From Commodification to Valuation: Lawsplaining Sexual Wrongdoing

Posted: 27 Aug 2019 Last revised: 6 Dec 2019

Date Written: August 23, 2019

Abstract

The past few years have witnessed a seismic shift in the public attitude toward sexual harassment, assault, and abuse, a change galvanized by social movements such as #MeToo, SlutWalk, and the Time’s Up Foundation. While it is admittedly difficult to resolutely speak of the message of these multifaceted and dynamic movements, this Article nevertheless engages in the risky business of lawsplaining: interpreting some of the main tenets of these movements by fitting them into the legal debate surrounding the meaning of sexual consent. For law, sexual wrongdoing is often a function of the absence of consent, yet it is often unclear what its absence entails, particularly so when sexual contact is unwanted but is not physically compelled. In an attempt to overcome this challenge, legal scholars have commonly advocated either a transactional model of sexual consent or a view which the Article describes as a valuative approach. In the context of this debate, the Article argues, the contemporary shift in public attitude can be seen as seen as rejection of the transactional approach and an espousal of the opposing valuative model.

This framework helps shed light on both the contemporary attitude and on the valuative model it manifests. By exposing the pervasiveness of sexual exploitation in various industries, demanding less tolerance to sexual harassment, calling out offensive forms of sexual interaction, and by stressing the close connection between these reprehensible behaviors and sexual assault and abuse, these influential movements exhibit two main strands that together form the valuative model of wrongdoing. On the one hand, these movements can be understood as insisting on the incommensurable value of sexuality. Grounding this message in Michael Waltzer’s notion of domination, the Article argues that from a valuative perspective sexual wrongdoing consists of the attempt to bring non-sexual considerations to bear on another’s sexual decision-making. At the same time, these movements exhibit a shift in public attention from the physical features of sexuality to its communicative aspects. As such, these movements manifest a greater willingness to condemn illicit communications not only for their propensity to produce unwanted sexual contact — such as law’s current preoccupation with violent threats — but also for their independent harm to the victim’s ability to engage in identity-enhancing sexual valuation. Together, the Article argues, these two strands broaden the meaning of sexual wrongdoing from the narrow question of whether sexual consent was free of vitiating coercion to a broader focus on the interpersonal interaction that constitutes the sexual domain.

Keywords: Criminal law, Rape, Sexual offenses, Prostitution, Legal theory, Sexuality, Sexual Harassment

Suggested Citation

Maggen, Daniel, From Commodification to Valuation: Lawsplaining Sexual Wrongdoing (August 23, 2019). Available at SSRN: https://ssrn.com/abstract=3441501 or http://dx.doi.org/10.2139/ssrn.3441501

Daniel Maggen (Contact Author)

Yale University, Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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