Sexual Agency and the Unfinished Work of Rape Law Reform

Abstract

For half a century, feminist legal scholars and activists have worked to reconstruct the retrograde foundations of rape law. In place of chastity protection, I argue that sexual agency underpins the modern law of rape. I begin by describing the construct of sexual agency, emphasizing how feminist insights have enriched a more familiar ideal of autonomy in ways that bear directly on sexual violence. I then apply the theory of sexual agency to three areas of relatively successful law reform efforts—substantive, evidentiary and procedural. I also consider the limits of rape law’s progress, again by reference to sexual agency. The agency frame recasts how a set of necessary reforms has fallen short of its intended target. I consider one final challenge to women’s agency that has become increasingly salient in the current #MeToo moment—acquiesced-to (unwanted consensual) sex. I conclude that, while the promise of female sexual agency remains unfulfilled, it should endure as the desideratum of reform.