Consent to Sex: The Limits of Feminist Discourse and the Need for More Diverse Input

Posted: 3 Jun 2020 Last revised: 13 Jul 2022

See all articles by Dan Subotnik

Dan Subotnik

Touro University - Jacob D. Fuchsberg Law Center

Date Written: 2020

Abstract

This essay invites the reader to revisit feminist writings that have influenced conceptions of consent to heterosexual sex. A bold declaration by feminist scholar Joan C. William can help to center the debate: “[M]y goal is not to deliver the truth but to inspire social change.”

After considering the “heartbalm” regime-- an early and largely failed effort at sex regulation—the essay examines some famous assertions of women’s sexual vulnerability issued to justify new, heavy regulation: the fundamentality of rape (Susan Brownmiller), “dominance feminism” (Catharine MacKinnon), and related claims of women’s lack of agency (Robin West). These are set against rejoinders that whatever their power deficits in other areas, women are more powerful in the sexual realm than portrayed by the critics, and that real consent is both possible and more common than claimed. This will bring us to an evaluation of affirmative consent as a tool for determining consent.

The essay goes on to emphasize the absence of reliable data on assault. While not denying the importance of confronting sexual assault on campus and elsewhere, this discussion notes the huge gap between the 1 in 5 sexual assault statistic famously cited by President Obama and the percentages recorded in the so-called university Clery reports. The author argues that the uncertainty of all these data, which bear heavily on notions of consent, militates against stereotyping college men as brutes, an argument buttressed by the report of four Harvard women law professors detailing what they consider shockingly unfair treatment of men in campus assault investigations.

The final part of my critique focuses on the #MeToo-related demand (Deborah Tuerkheimer) that women should simply be believed in he said/she said cases. Analogizing rape to robbery—with no mention of their fundamental difference or concern about due process rights of men—this demand is premised on the idea that no one questions the actual occurrence of a claimed robbery. Drawing on such lines of argument, at least one highly placed academic asserts that defendants should not be believed because they, unlike their accusers, have a motive for concealing the truth.

Evidence against such blanket belief from the trenches is provided by an experienced sexual assault investigator and former law school dean (Joan Howarth), who underscores the significant sexual ambivalence and confusion she found in many women complainants. The uncertainties exposed here argue strongly for carefully individualized treatment of consent, as opposed to mass social generalizations, in college sexual assault disputes.

In closing, the author laments a characteristic that turns up in much feminist consent discourse: a tone of hostility and self-righteousness that allows virtually no room for male disagreement. The author suggests that this tone and this male absence tend to stunt and distort the understanding of campus sexual dynamics in legal academic scholarship.

Keywords: Feminism, Consent to Sex, Affirmative Consent

Suggested Citation

Subotnik, Dan, Consent to Sex: The Limits of Feminist Discourse and the Need for More Diverse Input (2020). Available at SSRN: https://ssrn.com/abstract=3594794. or http://dx.doi.org/10.2139/ssrn.3594794

Dan Subotnik (Contact Author)

Touro University - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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