence) a shared objective view of the nature of sex, with then different affective

stances toward it. Or – it is not only that. Rather, what radical feminists and queer

theorists share (or also share) is a philosophical premise: they both over-endow sexual

power (and perhaps power itself) with hugely exaggerated normative significance, and

for just that reason, they both downplay – or forthrightly deny -- the normative

significance of subjective experiences of harm. Thus, radical feminists tend to see

coercion wherever they see sexual power, and accordingly give it a negative valence,

regardless of whether or not the sex it produces is consensual, regardless of whether or

not it is accompanied by desire or pleasure, and regardless of whether its participants

experience it as harmful or injurious. Consent, then, pales as a marker of coercion and

autonomy, and hence of legality and illegality, and the subjective experience of harm or

injury pales as the trigger of both legal intervention and justified communal concern.

Sexual inequality, and hence unequal sexual power, and hence the expression of sexual

power, is bad, per se, so to speak, with or without attendant harm. Queer theorists

identify transgressive pleasure– almost definitionally -- with sexualized power, and

therefore give it a positive valence -- with or without attendant harm, generally dismissed

by queer theorists as either imagined or trivial. The experience of all that sexualized

power as either welcome or not, desired or not, consensual or not, and harmful or not, is

inconsequential. From either perspective, then, consent fades in significance as power

looms: for radical feminists, sexual power is coercive with or without consent, and for

queer theorists, sexual power is transgressive and pleasure-enhancing, with or without it.

The consequence of all of this is a mis-description of the experience of rape and a

misappraisal of the seriousness of its harm – as well as a misapprehension of its

boundaries. Radical feminists tend to overstate the importance of rape and rape law in

the perpetuation of patriarchal regimes, while queer theorists understate rape’s

destructive power in the individual lives of the women so victimized. Against the

implications of these critiques, the now old-fashioned -- but nevertheless still quite liberal

– reliance, by liberals and liberal feminists, on consent as the demarcation of criminal and

non-criminal sexual conduct looks, basically, right.

B. Consensual Sexual Harms

What doesn’t look right, though, is what is too often inferred by that liberal

reliance: that because consensual sex is and should be non-criminal, it is also, thereby,

harmless, and should be shielded from all forms of legal or even communal regulation

likewise. As a moment’s reflection should show, that a transaction is consensual, and

with no third party negative effects, doesn’t imply that it is therefore harmless, or good

for both parties, or in their interest, or good for the world, or, just good, period. The

consensual transaction with no third party effects might well be pareto superior, or

efficient, or wealth-maximizing (one can and normative legal economists often do

typically define those terms in such a way as to make all of that tautologically true

), but

that doesn’t make it good or harmless, in anything remotely resembling our ordinary

usage of either word. At most, the consensuality of the transaction implies only that if the

transaction is harmful, or bad, it is so for reasons other than the harmful or bad

consequences that flow from the exercise of coercion or force.

In non-sexual contexts, this is not so difficult for most of us to see. An exchange

of labor for wages – or even, a gift of that labor for nothing in return -- if consensual, is

not “slavery,” so if it’s harmful, it’s harmful for reasons that are different from whatever

it is that makes slavery bad. It doesn’t follow from the fact that it’s not slavery, that it is

therefore good. It might be a good deal or a bad one; it might be harmful, or harmless; if

harmful, it might be trivially or profoundly so. That it is consensual doesn’t tell us that it

is harmless, or good, or beneficial. All we know from the fact that it is “consensual,” is

that if it is bad, it is bad for reasons other than coercion. It still might have been

exploitative, alienating, or grossly unfair. The trade itself might be, for the laborer, only

the next best thing to starvation – not good at all, and quite harmful indeed, but

nevertheless better than the alternative. It might infect the laborer with cancer-causing

asbestosis. It might be unsafe, endangering life and limb. It might be grueling and

unpleasant and monotonous and alienating. The noise alone might be so loud and

repetitive as to numb his brain and deafen him. It might be underpaid and sap too many

hours, days, weeks or years of a man’s life. It might require tedious motion for long

hours at low wages. It might also be harmful to the laborer in more subtle ways. It

might, for example, have the effect of legitimating in the minds of the worker and the

employer both a larger injustice, as numerous critical legal scholars have maintained – it

might make both feel that the world, and their place within it, is a moral and good place,

and thus squelch both the sympathetic and reformist instincts of the more powerful and

the organizing instincts of the less powerful.

If any of this is true, then even if the

transaction is consensual, the consensual labor contract might well do more harm than

good, might undermine progress, and so on. If consensual, it doesn’t enslave anyone. If

consensual, it might indeed create wealth -- we can define wealth in such a way that it

does so by definition. But it isn’t therefore good, and the world it leaves is not

necessarily an improved one.

The same can be said of the sale of a thing for money. The consensual sale, for

example, of a kidney for life saving purposes, or of skin to a skin graft bank for cosmetic

purposes, or of eggs to an infertile couple for reproductive purposes, if consensual, are

not thefts. The seller or donor is not the victim of a theft, and the buyer or donee has not

perpetrated one. It doesn’t follow, though, that the sale of body parts is good for the

parties or for the rest of us. Such sales – or gifts -- might unduly alienate the seller from

parts of his or her body that are and should remain so integral to personhood as to be

inalienable. Alienating body parts for sale might constitute a serious injury to personal

integrity. Likewise, the sale or purchase of a service – say a medical procedure -- may be

consensual, but it clearly is not therefore good. Virtually every consensual surgery is by

virtue of the consent therefore not a battery; it doesn’t follow that it was medically

indicated, that it was a wise decision, that it was well-performed, that it wasn’t

profoundly injurious, or that it was what the patient needed. Plenty of consensual

surgeries are negligently performed, some fatally so.

Surely the same is true, roughly, of sex: that a sexual transaction is consensual

and with no third party repercussions doesn’t imply that it is harmless, or good for either

party, or good for both of them, or good for the world. For various reasons, however,

even the logical possibility of some of these harms is broadly denied, in law and in

culture, and as I will argue in the next section, in queer and feminist legal theory

likewise. But first, what are they? Consensual labor can be exploitative; consensual

sales of that which should not be commodified might be alienating, and so on. What is

the harm in consensual sex?

Let me begin my answer by highlighting an ambiguity, and hence a complexity,

in the phrase “consensual sex,” and then distinguishing between two very different sorts

of harm that consensual sex, depending on how the ambiguity is resolved, might carry.

The ambiguity is this: “consensual sex” might be desired, or wanted (whether or not

ultimately enjoyed, or pleasurable), or it might not be. Sometimes, maybe more often

than not, maybe less often than not, women consent to sex that we want, or desire, and

entirely for its own sake. We consent to sex, in other words, because we actively desire

the sex. Sometimes, though, we consent to sex that we don’t want at all, and some

women and girls, and some men and boys as well, might do that quite a bit.

Why would anyone do such a thing? Think first of married women. For years –

centuries – married women have consented to sex that they do not want with their

husbands out of either a sense of religious obligation, fear of their husbands’ violence, or

from their understanding of the requirements of their wifely role. Until well into the

twentieth century, in this country alone, a married woman’s consent was not required by

law – forcible sex without consent between a man and his wife was not rape -- and her

pleasure and desire likewise were either irrelevant or their importance minimized by

social norm. It was her availability that was expected of her, and that defined her sexual

being, not her rapturous participation. This state of affairs obviously did not turn on a

dime when married men lost the legal power of chastisement, in the nineteenth century,

or when they lost the legal immunity to rape prosecutions with the abolition of marital

rape exemptions in the last quarter of the twentieth: as a casual perusal of advice columns

and women’s magazines from the mid to late twentieth century will show (or just ask

your mother), married women continued to consent to unwanted marital sex out of a

learned conviction that that their lack of desire evidenced their own problematic and

neurotic frigidity, an alienation from their own suppressed desires, or just a selfish

unwillingness to get along. What lack of sexual desire within marriage did not constitute,

for married women, was a good reason to resist the imposition of invasive, undesired

penetration of their bodies by their husbands. Married, mid-twentieth century women

consented to undesired sex, in other words, well after they were formally and legally

entitled to say “no,” in part because a chorus of advice from well meaning or not so well

meaning friends, family members, marriage counselors, advice columnists and religious

advisors urged them to do so.

What of unmarried women? Why might unmarried heterosexual women and

girls consent to sex they don’t want? Here’s just a laundry list, speculative and

anecdotal, of familiar enough reasons. Heterosexual women and girls, married or not,

consent to a good bit of unwanted sex with men that they patently don’t desire, from

hook-ups to dates to boyfriends to co-habitators, to avoid a hassle or a foul mood the

endurance of which wouldn’t be worth the effort, to ensure their own or their children’s

financial security, to lessen the risk of future physical attacks, to garner their peers’

approval, to win the approval of a high status man or boy, to earn a paycheck or a

promotion or an undeserved A on a college paper, to feed a drug habit, to survive, or to

smooth troubled domestic waters. Women and girls do so from motives of self-

aggrandizement, from an instinct for survival, out of concern for their children, from

simple altruism, friendship or love, or because they have been taught to do so. But

whatever the reason, some women and girls have a good bit of sex a good bit of the time

that they patently do not desire.

So, where’s the harm in all of this? First, note a contrast: wanted consensual sex

carries with it risks of harms that are fairly well understood, and for various reasons often

exaggerated, in our law, in our theory, and in our culture -- we acknowledge them, we

discuss them with our partners and with our children; we take precautions against them,

and we worry a lot over whether or not to regulate against them. Lately, we regulate

against them less and less, but we don’t deny their existence. Fully desired consensual

sex might be harmful for a good number of reasons. Wanted sex might lead to an

unwanted pregnancy or to disease, and in either case it might be injurious or even life

threatening. The pregnancy, if itself unwanted and carried to term, might curtail a girl’s

adolescence or young adulthood and lay the path for a difficult, quite possibly

impoverished, limited, and pleasure-deprived mid-life. If engaged in with an

inappropriate partner, such as a high school or college teacher or work supervisor, wanted

sex might result in her expulsion and his dismissal, in which case it might curtail a

promising academic career or remunerative employment. Or, it might have negative

long-term consequences not so readily tallied: hot desired sex between a graduate student

and professor might lock a girl into first an eroticized, but eventually a dreary domestic

role. Rather than become a teacher, scholar, or employable adult citizen that graduate

student who was so taken by her teacher might instead become a lover, wife, and mother

– which might be just great, or it might ultimately prove to be tedious, boring,

unchallenging, and not hot at all. Sex between supervisors and workers or presidents and

interns might be eventually harmful over the long haul for similar reasons, even if fully

desired by both parties. If consensual, all of this ultimately harmful sex is clearly not

rape. If the sex is welcome it is not sexual harassment either. It might nevertheless be

harmful, though, even though it is neither rape nor harassment. It might be harmful even

though it is consensual, legal, non-tortious, non-harassing, and much desired by both

parties.

Obviously, these harms might attach to unwanted sex likewise. Are there any

distinctive harms, though, that attach to unwanted sex? Although it is hard to prove – and

understudied – I believe that participation by many women and girls, in unwanted but

consensual opposite-sex sex – particularly over time -- carries with it harms that are

different than those that attend to wanted consensual sex, are often serious, and are not

only unregulated by law, but also, largely unrecognized. Consider a relationship

extending over weeks, months, years or decades – perhaps an adulthood -- in which a girl

or woman repeatedly engages in unwanted and unpleasing sex. That sex is, first,

physically invasive. It may also be emotionally abusive; repetitive sex wanted by one

party, but undesired by the other, night after night for months, years or an entire

adulthood, carries with it the message that her subjective hedonic life – her pleasures,

pains, and interests -- are of no consequence. They don’t figure into the equation of what

to do. That is damaging to a person’s self-sovereignty as well as one’s sense of self-

sovereignty: a woman who endures unpleasant invasive sex over time has implanted in

her body, so to speak, the truth that her subjective pleasures and interests don’t matter.

Her will does – the sex is consensual – but her pleasures don’t; they are not determinants

of her body’s actions. Rather, the subjective pleasures of another determine the use to

which she puts her body.

Such sex is likely to be alienating, and in something like the original sense of that

word: it alienates a girl or woman from her own desires and pleasures, and from that

sense of unified identity that comes from acting in the world on the basis of one’s own

desires and pleasures. She internalizes -- literally -- the message that her body is for the

pleasure of another rather than herself – a self image that will not serve her well in an

individualistic society that presupposes actors who choose on the basis of self-regarding

preferences. Put in less political terms, she trivializes her self, her injuries, and her

importance in the world, when she accepts as an existential truth that her own pleasures

and pains will not determine her choices or her actions. If the sex that results becomes a

central, defining part of a way of life, the reason for her continued existence and for the

material support of her partner -- it becomes a threat to the largeness of her self and

ambitions. And -- if it becomes a central part of a life that ties her existence, survival,

and hence her interests to that of another – if unwanted sex is the raison d’etre for a way

of life that limits her mobility, her ambition, and the development of her talents or

remunerative skills -- it constitutes a threat to her autonomy, likewise.

Of course, unwanted consensual sex is not always harmful in any of these ways.

Obviously, we consent to do things we don’t really want to do for all sorts of benign

reasons. I see movies I don’t want to see to please my children’s or husband’s tastes,

rather than my own, to say nothing of the social events, household chores, and so on that

I not so cheerfully tolerate. Likewise with sex: women and men both might consent to

undesired sex on occasion – even on many occasions -- for benign or harmless reasons.

A woman might, on occasion, rather watch television, read, or sleep, but agree to sex she

doesn’t particularly desire, because she loves her partner, because she’s accustomed to

trade-offs of this sort that benefit both, because she doesn’t feel it as a burden, because

she knows that her lack of desire may give way to desire, and so on. But that some

undesired sex is harmless hardly means that it all is.

Is there a way to capture, descriptively, the sub-class of unwanted consensual sex

that is harmful, from that which is not? I’m not sure, but a (highly contested) concept

borrowed from the law regulating sexual harassment on the job and in schools may help.

Unwanted sex or sexual advances at work or school are actionable harassment if they are

not only unwanted, as I’ve used the term above, but if they are unwelcome.

It is not

simply all sex, welcome or not, that occurs between persons differently situated on

various hierarchies –presidents and interns, CEOs and secretaries, professors and

students, generals and privates – that is actionable sexual harassment (although many

people mistakenly believe it to be). Such sex between unequals at work or school, if

welcome, may or may not violate a firm’s or a school’s anti-fraternization polities, but it

is not sexual harassment, simply by virtue of the existence of a hierarchic relation.

Rather – to constitute sexual harassment, the sex or the sexual advance must be

unwelcome. The “unwelcomeness” requirement in law has proven difficult, and vague,

and has elicited quite a bit of criticism.

Nevertheless, it is unwelcome sex, sexual

advances or sexual innuendo at work or school – not sex within hierarchy – that is the

gravaman of a sexual harassment complaint.

My suggestion is that something like the “unwelcomeness” requirement borrowed

from sex harassment law might also help us to see when unwanted sex might be harmful,

and when not, apart from work or school. When we consent to undesired or unwanted

sex that is nevertheless welcome, we typically don’t suffer the harms attendant to

unwanted consensual sex (we might, of course, suffer the harms that attend to all

consensual sex – disease, unwanted pregnancy, and so on). When we consent to

unwanted sex for friendship, for love, as a favor, to cement trust, or to express gratitude –

none of this is necessarily harmful. Unwanted sex to which we consent for these reasons

might also be, and I suspect often is, welcome – we don’t want it, but we welcome it

anyway, as a part of a relationship that is in its whole constructive, healthy, and pleasing.

But when undesired consensual sex is also unwelcome, it is likely to carry the harms to

self-sovereignty spelled out above, and it is those harms which, I believe, are seriously

under-reckoned by liberal valorizations of consensuality. We don’t tend to notice them,

we don’t dwell on them, we certainly don’t use law’s regulatory apparatus so as to deter

or compensate for them, we don’t (much) make movies or write novels about them, and

we don’t warn our young sons and daughters against them. We also don’t theorize much

about them, even in those radical traditions where we might expect to. Unlike the role of

the exploitative but consensual sale of labor or the alienating but consensual sale of body

parts in various strands of neo-marxism, the unwanted but consensual sexual transaction

plays a de minimus role in radical feminism, virtually no role in liberal feminism, and its

coherence as well as its importance is quite aggressively denied in queer theory.

Culturally, theoretically, and critically -- we don’t much worry about all of this one way

or the other.

C. Invisible Harms

The harms occasioned by wanted and welcome consensual sex are by no means

invisible to either law or culture. Quite the contrary: until relatively recently they have

long been the subject of intense legal regulation: unintended pregnancies outside of

marriage, the degradation of family relations that might attend adulterous sex, the various

real or imagined harms attendant to underage sex, the damage to reputation and the

institution of marriage that might be done by sex-for-pay, and of course, the moral

corruption attendant to all forms of sexual deviance, have all been targeted by laws

regulating and to some degree criminalizing fornication, adultery, abortion,

contraception, prostitution, teenage sex, illegitimacy and sodomy. Much – most -- of

this regulation is fading fast: some of it has been struck as unconstitutional. We are now

aware not only of the risks attendant to wanted or welcome sex, but also the risks

attendant to regulating in such a fashion as to minimize them. Nevertheless, even as we

forego legal regulation as a way to combat them, we are more than aware of their

existence. We weigh them in our own minds, we write novels and make movies about

them, we study them endlessly, we rehearse them with our teenage children, and we

create school curricula intended to drive the message home. Consensual, wanted,

welcome sex, we all know, and we teach our children, comes with risks of quite serious

harms, whether they are regulated by law or not: of disease, of unintended pregnancies,

of unwanted abortions and unplanned births, of poverty, domestic misery, stunted or

altogether missed childhoods and interrupted career paths. Pleasure has its traps, the

familiar message goes, so watch out.

By contrast, and with the important exception of some of the harms attendant to

unwelcome sex in the workplace and at school,

the harms of unwelcome consensual sex

outlined above are almost entirely invisible to law, and for the most part, always have

been. We don’t regulate against them, we don’t attempt to deter them, and we don’t

compensate for them when they occur. This is not likely to change: the Supreme Court’s

groundbreaking decision in Lawrence v Texas striking anti-sodomy laws, seemingly

holds that virtually all consensual sex is now not only presumptively legal but

constitutionally protected against regulation -- as Justice Scalia, perhaps a bit too bitterly,

but correctly, complained.

There’s no reason not to think that the constitutional

protection now accorded the full-fledged right to consensual sex by Lawrence wouldn’t

include the unwelcome as well as the welcome kind, same-sex or otherwise. Now of

course, law isn’t the whole story, here or elsewhere. With the sexual liberation and

women’s liberation movements of the 1960s and 1970s (and with the dismantling of

marital rape exemptions) social expectations regarding unwelcome sex have shifted

somewhat: many women are now more likely to regard themselves and their sexual

desires as of equal importance, and their sovereignty over their bodies as something not

to be foresworn lightly in the absence of desire. Nevertheless, the cultural expectation

that wives will submit to husbands’ sexual advances and that girls and women outside of

marriage will likewise comply, to some unknown degree remains in place for large

swaths of the population. Law has done nothing to interrupt this expectation. These

harms simply have no legal salience. Law’s authorities – whatever might be true of

cultural authority – are silent, with respect to them.

Why, though, have our critical scholarly movements – liberal, feminist, and queer

– movements that do not, as a rule, make a habit of embracing the logic of Supreme

Court decisions – also been silent with respect to these legitimated harms? With respect

to liberal legalism, I think the reasons are transparent: as noted at the outset, liberal-

legalists, albeit for different reasons, tend to confer consensual transactions across the

board – economic, political, sexual – with presumptive value that largely overshadows, if

not negates, the possibility that those transactions might also create harm. Liberal

aversion to moralistic legislation that interferes with sexual choice is indeed considerably

more intense, and sweeping, than liberal aversion to legislation that interferes with

economic choice. But this too is not hard to explain. The closeted, privatized, indeed

sequestered invisibility of these harms – in women’s bodies, inside homes, and inside

intimate relationships – in spaces where privacy is revered, plays a heavy and explicit

role, as does a host of cultural factors, not so explicitly acknowledged: the continuing

effect of religious traditions that count female asceticism and sacrifice in all things sexual

as both a virtue and a duty; the overhang of a fairly brutal family law history that negated

or minimized even severe manifestations of these harms, and, we might surmise, a

healthy dollop of men’s sexual self-interest. If we put all this together -- the liberal

regard for individual choice, the presumptive nexus between consent and value central to

economic forms of liberal legalism, the hard-fought-for constitutional and liberal regard

for familial and sexual privacy that now surrounds both abortion decisions and same-sex

sexual activity, a general hostility to paternalistic and morals legislation and a host of

cultural factors to boot -- the liberal-legalist blindness to the harms of unwanted sex is not

so surprising. If anything its over-determined.

The story is much more complicated, I think, with respect to radical legal

scholarship, and particularly both radical feminism and queer theory. I’ll start with

feminism. Radical feminism is hardly wedded to an excessively rosy eyed view of

consensual sex, but nevertheless, it too has failed to attend to the distinctive harms of

unwelcome consensual sex, outside of the school or workplace. I think there are two

reasons. The first is quasi-logical, and suggested by the discussion above: radical

feminism has been committed for some time now to an extraordinarily broad view of

coercion, by which whatever is demonstrably bad for women that seemingly follows

from consensual choices women make within conditions of inequality, is viewed as

necessarily coercive. Therefore, for radical feminists, the category of “consensual

harms” is vaguely oxymoronic. If something is harmful, it must be the result of

inequality, and if unequal, then coercive, and if coercive, then not consensual. The

category of “consensual harms” disappears.

There is, though, a second and I think deeper reason for the invisibility of these

harms in radical feminist scholarship and writing, which goes not to their skepticism

regarding the viability of consent in conditions of inequality, but rather, to skepticism

regarding the distinction between welcome and unwelcome sex. Central to radical

feminism for at least the last thirty years has been what is now called a “critique of

desire:” sexual desires across the board, according to radical feminist critique, are as

socially constructed as anything could ever be.

Women’s sexual desires, furthermore,

are particularly suspect: they are politically and socially constructed by pernicious and

patriarchal forces, and are then aimed, like a weapon, against women’s interests,

autonomy, dignity, and equality.

As a consequence, women often desire sex that is on

its face debasing, humiliating, and submissive, and, whether known to the woman who

harbors the desire or not, the sex so desired is injurious, unequal, and subordinating. This

was – and is – an audacious claim, and its stark clarity in many ways accounts for the

strength and staying power of the feminist movement it in part defined. The willingness

to hold on to it in the wake of the total uproar it elicited from all corners, when it first hit

the public scene in the 1980s, is a lasting testament to the tenacity of those, but primarily

Catherine MacKinnon, who held it.

Nevertheless, it might have been a misguided claim, and if it was, one

consequence is that its target – women’s actual sexual desires, particularly for submissive

or sado-masochistic sex – might have been ill-chosen. I’ve argued elsewhere that it was;

that these desires are largely inconsequential and harmless. What I want to suggest here

is that it also had an unfortunate and generally unnoticed implication: the radical feminist

claim that women’s felt sexual desires are harmful to women’s interests and equality

overshadows – and in many ways undercuts -- the claim (made here) that undesired sex

might sometimes cause harms – precisely because it is undesired. The former claim, after

all, rests on a thoroughgoing skepticism regarding the normative significance of desire--

if you desire something, nothing whatsoever follows about whether or not what you

desire might be good for you – while the latter rests on an affirmation of desire, and a

worry about the choices made against it. The problem with which feminism must

centrally reckon, according to radical feminist argumentation, is not what is suggested

here -- that women often consent to sex that they do not welcome, and that when they do

so the sex is sometimes injurious – precisely because it is unwelcome. Rather, the

problem is the desires women have, and with the sex women actually welcome – not that

they have sex they don’t want. The deepest harm, so to speak, occasioned by patriarchy

upon women’s psyches, according to radical feminism, is the contorted nature of female

desire, not that we consent to sex against the counsel of our desire. The problem, in

short, is our desires, not our choices. The relative invisibility of the harms done by

unwelcome sex, then, is one cost extracted by the theoretical insistence on the

harmfulness of the objects of our felt desires.

And lastly, queer theory. Queer theorists likewise fail to see any harm in

unwanted sex, and for a simple reason: they deny the existence of the category, or more

precisely, they tend to regard it as a null set. As with purportedly non-consensual sex,

purportedly unwanted sex is (often, or usually) not really unwanted at all, the claim that

sex is unwanted is the result of a “sex panic,” or of undue repression, or displaced shame.

Therefore, claims of unwelcome sex, in sexual harassment actions for example, should be

viewed skeptically.

Sex is awfully desirable, apparently, even when it’s not desired:

the claim that it isn’t desired is what should be viewed critically, not the sex itself.

Whether or not sex is welcome can’t be read off of objective facts about the sex itself:

welcome sex can be painful, humiliating, shameful, and of course transgressive. But nor

can it be read off of victims’ protestations: victims just protest too much, as we used to

say. The result is a highly circumscribed (if that) law of sexual harassment – and no

room at all for a critique of sex that proceeds in the absence of desire, and of course no

reason to abstain from sex on the basis of its lack.

Here again the unnoted parallelism, and not just the much noted contrast, with

radical feminism is telling. Radical feminist and queer theoretic understandings of

unwanted sex differ in almost all particulars, but they converge on this point: they both

fail to lend normative significance to felt desires. Neither desire, for feminists, nor its

lack, for queer theorists, is a trustworthy guide to the interests, the wellbeing, or simply

the subjective pleasures and pains of the person who does or doesn’t hold it. For both,

desire is not a meaningful distinction within the larger category of consensual sex, just as

consent itself is not a meaningful distinction within the larger category of sex. Thus,

radical feminists are skeptical of the authenticity of women’s sexual desires, and

particularly of non-vanilla sexual desires the content of which seemingly run contrary to

objective interest and substantive equality. That women have a desire for it has no

normative significance: there is no harm in frustrating women’s desires, and plenty of

good reason to do so. Again, the problem with which feminism must contend is that

women have desires that are contrary to their interest in equality, not that they choose to

engage in sex they don’t desire. Queer theorists, on the other hand, are skeptical of the

authenticity of heterosexual women’s felt or expressed lack of desire: a felt or proclaimed

lack of desire that runs contrary to the transgressive pleasure to be had from sexual power

is most likely inauthentic. The specific harm, then, that might follow from consenting to

sex one does not desire or does not welcome, just fails to register.

So, note the common ground: Radical feminists critique desire, while queer

theorists critique its lack – but both camps build political perspectives on the basis of

their devaluation of the veracity and coherence of desire, and I would say more broadly

of women’s (and some men’s) subjective experience. That skepticism, on both sides,

carries with it pernicious consequences. Most obviously, but perhaps least

consequentially, the radical feminist critique of desire targets sexual desires – particularly

desires for sadomasochistic sex – that are largely harmless and politically meaningless.

Second, though, and I think more important, the feminist critique of desire leads to a

deeply regrettable blindness to a particular form of harm, of which radical feminists in

particular ought to be acutely aware: harm caused by women’s consent to sex that is in

point of subjective fact unwelcome and contrary to what they desire. It may be that some

of our sexual desires are inauthentic in the way argued by radical feminists, and that,

when acted upon, they are harmful to us. I don’t mean to deny that; I just don’t know.

But whether our desires are inauthentic or not, many women, very often, choose to

participate in consensual sex that they quite strongly do not welcome or desire. We ought

to be concerned that the choice to do so might itself be harmful precisely because it is so

alienating – precisely because it is contrary to desire. We can’t even consider the

possibility, if we are mightily distracted by the claim that it is the desires themselves that

are suspect.

Queer theorists, in what can charitably be described as an over-correction, have

put forward what we could call, following Gowdri Ramadachian’s helpful suggestion,

“critique of the lack of desire:” when women (or men) claim not to want or welcome sex,

we should be skeptical, particularly where those claims in turn are the motivators of

claims of rape or sexual harassment. Sexual desire, by the teachings of queer theory, is

what is ubiquitous, the claim that one does not feel it is just not believable. We have had

too long a history, in this country and virtually all others, of rampant and often vicious

denials of sexual desire to simply accept such protestations. This skepticism of course is

not pulled from thin air: indeed there are false rape claims, as there are false claims of all

sorts. But not much of interest follows from that. There’s no evidence that those false

claims result from ambiguously felt desire, or that the legal system does a worse job here

than elsewhere of ferreting them out. When women express a lack of desire for sex,

there’s no good reason to assume that expression is a panicked response to repressed

sexual desire. If the sex is imposed anyway, in the face of her lack of consent, it’s a rape,

and if provable, ought to be prosecuted as such. If she consents in the absence of desire,

she may have done so for good reason or ill – the unwanted sex might be welcome or not.

If it’s welcome, more power to both of them. If not -- we should treat that as the canary

in the mine it surely is. If unwelcome sex is a constant in a woman’s life -- for weeks,

months, years, and decades -- it is likely to be alienating and oppressive – in a word,

injurious. We might decide for all sorts of reasons that we cannot imagine a legal

response to such a private injury. It doesn’t follow though that we should deny or ignore

it.

D. Conclusion

Liberal, feminist and queer theoretic arguments for failing to attend to the harms

of consensual but unwelcome sex are unconvincing. Liberals have been rightly faulted

for half a century now for casting a veneer of legitimacy around consensual states of

affairs in non-sexual spheres of life – both political and economic. The consent of the

governed can be produced by pernicious forces and with disastrous consequences, the

consent of buyers of goods or sellers of labor can likewise. Consensual transactions can

unduly commodify that which should not be bought and sold, and can worsen rather than

enrich our relations with our selves, each other and the natural planet we inhabit. Surely,

the same is true in our sexual lives: the sex to which we consent, when it is contrary to

our desires, and when within the context of relationships that are less than welcome in

our lives, can alienate us from our bodies, from our subjective pains and pleasures, from

our needs, our interests, our true preferences, our histories and our futures. Unwelcome

sex can carry all of these harms, yet be fully consensual. We don’t see this, only if we

mistakenly accept “consent” as a reliable marker for wellbeing. Consent may well be a

good marker for the divide between the criminal and non-criminal, in sex as elsewhere; I

believe it is. It’s not a good proxy for wellbeing. We should not treat it as such.

Feminism and queer theory both, no less than liberalism, have also over-relied on

proxies for well being – but different proxies. For radical feminists, the proxy is the

power imbalance. Power imbalances poison all transactions which occur within them –

desired and undesired both – so the distinctiveness of harms caused by undesired

consensual transactions gets subsumed within a larger problem: desires that run contrary

to interest. Thus, both desired and undesired consensual sex (as well as consensual and

nonconsensual sex) is damned by the imbalance that underscores it all. Inequality

becomes the proxy for harm. For queer theorists, power, and particularly sexual power,

is the proxy for pleasure and value both. The consequence is a pervasive skepticism

regarding the veracity and even the coherence of claims of sexual aggression of all sorts.

The result is a complacency at best and complicity at worst with a good deal of sexual

violence and oppression both.

We could reverse this tide in one fell swoop by simply honoring the authenticity

of women’s felt desires, and their lack. And, we could do so while consistently

maintaining an openly critical stance toward the possibility that the sexual choices

women make, when those choices are contrary to felt desires, are harmful. Thus, when

consensual sex is fully desired, there’s not much reason to question the authenticity of the

desire or the value to its participants, no matter how non-vanilla the flavor. We could,

and I think should, abandon the “critique of desire” without losing any of the quite real

strengths of radical feminism. On the other hand, when conditions prompt women to

consent to sex that they do not desire, there is no reason not to name and contend with the

harms to integrity and self sovereignty to which those choices, and that consensual sex,

might lead. We don’t need to construct fanciful explanations for that lack. We could

drop the critique of the “lack of desire,” without losing what might be an important

insight at the heart of so much queer theory: that power imbalances in sexual acts are

exciting, pleasurable, and largely benign. We should drop, in sum, both the critique of

desire developed by the radical feminism of the 1980s, and the critique of its lack

developed by queer theory of the last decade. If we do so – and maybe only if we do so -

- we might then bring into focus what is otherwise thoroughly obscured by both, and that

is the harms occasioned by the unwelcome sex to which women consent, in the absence

of any desire of their own. We should at least open an inquiry into the value of the

unwanted sex to which we consent, as well as the harms occasioned by the rapes to which

we decidedly don’t.

See, e.g., Stephen Shulholfer, Unwanted Sex: The Culture of Intimidation and the

Failure of Law, (Cambridge, MA: Harvard University Press, 1998); Susan Estridge, Real

Rape, (Cambridge, MA: Harvard University Press, 1987); Donald Dripps, “Beyond Rape:

An Essay on the Difference Between The Presence of Force and the Absence of

Consent,” Columbia Law Review 92, 1780-1806 (1992); Michelle Anderson,

“Negotiating Sex,” Southern California Law Review 78, 1401-1438 (2005); “What Is

Rape?,” St. John’s Law Review 79, 625-644 (2005) “Marital Immunity, Intimate

Relationships, and Improper Inferences: A New Law on Sexual Offenses by Intimates,”

Hastings Law Journal 54, 1464-1557 (2003).

The liberal claim that consent should define the boundary between sex that is a

crime (either rape or something less serious) and sex that is not, remains a reform

proposal. It still does not accurately reflect virtually any state’s law – although it is

widely and correctly understood as the sensible endpoint of the overall direction of the

changes that have occurred in rape law over the last couple of centuries. It has also

attracted a substantial body of internal friendly critical attention from legal reformers,

legal scholars, and moral and legal philosophers, much of which is concerned with

boundary issues: is sex consensual when it is the product of various sorts of promises,

threats, or misrepresentations, is it consensual if induced by fear not of imminent bodily

harm but eventual bodily harm, how much duress is required to render consent only

apparent rather than real, should non-consensual sex with unconscious or for some other

reason incapacitated victims be criminalized to the same degree, if there is no evidence of

physical injury, and so on. These issues are all important, and as Alan Wertheimer

correctly notes, their resolution requires real-world deliberation and moral reasoning, and

not simply elaboration of various possible definitions of consent. Alan Wertheimer,

“Consent and Sexual Relations,” in The Philosophy of Sex, edited by Alan Soble,

(Maryland: Rowman and Littlefield 2002). They can also, I believe, be resolved

consistently with an insistence on lack of consent as the primary marker of criminal

sexual behavior. They are not, however, the focus of this paper.

John Stuart Mill, The Subjection of Women, edited by Sue Mansfield, (Arlington

Heights, Ill.: AHM Publishing 1980). For an excellent history of feminist political

reform movements on issues pertaining to sexual violence within marriage during the

Victorian era, see Mary Shanley, Feminism, Marriage, and the Law in Victorian

England, 1850-1895 (Princeton University Press, 1989).

See Shulhofer, note supra, Anderson, note supra, Estridge, note supra.

See Nadine Strossman, Defending Pornography: Free Speech, Sex, and the Fight for

Women’s Rights, (NYU Press, 2000), see also Nan D. Hunter and Sylvia Law, “Brief

Amici Curiae of Feminist Anti-Censorship Task Force, et al. in American Booksellers

Association v. Hudnut,” University Michigan Journal of Law Reform 21, 69-136 (1987-

1988).

See Barry Lynn, “Civil Rights’ Ordinances and the Attorney General’s Commission:

New Developments in Pornography Regulation,” Harvard Civil Rights-Civil Liberties

Law Review 21, 27-125 (1986).

See Igor Primoratz, “What’s Wrong With Prostitution,” in The Philosophy of Sex, 451-

73; Lars Ericsson, “Charges Against Prostitution: An Attempt at a Philosophical

Assessment,” Ethics 90, 335-66 (1980).

See David A. Richards, Women, Gays and the Constitution: The Grounds for Feminism

and Gay Rights in Culture and Law, (University of Chicago Press 1998).

For a discussion and critique of these liberal arguments for same sex marriage and

against sodomy laws, see generally Chai R. Feldblum, “Gay is Good: The Moral Case for

Marriage Equality and More,” Yale Journal of Law & Feminism 17, 139-184 (2005).

For a history see David Garrow, Liberty and Sexuality: The Right to Privacy and the

Making of Roe v. Wade, (Macmillan, 1994; updated paperback edition, University of

California Press, 1998).

See Eugene Volokh, “How Harassment Law Restricts Free Speech,” Rutgers Law

Journal 47, 561 (1995); “Freedom of Speech and Workplace Harassment,” UCLA Law

Review 39, 1791-1872 (1992), “Workplace Harassment and the First Amendment, I,”

Encyclopedia of the U.S. Constitution, edited by Leonard Levy & Kenneth Karst (New

York: Macmillan Reference, 2000), 2925.

See e.g., Randy Barnett, “Justice Kennedy's Libertarian Revolution: Lawrence v.

Texas,” Cato Supreme Court Review 2002-2003, 21-41 (2003); Barnett and Douglas

Rasmussen, “The Right to Liberty in a Good Society” in "Symposium on the Constitution

and the Good Society," Fordham Law Review 69, 1603-1615 (2001).

See generally, Tom Grey, “Eros, Civilization, and the Burger Court,” Law and

Contemporary Problems 43:3, 83-100 (1980); Jed Rubenfeld, “The Right of Privacy,”

Harvard Law Review, 102, 737-807 (1989).

Richard Posner, Sex and Reason, (Cambridge, MA: Harvard University Press, 1992) at

388, and Posner, Economics of Justice, (Cambridge, MA: Harvard University Press,

1981) at 60-61.

Strossman, note supra, see also Carole S. Vance, ed., Pleasure and Danger:

Exploring Female Sexuality, (1st ed., Boston and London: Routledge & Kegan Paul,

1984), (2nd ed., with new introduction, London: Pandora, 1992, 1994).

See e.g., Catherine MacKinnon, Feminism Unmodified, (Cambridge, MA: Harvard

University Press, 1987), 81-93; Catherine MacKinnon, Toward a Feminist Theory of the

State, (Cambridge, MA: Harvard University Press, 1989), 146, 174; Robin Morgan,

Going Too Far: The Personal Chronicle of a Feminist, (New York: Random House,

1977), 165-66 ("rape exists any time sexual intercourse occurs when it has not been

initiated by the woman, out of her own genuine affection and desire. . . . How many

millions of times have women had sex "willingly" with men they didn't want to have sex

with? . . . How many times have women wished just to sleep instead or read or watch the

Late Show? . . . Most of the decently married bedrooms across America are settings for

nightly rape). See generally Carole Pateman, “Sex and Power” [Review of Feminism

Unmodified by Catharine A. MacKinnon], Ethics 100:2, 398-407 (1990), and “Women

and Consent,” Political Theory 8:2, 149-68 (1980). Reprinted in The Disorder of Women:

Democracy, Feminism, and Political Theory, (Cambridge University Press, 1989), 71-89.

Catherine MacKinnon, Toward a Feminist Theory of the State, note supra, at 1.

See e.g., Kathy Abrams, “Sex Wars Redux: Agency and Coercion in Feminist Legal

Theory,” Columbia Law Review 95, 304-376 (1995).

See Robin West, “Law’s Nobility,” Yale Journal of Law and Feminism 17, 385-458

(2005).

Adrienne Rich, Compulsory Heterosexuality and Lesbian Existence, in Blood, Bread

and Poetry, (New York: W.W. Norton, 1986).

See Catharine A. MacKinnon, “Pornography Left and Right,” Harvard Civil Rights-

Civil Liberties Law Review 30, 143–168 at 143-147 (1995).

See, e.g., Catharine A. MacKinnon, Feminism Unmodified, note supra, at 54

(arguing that it is difficult to sustain the customary distinctions between sex and rape);

MacKinnon, Toward a Feminist Theory of the State, note supra, at 146.

Catherine MacKinnon, Toward a Feminist Theory of the State, note supra, at 1.

Janet Halley, “Sexuality Harassment,” in Directions in Sexual Harassment Law, edited

by Catharine MacKinnon and Reva Siegel, (New Haven: Yale University Press, 2003),

182, 193-98. See also Janet Halley (writing under the name Ian Halley), “Queer Theory

by Men,” Duke Journal of Gender Law and Policy 11, 7-52 (2004); Halley, “The Politics

of Injury: A Review of Robin West’s Caring for Justice,” Unbound 1, 65-92 (2005).

Michel Foucault, Politics, Philosophy, Culture, Interviews and Other Writings, 1977-

84, edited by Lawrence D. Kritzman, (New York: Routledge 1988) 204-05.

David Kennedy, “The Spectacle and the Libertine,” in Aftermath: The Clinton

Impeachment and the Presidency in the Age of Political Spectacle, edited by Leonard V.

Kaplan and Beverly I. Moran, (NYU Press 2001), 279, 289.

I have addressed these problems and others with queer theory elsewhere. See Robin

West, “Desperately Seeking a Moralist,” Harvard Journal of Law & Gender 29, 1-50

(2006). For a recent and related critique of queer theory on the grounds that it embraces a

sexualist ideology that privileges the valorization of sex over life itself, and the tragic

repercussions of that ideology during the AIDS crisis of the 1980s, see Marc Spindelman,

(forthcoming).

Id. at 37-38; Bersani, “Is the Rectum a Grave,” AIDS: Cultural Analysis/Cultural

Activism, 43, Winter, (1987), 197-222 at 213-215.

Richard Posner, Economics of Justice, note supra, 60-61.

See the essays collected in The Politics of Law: A Progressive Critique, edited by

David Kairys, (New York: Basic Books, 1998), Roberto Unger’s classic essay, “The

Critical Legal Studies Movement,” Harvard Law Review 96, 561 (1983)

and Robert

Gordon, “Unfreezing Legal Reality: Critical Approaches to Law,” Florida State

University Law Review 15, 195-220 (1987) for strong examples of this critical point.

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

See Louise Fitzgerald, “Who Says? Legal and Psychological Constructions of

Women’s Resistance to Sexual Harassment,” and Kathryn Abrams, “Subordination and

Agency in Sexual Harassment Law,” and Jane Larson, “Sexual Labor,” in New

Directions in Sexual Harassment Law,

note supra, 94-137.

See generally, Catherine MacKinnon, The Sexual Harassment of Working Women

(New Haven: Yale University Press, 1979); Meritor Savings Bank v. Vinson, 477 U.S. 57

(1986).

For a related critique of Lawrence, see Marc Spindelman, “Surviving Lawrence v.

Texas,” Michigan Law Review 102, 1615-1667 (2004).

MacKinnon, Feminism Unmodified, note supra, at 54; Toward a Feminist Theory

of the State, note supra, at 129-31.

Id.

Halley, “Sexuality Harassment,” note supra, at 197.

In conversation, in a workshop at Georgetown Law Center.