If we [women] have not stopped rape, we have redefined it, we have faced it, and we have set up the structures to deal with it for ourselves.[T]he definition of rape, which has in the past always been understood to mean the use of violence or the threat of it to force sex upon an unwilling woman, is now being broadened to include a whole range of sexual relations that have never before in all of human experience been regarded as (...) rape.In 1989 the philosopher and self-described feminist Christina Sommers published a short essay — ‘an opinion piece,’ she called it — that was eventually developed into and published as a philosophical article. In this essay Sommers criticized ‘feminist philosophers’ for being ‘oddly unsympathetic to the women whom they claim to represent.’ Specifically, Sommers accused these philosophers of ignoring the ‘values of the average woman’ and of being caught up in an ‘ideological fervor.’ To emphasize her point that the so-called feminist philosophers have lost touch with ‘the average woman,’ Sommers wrote that ‘One must nevertheless expect that many women will continue to swoon at the sight of Rhett Butler carrying Scarlett O'Hara up the stairs to a fate undreamt of in feminist philosophy.’. (shrink)

I begin my analysis of consent by agreeing with Professor Hurd that consent functions as a “moral transformative” by altering the obligations and permissions that determine the Tightness of others' actions. I further agree with her that consent is intimately related to the capacity for autonomous action; one who cannot alter others' obligations through consent is not fully autonomous. I cannot improve on her elaboration of these points.

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is (...) radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability. (shrink)

This paper shows how the mythology surrounding rape enters into a criterion of reasonableness which operates through the legal system to make women vulnerable to unscrupulous victimization. It explores the possibility for changes in legal procedures and presumptions that would better serve women's interests and leave them less vulnerable to sexual violence. This requires that we reformulate the criterion of consent in terms of what is reasonable from a woman's point of view.

"Toward a Feminist Theory of the State" presents Catharine MacKinnon's powerful analysis of politics, sexuality, and the law from the perspective of women.