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Reconsidering Rape: Rethinking the Conceptual Foundations of Rape Law

Published online by Cambridge University Press:  09 June 2015

J.H. Bogart
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A woman awakens surrounded by four men who remove her from her bed and take her to another room. Despite protests and physical resistance, the men engage in a series of sexual acts with her. She files a complaint and the men are charged, tried, and convicted. They appeal, claiming they believed she was agreeable to their actions. They had been told by her husband that she had unusual tastes in sexual matters, and liked simulated gang rape. Because they had thought she was willing, they had not intended to rape her and therefore should not have been convicted.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 8 , Issue 1 , January 1995 , pp. 159 - 183
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Copyright © Canadian Journal of Law and Jurisprudence 1995

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References

I have benefitted from discussions with Carola Mone, Jennifer Bell and Karen Snell, and from comments audiences at Chicago-Kent College of Law and Stanford Law School, and an anonymous reader for this journal.

1. The story is based on Director of Public Prosecuting v. Morgan (1975), 2 All E.R. 347 (HL). In the event, the jury was thought not to have believed the tale, and all four men served time. For a similarly bizarre tale that did in fact exculpate (at the direction of the court), see R. v. Cogan, R. v. Leaks (1975), 2 All E.R. 1059

2. In the actual case, Mr. Morgan was convicted of aiding and abetting, but not rape, because England had not abandoned spousal immunity to rape.

3. 2 All E.R. 347 at 355.

4. Ibid, at 353.

5. This case is loosely based on a widely publicized case in New Jersey. See “5 Youths Held in Assault on Mentally Impaired Girl, 17” N.Y. Times, May 25,1989, A.l, col.l.

6. First characterized as “did not resist”. Hanley, Robert “More Charged in Glen Ridge Attack” N.Y. Times, August 19,1989, A.26, col. 1.Google Scholar Defense lawyers characterized her as “a sexual aggressor” ( Hanley, Robert “Detective and Lawyer Clash on Reference to ‘Rape Victim’ in Glen Ridge Case” N.Y. Times, Dec. 4,1992, B.4. col.l);Google Scholar “a willing participant’ ( Hanley, Robert “Jury Chosen in Glen Ridge Assault Case” N.Y. Times, Oct. 15, 1992, B.7, col.4;Google Scholar “Defense Lawyers in Glen Ridge Abuse Case Say Woman Was Aggressor” N.Y. Times, Oct. 17,1992, A.31, col.l). In this case too convictions resulted. Hanley, Robert “Verdict in Glen Ridge” N.Y. Times, March 17, 1993, A.1, col.4.Google Scholar For a similar case, see Ayres, B. Drumond Jr. “Rape, Retardation and a Town Aghast” N.Y. Times, May 30, 1993, 1.18, col. 4Google Scholar

7. Unless the aim of the reform is general in a difference sense, i.e., to secure more convictions.

8. See, e.g., 2 All E.R. 347 at 352 (Lord Cross) (“Rape is not a word in the use of which lawyers have a monopoly”). More generally, see Posner, Richard A. Problems of Jurisprudence (Cambridge, MA: Harvard University Press, 1990) at 168–86,313–20.Google Scholar For a different approach, see Schulhofer, Stephen J. “Taking Sexual Autonomy Seriously: Rape Law and Beyond” (1992) 11 Law & Soc. Phil. 35 CrossRefGoogle Scholar.

9. Attacks on conceptual analyses of legal issues have a long tradition in American jurisprudence, from Justice Holmes’ “life of the law is not logic” and the Realist movement forward. See generally, Herget, James American Jurisprudence, 1870–1970 (Houston, TX: Rice University Press, 1990);Google Scholar Horwitz, Morton J. 2 The Transformation of American Law, 1870–1960 (Cambridge, MA: Harvard University Press, 1992).Google Scholar For similarly skeptical treatment, see Posner, supra note 8.

10. MacKinnon, Catharine Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1990).Google Scholar

11. See, e.g., Schlag, Pierre “Normative and Nowhere to Go” (1990) 43 Stan L. Rev. 167;CrossRefGoogle Scholar “Normativity and the Politics of Form” (1991) 139 U. Penn. L. Rev. 801; Gary Peller, “The Metaphysics of American Law” (1985) 73 Cal. L. Rev. 1151.

12. See, e.g., Lakoff, George Metaphors We Live By (Chicago: University of Chicago Press, 1980);Google Scholar Johnson, Mark The Body in the Mind: The Bodily Basis of Meaning, Imagination and Reason (Chicago: University of Chicago Press, 1987);Google Scholar de Sosa, Ronald The Rationality of Emotion (Cambridge, MA: MIT Press, 1987);Google Scholar Hume, David A Treatise of Human Nature (Oxford: Clarendon Press, 1951).Google Scholar

13. Hampshire, Stuart Thought and Action (New York: Viking Press, 1959);Google Scholar Anscombe, G.E.M. Intention (Oxford: Blackwell, 1957);Google Scholar Davidson, Donald Essays on Actions and Events (Oxford: Clarendon Press, 1980);Google Scholar Thalberg, Irving Perceptions, Emotion and Action: A Component Approach (Oxford: Blackwell, 1977).Google Scholar

14. This follows from the social construction and conditioning of gender and sexuality. For some useful discussions, see, e.g., Jaggar, Alison Feminist Politics and Human Nature (Totowa NJ: Rowman and Allanheld, 1983);Google Scholar Henderson, Lynne “Rape and Responsibility” (1992) 11 Law & Phil. 127;CrossRefGoogle Scholar Tabet, Paola “Imposed Reproduction: Maimed Sexuality” (1984) 7 Fem. Issues 63;Google Scholar Mathieu, Nicole-Claude “Biological Paternity, Social Maternity” (1984) 4 Fem. Issues 63;CrossRefGoogle Scholar Wittig, Monique “On the Social Contract” (1989) 9 Fem. Issues 3;CrossRefGoogle Scholar Firestone, Shulamith The Dialectic of Sex (Toronto: Bantam Books, 1975);Google Scholar hooks, bell Yearning: Race, Gender, and Cultural Politics (Boston: South End Press, 1990).Google Scholar

15. See, e.g., Nussbaum, Martha Love’s Knowledge (New York: Oxford University Press, 1990);Google Scholar Thalberg, supra note 13.

16. Greenspan, Patricia S. Emotions and Reasons (New York: Routledge Kegan Paul, 1988);Google Scholar Nussbaum, supra note 15; de Sosa, supra note 12. The idea dates at least to classical Greek philosophy.

17. See, e.g., supra notes 12, 13, 15, 16; Neu, Jerome Emotions, Thought and Therapy (London: Routledge and K. Paul, 1978);Google Scholar Grunbaum, Adolf The Foundations of Psychoanalysis (Berkeley: University of California Press, 1984).Google Scholar

18. Although most frequently discussed in application to topics in philosophy of science, these are desired properties of theories generally. Laudan, Larry Progress and Its Problems: Toward A Theory of Scientific Growth (Berkeley: University of California Press, 1977);Google Scholar Lakatos, Imre The Methodology of Scientific Research Programmes (Cambridge: Cambridge University Press, 1978);CrossRefGoogle Scholar Glymour, Clark Theory and Evidence (Princeton: Princeton University Press, 1980).Google Scholar Arguments about the relative merits of various moral theories are frequently based on these (or quite similar) grounds. Brandt, Richard B. Theory of the Good and the Right (Oxford: Clarendon Press, 1979);Google Scholar Rawls, John A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University Press, 1971);Google Scholar Parfit, Derek Reasons and Persons (Oxford: Clarendon Press, 1984);Google Scholar Williams, Bernard Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985);Google Scholar Sidgwick, Henry The Methods of Ethics (London: Macmillan, 1901);Google Scholar Kant, Immanuel Groundwork of the Metaphysics of Morals, Paton, H.J. trans., (London: Hutchinson’s University Library, 1958).Google Scholar

19. Simplicity can easily excuse a failure to attend to circumstances or context. See, e.g., Minnow, Martha & Spelman, Elizabeth “In Context” (1990) 63 So. Cal. L. Rev. 1597.Google Scholar It can be a technique by which to suppress the complexity of relevant factors or phenomena. See, e.g., Radin, Margaret Jane “Lacking a Transformative Social Theory: A Response” (1993) 45 Stan. L. Rev. 409;CrossRefGoogle Scholar “Pragmatism and Poststructuralist Critical Legal Practice” (1991) 139 U. Penn. L. Rev. 1019, “Market Inalienability” (1987) 100 Harv. L. Rev. 1849; Crenshaw, Kimberle “Demarginalizing the Intersection of Race and Sex” (1989) U. Chi. L. Forum 139;Google Scholar Roemer, John “Should Marxists Care About Exploitations” (1985) 14 Phil. & Publ. Aff. 30.Google Scholar For all that, simpler theories which are of equal success as more complex theories, are better. This preference holds for social phenomena, social practices, just as it does for physical explanations. Nelson, Alan “Explanation and Justification” (1987) 97 Ethics 154.CrossRefGoogle Scholar

20. Lakatos, supra note 18.

21. MacKinnon, supra note 10; Brownmiller, Susan Against Our Will: Men, Women and Rape (New York: Simon and Schuster, 1975);Google Scholar Wittig, Monique “One is Not Born a Woman” (1981) 1 Fem. Issues 47.Google ScholarPubMed In the context of property, Margaret Jane Radin has explored some aspects of differing experiential relations to legal property regimes. See Radin, Margaret Jane “Property and Personhood” (1982) 34 Stan. L. Rev. 957,CrossRefGoogle Scholar and supra note 19. One basic approach of CLS is a close analysis of the conceptual commitments of legal doctrines. This is a powerful ground in the attacks on law and economics. Kelman, Mark A Guide to Critical Legal Studies (Cambridge, MA: Harvard University Press, 1987).Google Scholar

22. A third candidate for this list is sex against the will of the victim. I discuss later why a will account should not be considered separately. In the end, I reject it as parasitic on the accounts listed, and on its own confused. Two other accounts can also be generated which have significant historical import, forcible sex and coerced sex. Neither of the two accounts, however, can sustain more than surface plausibility.

23. I assume for present purposes that the first element is uncontroversial.

24. The classic formulation is from Aristotle, Nicomachean Ethics, Ross, trans. (1925).Google Scholar In Aristotle’s well-known example, the captain of an overladen ship in a storm acts nonvoluntarily when he jettisons cargo. Circumstances are such that an otherwise undesirable course of conduct is overwhelmingly favored, as the least bad outcome for example.

25. For a discussion in a legal context, see Feinberg, Joel The Moral Limits of the Criminal Law (New York: Oxford University Press, 1984)Google Scholar and Fletcher, George Rethinking Criminal Law (Boston: Little, Brown, 1978).Google Scholar

26. See, e.g., Pineau, Lois “Date Rape: A Feminist Analysis” (1989) 8 Law & Phil. 217 CrossRefGoogle Scholar and Chamallas, Martha “Consent, Equality and the Legal Control of Sexual Conduct” (1988) 61 So. Cal. L. Rev. 777 Google Scholar for theories which consider rape as a form of bad sex. As the discussion below makes clear, I do not share these views. An increasing number of statutes are at least on the face of it consent based. But phrasing is not always decisive, as Estrich has argued. See Estrich, Susan Real Rape (Cambridge, MA: Harvard University Press, 1987).Google Scholar A number of older statutes use the language of consent but turned out to rely on something like a force account.

27. It also provides a better fit with certain background political theories. But there are difficulties with historical theories.

28. For cases and discussion, see 70 A.L.R. 2d 824 and 65 A.L.R. 4 1064 (medical contexts); 90 A.L.R. 2d 591 (rape by fraud); Peoplev. Minkowski, 204 Cal. App. 832; Commonwealth v. Morgan, 1948) 162 Penn. Super. 105,56 A.2d 275, rev’don other grounds 358 Penn.607, 58 A.2d 30.

29. State v. Ely (1921) 114 Wash. 185, 194 P. 988; Regina v. Flaterry (1877) L.R. 2 Q.B. iv. 410, 13 Cox C.C. 388. For further material, see 65 A.L.R. 4 1065.

30. State v. Navarro, 90 Ariz. 185, 367 P.2d227(1961);State v. Williams, 128 N.C. 573, 37 N.E. 952 (1901). There are also prosecutions for rape under feigned marriages, e.g., People v. McCoy 58 Cal. App. 534,208 P. 1016 (1922).

31. See, e.g., Dripps, Donald A. “Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent” (1992) 92 Colum. L. Rev. 1780 CrossRefGoogle Scholar and Schulhofer, Stephen J. “Taking Sexual Autonomy Seriously: Rape Law and Beyond” (1992) 11 Law & Phil. 35.CrossRefGoogle Scholar

32. MacKinnon, supra note 10 at 172, 173; Russell, Diane B.H. The Politics of Rape: The Victim’s Perspective (New York: Stein and Day, 1975);Google Scholar Foa, Pamela “What’s Wrong With Rape?” in Vetterling-Braggin, M. et al., eds, Feminism and Philosophy (Totowa, NJ: Littlefield, Adams, 1977);Google Scholar Dworkin, Andrea Woman-Hating (New York: Dutton, 1974)Google Scholar and Our Blood (New York: Harper and Row, 1976).

33. MacKinnon, supra note 10 at 171–83; Dworkin, ibid.; Griffin, Susan Rape: The Power of Consciousness (New York: Harper and Row, 1979)Google Scholar and Woman and Nature (New York: Harper and Row, 1979); Lynne Henderson, supra note 14.

34. The conception applicable will not be uniform across cultures, however, anymore than equality must have the same meaning and embodiment everywhere. Of course, this does not imply that all views of persons are counted. It should be emphasized that autonomy does not mean individualism, least of all libertarianism. Communitarians also care about autonomy. See, e.g., Taylor, Michael Community, Anarchy and Liberty (Cambridge: Cambridge University Press, 1987);Google Scholar Kymlicka, Will Liberalism, Community and Culture (Oxford: Clarendon Press, 1990);Google Scholar Trotsky, Leon Literature and Revolution (New York: International Publications, 1925);Google Scholar Taylor, Charles Ethics of Authenticity (Cambridge, MA: Harvard University Press, 1993)Google Scholar and Sources of the Self (Cambridge, MA: Harvard University Press, 1989).

35. Rawls, supra note 18 and Political Liberalism (New York: Columbia University Press, 1993); C. Taylor, ibid.; Williams, B. Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985);Google Scholar Dworkin, Gerald The Theory and Practice of Autonomy (Cambridge, MA: Harvard University Press, 1988);CrossRefGoogle Scholar Christman, John ed., The Inner Citadel (New York: Oxford University Press, 1989).Google Scholar

36. Dworkin, supra note 35; Christman, supra note 35.

37. It is instructive to consider the affront of racist remarks from this perspective. Sexual slavery is not incompatible with self-determination, as it is with autonomy.

38. Bartky, Sandra Lee Femininity and Domination (New York: Routledge, 1990)Google Scholar and “Narcissism, Femininity and Alienation” (1982) 8 Soc. Theory & Prac. 127.

39. Dripps, e.g., focuses on this in his “commodity theory”. But to that extent it is partial and defective. Dripps, supra note 31. See also Henderson, Lynne “What Makes Rape a Crime” (1987–88) 3 Berkeley Women’s L. J. 193.Google Scholar Dripps offers a “commodity theory”: rape is wrong insofar as it is an expropriation of the body of another for sexual services. Dripps, supra note 31 at 1789. There are two basic forms, one involves obtaining sexual access by use or threat of force (1798), and the other focuses on engaging in sexual acts with another knowing they have refused (1804). The theoretical core is a claim that we can understand rape best if we look on sexuality as a commodity and attend to the demarcation of legitimate and illegitimate constraints on exchange of that commodity.

This alternative is, I think, seriously flawed. First, die analysis entails consideration of consent. Exchanges are primarily legitimated by consent. Commodification is one version of a consent theory, but cannot displace it. Second, the account is inadequate by its own standard. Dripps advances a case of unconscious sex as a central problem case, and discusses misrepresentation as a form of prohibitable conduct. Neither can be accommodated by his account of “sexual expropriation” because neither involves refusal. Both involve failure of consent.

Finally, part of Dripps, argument is an argument against a consent theory. But that effort misfires. First, his argument (1790) is really directed at a different theory which identifies rape with bad sex. Second, he fails to attend to the evidence he musters (1793: if no force, then consent and if consent then no force; cf. 1800 “present law does not punish pressure to engage in sex at all unless the pressure takes the form of force” with note 63). Third, Dripps believes bodi that consent is at least partly based in positive valuation of sexual autonomy (true) and that sexual autonomy is relative in a way that undermines its value to understanding rape (false). The problem here, as in many cases, is the too easy jump from the relation of a value to context to the thought that such relativity vitiates normative import. It doesn’t. What matters is the range of factors which condition the value; in this case, as in many cases, there are very general conditions of human life. (It is helpful to attempt concrete specification of conditions under which the value is seriously impaired. They are extreme conditions. By way of analogy, consider the conditions permitting the raising of human beings as a food source.)

40. E.g., Pineau, supra note 26; Chamallas, supra note 26; Henderson, Lynne “Rape and Responsibility” (1992) 11 Law & Phil. 127.CrossRefGoogle Scholar

41. This argument is elaborated below.

42. I think it possible to provide such a sorting, but that is not the point. I have begun such an effort in connection with the nonconsent account of rape in my unpublished paper “Sex and Consent”.

43. Model Penal Code §2.02(2)(c). See Fletcher, supra note 25, at §§4.3, 6.6.6, and 8.3; Feinberg, supra note 25 (Harm to Self) Ch.5 (§5.3) and Ch. 6 (§6.3); White, Alan, Grounds of Liability (Oxford: Clarendon Press, 1985) at 94–99, 105–111, ch.7.Google Scholar

44. See White, supra note 43 Ch. 7; Pickard, Toni, “Culpable Mistakes and Rape: Relating Mens Rea to the Crime” (1980) 30 U. Tor. L. J. 75 CrossRefGoogle Scholar and “Culpable Mistakes and Rape: Harsh Words on Pappajohn” (1980) 30 U. Tor. L. J. 415; Smith, Holly, “Culpable Ignorance” (1983) 92 Phil. Rev. 543;CrossRefGoogle Scholar Husak, D.N., Philosophy of Criminal Law (Totowa, NJ: Rowman and Littlefield, 1980).Google Scholar

45. This does not entail claiming that rape is less important for prevalence of occurrence, but that we should assess differently the actions of particular individuals in light of prevailing social norms.

46. See, e.g., LaFave, Wayne R. & Scott, Austin W., Handbook on Criminal Law (2d ed.) (St. Paul MN: West Publishing Co., 1986) at §3.3(b), §3.3(c). See also Smith, supra note 44;Google Scholar Woozley, A.D., “Negligence and Ignorance” (1978) 53 Philosophy 293.CrossRefGoogle Scholar

47. This is one way to understand liability for negligence and, in some circumstances, recklessness. See Smith, supra note 44; Pickard supra note 44; Woozley, supra note 46.

48. Hence it requires education to have date rape or marital rape recognized.

49. See Wasserstrom, Richard, “Racism and Sexism” and “Preferential Treatment” in Philosophy and Social Issues (South Bend, IN: University of Notre Dame Press, 1980).Google Scholar

50. This depends on the circumstances. Where the intoxicants are used as performance enhancers, it is likely still seduction. Where the use replaces judgment we move towards rape.

51. Of course, such a case need not be as simple as here described. I assume for the moment, somewhat counterfactually, that there is no further reason to consider it a case of rape. Although rape requires at least two parties, sex, pace Dripps, does not.

52. An account of rape is not an account of bad sex. Cf. Pineau, supra note 26 and Chamallas, supra note 26.1 also do not think that it is psychological states of participants that determine whether or not there has been a rape. There is nothing wrong, after all, in speaking of a person as not knowing that they were raped although conscious at the relevant times.

53. A point stressed by Catharine MacKinnon, among others. See MacKinnon, Catharine, “Sexuality, Pornography and Method” (1989) 99 Ethics 314 at 335–41.CrossRefGoogle Scholar

54. Part of the difficulties associated with intelligent discussion of child sexual abuse lies here. Freud’s failure with respect to the “child seduction” theory (which is not about seduction anyway) is instructive. See Masson, M., The Assault on Truth: Freud’s Suppression of the Seduction Theory (New York: Farrar, Straus & Giroux, 1984)Google Scholar and Herman, Judith, Father-Daughter Incest (Cambridge, MA: Harvard University Press, 1981).Google ScholarPubMed

55. See e.g., Williams, Glanville, Criminal Law; The General Part (2d ed.) (London: Stevens, 1961) at 12, 18, ch.2;Google Scholar Fletcher, Rethinking Criminal Law supra note 25 at §§6.4,6.7; Gross, Hyman, Theory of Criminal Justice (New York: Oxford University Press, 1979);Google ScholarPubMed Aristotle Nicomachean Ethics, supra note 24.; Kenny, Anthony, Freewill and Responsibiliy (London: Routledge and K. Paul, 1978),Google Scholar and “Intention and Mens Rea in Murder” in Law, Morality and Society: Essays in Honour of H.L.A. Hart, Hacker, P.M.S. & Raz, J. eds, (Oxford: Clarendon Press, 1977) at 161–74.Google Scholar

56. The holding in D.P.P. v. Morgan [1975] 2 W.L.R. 923 (H.L.) and People v. Mayberry 15 Cal. 3d 143, 542 P.2d 1337,125 Cal. Rptr. 745 (1975). The intent to have nonconsensual intercourse is distinct from an intent to have intercourse whether or not consenting. Whatever the moral assessment of the two intents, both provide grounds for responsibility under traditional theories. One line is drawn where the intent is for intercourse under an unreasonable belief in consent. For many purposes, there is no reason to distinguish between an intent that the intercourse be nonconsensual and disregard for whether it is consensual, i.e., a similar callousness is displayed.

57. E.g., we hold parents blameworthy for neglecting their children. Even outside such special relationships there is often moral blame. For example, negligent or intoxicated operators of machinery (including vehicles) are held to answer in both criminal and civil law, and suffer social disapprobation. Analogous treatment is found on a widespread basis.

58. I.e., we would have to abandon many regulatory schemes. More fundamentally it would require abandoning common accident description, i.e., extensive revisions of ordinary language classifications.

59. See Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961);Google Scholar Ullman-Margalit, Edna, The Emergence of Norms (Oxford: Clarendon Press, 1977).Google Scholar

60. See Pickard, supra note 44. As MacKinnon points out (supra note 53 at 354), much depends on whose beliefs are to be treated as reasonable. The position I am urging is that reasonable belief is a function of certain external observers. There is a danger that this will simply provide cover for perpetrator beliefs. However, that danger can be avoided if we take seriously the requirements of reasonableness of belief, i.e., consider the observers as able to provide adequate explanatory accounts of evidentiary beliefs and necessary patterns of reasoning for assessing the social context of a given act. See MacKinnon, ibid. at 353–54

61. Some parts of Schulhofer’s work reflect such an attitude. Schulhofer, supra note 31. Schulhofer offers an analytic approach that can be fairly characterized as about a distinct problem, albeit closely related. His concern is with problems of effective implementation of reform. His analytic efforts (especially at 68 et seq.) are, I think, consonant with the views advanced here. In the main what Schulhofer finds at the conceptual core of rape is violation of sexual autonomy. Although there are significant differences, this inevitably means that the analytic core is a consent theory of rape.

One notable difference is that Schulhofer divides the cases, so to speak, into two classes. One consists of forcible rapes, and the other includes the other cases, e.g., involving the incompetent or unconscious. 65.1 have not made that demarcation. But the motivation for Schulhofer to make the distinction is practical, not conceptual. His concern is with statutory reform and consequent enforcement. The range of considerations, obviously, must vary from those relevant to determining what defines the class of conduct that makes legal control appropriate. I hope to develop the comparison with Schulhofer in more detail at another time.

62. This is part of the traditional common law definition, and has been an element in code definitions throughout United States history. Even where deception or duress were allowed for, they are clearly alternatives to force. The connection between “against the will” and experience is direct. In order for an act to override the will of another, that other person will have to have a will on the issue and, except in extraordinary circumstances, be consciously present. Will is usually understood as a kind of desire or preference with quasi-experiential elements. For it to be overborne, there will be resistance, i.e., an experience of losing out, of being forced to undesired conduct.

63. This approach treats rape as fundamentally a violent rather than a sexual act. See Mackinnon, supra note 10 at 323.

64. See, e.g., People v. Bergschneider, 211 Cal. App. 3d 144, where the requirement is met by an apparently effortless movement of the victim’s hand. In such cases, it is the clear lack of consent rather than anything about the victim’s will that constitutes the action of rape.

65. See, e.g., Note, “Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard” (1952) 62 Yale L.J. 55; Note, “Recent Statutory Developments in the Definition of Forcible Rape” (1975) 61 Va. L. Rev. 1506; Note, “The Resistance Standard in Rape Legislation” (1966) 18 Stan. L. Rev. 682

66. The point is clearly and amply made in Estrich, supra note 26.

67. Moreover, it is very hard to square ‘will’ accounts with counterfactual analysis. Such analysis proceeds necessarily on the basis of abstract constructed persons and assessments of what such reasoning agents would do, how they would decide. They do not have a will in any interesting way distinct from the cognitive capacities exercised in consent. The language of will is unnecessary here and obfuscatory. In important respects, it is a defect of voluntariness as well. See also Posner, supra note 8; Hume, supra note 12.

68. The later exchange between Dripps and Robin West illustrates the respective limits of Dripps’ theory and the experiential view advanced by West. See West, Robin, “Legitimating the Illegitimate: A Comment On Beyond Rape” (1993) 93 Colum. L. Rev. 1444 CrossRefGoogle Scholar and Dripps, Donald A., “More On Distinguishing Sex, Sexual Expropriation, And Sexual Assault: A Reply to Professor West” (1993) 93 Colum. L. Rev. 1460.CrossRefGoogle Scholar

West criticizes Dripps on three grounds. First, his theory fails to make experience the essence of rape. (1448–49) Second, he has an overly expansive view of commodification and an impoverished view of self. (1451) Third, Dripps is unduly sanguine about ordinary sexual relations. (1452–53). However, as Dripps properly notes, the experiential claims is deeply problematic. (1461) It fails to explain clear instances of rape which do not involve an experience, as I have discussed supra. Dripps is similarly skeptical of West’s account of violence which is so overbroad as to be meaningless. (1462–63). Finally, he concedes that he was too sanguine about “ordinary” relationships in light of background conditions.

Both think there is progress in abandoning consent, yet neither notices that the very basis of their analyses necessarily involve a substantive account of consent. For example, both discuss cases where a person accedes to sex after violence, terming it “consent.” But this is wrong. There is no consent in such a context, whether the exchange is sexual or monetary. More directly, the very notion of legitimate methods of exchange entails consideration of consent. To the same end, as I have already argued, the experiential content of rape is also dependent on its nonconsensual nature.

A final point is worth making in this context. Both West and Dripps assert that background injustice renders consent untenable as a basis for evaluating interactions. (The background injustice, obviously, is differential access to resources.) This is not the place to give a detailed discussion of this claim. Suffice it to say that it proves entirely too much.

69. See Beinen, Leigh, “Rape III - National Developments in Rape Reform Legislation” (1980) 6 Women’s Rights L.Rep. 170;Google Scholar Beinen, & Field, , Jurors and Rape (Lexington, MA: Lexington Books, 1980), for a survey of statutory definitionsGoogle Scholar. The suggestion is not that statutes merely use the language of consent. As the Michigan reform experiences shows, terminological changes are not enough. Education of prosecutors and police along with the public, is required.

70. Estrich, supra note 26.

71. Cf. MacKinnon, supra note 53 at 347. Estrich, supra note 26.

72. See Fried, Charles, The Contract as Promise (Cambridge, MA: Harvard University Press, 1981).Google Scholar

73. MacKinnon, supra note 10.

74. West, Robin L., “The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory” (1987) 3 Berkeley Women’s L. J. 81 Google Scholar and “Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner” (1984) 99 Harv. L. Rev. 772. See also Chamallas, supra note 26.

75. MacKinnon, supra note 10.

76. See also Wittig, supra note 14.

77. For an interesting dialogue on this point, cf. Estrich, Susan, “Rape” (1986) 95 Yale L. J. 1087 CrossRefGoogle Scholar and Estrich, supra note 26 with Schulhofer, Stephen J., “The Gender Question in Criminal Law” (1990) 7 Soc. Phil. & Policy 105 and Schulhofer, supra note 8.CrossRefGoogle Scholar

78. Of course, consent is sensitive to context and the relative importance of the object affects the stringency of conditions.

79. On this debate, see, Waits, Kathleen, “The Criminal Justice System’s Response to Battering: Understanding the Problem, Forcing Solutions” (1985) 60 Wash. L. Rev. 267;Google Scholar Mahoney, Martha R., “Legal Images of Battered Women: Redefining Issues of Separation” (1991) 90 Mich. L. Rev. 1;CrossRefGoogle Scholar Rosen, Richard A., “On Self Defense, Imminence, and Women Who Kill Their Batterers” (1993) 71 N.C.L. Rev. 371;Google Scholar Maguigan, Holly, “Battered Women and Self-Defense: Myths and Misconceptions in Current Legal Reform” (1991) 140 U. Penn. L. Rev. 379.Google Scholar In the press, see, e.g., Rierden, Andi, “Citing Abuse, Women Ask for Clemency in Killings” N.Y. Times, May 12 1991, Sec. 2, p.l, col.5;Google Scholar Margolick, David, “When Child Kills Parent, Sometimes It Is to Survive” N.Y. Times, Feb. 14, 1992, A.1, col.3.Google Scholar

80. A bizarre case, introduced only for illustrative purposes. But it is noteworthy that extremes are necessary to illustrate the point.

81. In the actual case, the sentence ranged from four to 10 years.