This paper addresses the question of whether rape-law reform should treat all cases of simple rape—nonconsensual sex that does not involve the use or credible threat of physical force—as a serious crime. Of primary concern here are those sexual interactions, often referred to as “date rape” or “acquaintance rape,” where the coercive element is not physical force as evidenced by reasonable resistance. Should, as some feminist reformers have urged, felony rape include sexual interactions that may not be fully consensual but (...) do not include the use of physical force? If so, can convincing answers be provided for due process questions about what constitutes valid consent to sex and how to tell when it is present. This paper warns of the difficulties in determining what counts as evidence of nonconsent and mens rea in light of the “linkage thesis” which takes valid consent in these cases to be bilateral and interactive, and to imply the absence of mens rea. Given the complexity of norms governing these sexual interactions and the high likelihood of reasonable mistakes about consent, this paper contends that criminalizing these cases of simple rape will often result in the unjust treatment of the relevant parties. (shrink)

A little more than two years ago, a Texas woman, faced with a knife-wielding intruder demanding sex from her, tried to talk her attacker into wearing a condom to protect herself against the possibility of contracting AIDS. A grand jury refused to indict the man because jurors believed that the woman's act of self-protection implied that she had consented to sex.

What consequences do poststructuralist theories of language have for feminist strategies addressing rape? In particular, what might be the fate of attempts to secure the meanings of certain words uttered by women in this context, such as ‘no’? Can we bracket off such statements from the agon of the juridico-linguistic domain in a manner that short-circuits all contest? In contrast, if we agree that such contest is an irrevocable component of the field in which feminist struggles take place, does this (...) mean we no longer need to attend to the destiny of women’s refusal before the law? This article will consider these questions in relation to the framing of refusal in a recent Australian sexual assault trial. I will suggest that a poststructuralist feminist strategy might turn to the political process of recontextualization that attends such utterances, in order to contest the institutional rewriting of rape as romance. (shrink)

Proposing and consenting to sex are things that ordinary people manage to do all the time, yet legal regulation of sex seems to be an intractable problem. No one is satisfied with rape law, but no one knows quite what to do about it.