In times of universal deceit, telling
the truth is a revolutionary act.
         - George Orwell

Napoleon once observed that "history" is a set of lies agreed upon. In an era of ubiquitous fake news and information warfare, this has never been more true. The very concept of objective truth in history is fading out of our world. Pure propaganda and outright lies are passing into our history textbooks as unquestioned truth, condemning future generations to false views about historical reality. But the task of sifting through the lies and propaganda is overwhelming, limited by the ambition and time constraints of most observors. Only those who have dedicated their lives to sorting reality from falsehood are qualified to rewrite "consensus" history as a duty to humanity. The contributors to this site endeavor to do just that.

(Read More)

Wednesday, July 12, 2017

Sexual Consent in an Era of Scapegoating and Police Totalitarianism

Per Se or Power? 
Age and Sexual Consent

By Joseph J. Fischel *

ABSTRACT:  Legal theorists, liberal philosophers, and feminist scholars have written extensively on questions surrounding consent and sexual consent, with particular attention paid to the sorts of conditions that validate or vitiate consent, and to whether or not consent is an adequate metric to determine ethical and legal conduct. So too, many have written on the historical construction of childhood, and how this concept has influenced contemporary legal culture and more broadly informed civil society and its social divisions. Far less has been written, however, on a potent point of contact between these two fields: age of consent laws governing sexual activity. Partially on account of this under-theorization, such statutes are often taken for granted as reflecting rather than creating distinctions between adults and youth, between consensual competency and incapacity, and between the time for innocence and the time for sex. In this Article, I argue for relatively modest reforms to contemporary age of consent statutes but propose a theoretic reconstruction of the principles that inform them.

 After briefly historicizing age of consent statutes in the United States (Part I), I assert that the concept of sexual autonomy ought to govern legal regulations concerning age, age difference, and sexual activity (Part II). A commitment to sexual autonomy portends a lowered age of sexual consent, decriminalization of sex between minors, heightened legal supervision focusing on age difference and relations of dependence, more robust standards of consent for sex between minors and between minors and adults, and greater attention to the ways concerns about age, age difference, and sex both reflect and displace more normatively apt questions around gender, gendered power and submission, and queer sexuality (Part III). Ultimately, because adolescent youth as a class are positioned as uniquely desiring and dependent subjects, they warrant particularized treatment under law (Part IV). However, contemporary U.S. law, on account of its adherence to formal neutrality and its predominant language of prohibition, is ultimately a poor forum to detect and
adjudicate coercion that arises at the interface of gender, sexuality and age differences. Therefore, not only should age of consent law be reformed and its principles rethought, but law itself should be deemphasized and refigured as a way to help better frame the problems of age and sex rather than as a way to resolve them (Part V).

* PhD Candidate, Department of Political Science, University of Chicago. I would like to thank Lauren Berlant, Scott Anderson, Patchen Markell, Bernard Harcourt, Martha Nussbaum, Shelley Fischel, and Igor Souza, as well as the editorial staff of the Yale Journal of Law and Feminism, whose thoroughness has made the revision process delightful. I am particularly indebted to Zachary Herz, for his exacting, generous, and often genius critiques. The financial and intellectual support provided by the Center for Gender Studies at the University of Chicago has been unwavering, for which I am humbly grateful. All shortcomings and polemics are my own. All puns are intended.
Copyright  2010 by the Yale Journal of Law and Feminism

INTRODUCTION: NUMBERS, POWER, SEX .......... .............. 281
PART I: U.S. AGE OF CONSENT STATUTES ................. ...... 285
A. A Brief History of U.S. Age of Consent Statutes ...... ...... 286
B. Contemporary U.S. Age of Consent Statutes .............. 292
CONSENT........................ ................ 294
A. What Sexual Autonomy Entails........... ............... 294
B. What Sexual Autonomy Need Not and Should Not Entail.............297
A. Lowering the Age of Consent, Decriminalizing Sex Between
Minors.......................... ............ 300
1. Objection: Children Are Incapable of Consent ..... ..... 303
2. Objection: A Lowered Age of Consent and the
Decriminalization of Sex Between Minors Will UnderProtect
Girls and Condone Sexual Violence Against Them..309
B. Continuing the Trend in Age-Span Restrictions over Per Se
Proscriptions .................................. .......... 311
1. Objection: Age Spans are Not a Necessarily Adequate
Proxy for Sexual Coercion ................. ..... 312
C. Regulating Relations of Dependence and Trust ........ ........ 315
1. Objection: Dependency Is Ubiquitous and Too Variable To
Be Regulable ............................... 316
D. Creating an Affirmative Standard of Sexual Consent for MinorMinor
and Adult-Minor Sexual Relations............ ........... 320
1. Objection: "Affirmative Consent" Can Be Coerced;
"Affirmative Consent" Is Still Subject to Judicial
Interpretation. ............................... 323
2. Objection: Why Not Adopt "Affirmative Consent" as a
Standard for All Sex To Better Protect Adult Victims?.........326
3. Objection: Who Says "Yes" to Sex? . . . . . . . ... . . ... . . 327
4. Objection: Why Not Abolish All Per Se Proscriptions and
Status Distinctions in Place of Affirmative Consent?....... ..... 330
E. Is Gay Intergenerational Sex Exceptional? ........ . ....... 332
PART V: LAW'S LIMIT .......................... ............... 340

Popular discussion of age and sex usually devolves into a numbers game. We generally agree that it is unfair for a seventeen-year-old to go to prison for having sex with a fifteen-year-old. 1 We generally agree too that a high school teacher should be prohibited from having sex with his or her student. But what do we think about sex between a teenage girl and a man in his twenties when they are dating? Or about sex between a sixteen-year-old boy and a man in his thirties who meet online?

Numbers alone are not morally determinative. Blanket age of consent laws may be necessary to prevent harm and protect sexual autonomy, but they obscure the moral concerns at stake in sexual relationships conditioned by radical imbalances of power. A legal age of consent, as one of the few and probably most widely known per se sexual proscriptions, imagines one set of people (children) as categorically incapable of sexual decision-making, and another set (women) as categorically available for sex. More mildly, age of
consent statutes may symbolically-if not quite functionally-figure sex below a certain age as guilty until proven innocent, and sex over that age as innocent until proven guilty.2 Such a calculation does not take into account the myriad other factors, beside age itself, that make young people more vulnerable to coercion and exploitation: inter alia, power, dependency, sexual and social experience, gender and gendered expectations.

1. In 2005, Genarlow Wilson received a ten-year prison sentence for aggravated child molestation
for having had oral sex with a fifteen-year old girl when he was seventeen. Amidst much public outcry
and charges of prosecutorial racial bias (Wilson is black), the Georgia General Assembly recategorized
the statutory crime of teenage sex, formerly a felony, as a misdemeanor. Wilson was released in 2007
following a Georgia Supreme Court ruling holding the punishment cruel and unusual. Humphrey v.
Wilson, 282 Ga. 520 (2007); Brenda Goodman, Man Convicted as Teenager in Sex Case Is Ordered
Freed by Georgia Court, N.Y. TIMES, Oct. 27, 2007, at A9; see also Meredith Cohen, Note & Comment,
No Child Left Behind Bars: The Need to Combat Cruel and Unusual Punishment of State Statutory Rape
Laws, 16 J.L. & POL'Y 717, 717-20 (2008).
2. CATHARINE A. MACKINNON, WOMEN'S LIvES, MEN'S LAWS 245-46 (2005) ("If the rape law
worked, there would be no need for statutory rape laws. Abuse of power, access, trust, and exploitation
of vulnerabilities to pressure people into sex that is not wanted for its own sake would be illegal....
Young age or age differential below a certain age is . . . ossified into an absolute rule. This segregates
out some of the most sympathetic cases for relative structural powerlessness in sexual interactions and
leaves the rest of the victims . . . unprotected, their inequalities uncounted. By cushioning its excesses,
this helps keep male dominance as a social system in place."). MacKinnon overlooks state criminal laws
that do account for other differences in power besides age-see infra note 217-but such nuance would
rob the argument of its rhetorical force which stages gender difference as the primary and paramount
inequality (notice the slippage from "abuse of power, trust, and exploitation of vulnerabilities" to "male
3. See infra Part M.
It seems reasonable that the age of consent in most U.S. states ought to be lowered, and sex between minors of the same age decriminalized,but only-and this is the central focus of this article-in conjunction with other correctives: a more robust standard of consent for adult-minor and minor-minor sexual relations and heightened regulation of sex among persons in relationships of dependency, trust, and/or radical differences in power.

This Article is divided into five parts:

Part I skeletally describes past and current age of consent laws in the
United States. Part II introduces the principle that I argue should inform age of
consent statutes and that should underlie reforms to existing statutes: sexual
autonomy. Adopting the concept from Stephen Schulhofer, I explain what I
retain and reject from his understanding before applying a norm of sexual
autonomy to the questions addressed in the remainder of the article.7 The ideas
and arguments articulated in Parts III, IV, and V are all in some sense tethered

4. See infra text accompanying notes 108-127.
5. Id.
6. As further explained, this article is agnostic about gender-not as to whether gender manifests
social hierarchy, but whether as a system of power inequality gender requires the same legal or moral
qualifiers (more robust consent, restrictions on heterosexual relations) as does intergenerational sex.
Much feminist legal theory is incorporated into my argument but is applied to minors, not women. To
foreground my argument somewhat, I believe Catharine MacKinnon's well-known structural account of
gender is less problematic when mapped onto age divisions than when applied to gender alone.
Although it is possibly true that the current cultural obsession with age appropriateness might stall an
appreciation of gender hierarchy, MacKinnon tacks too far, reducing problems of age and sex to gender
subordination. We might do better thinking about children as if they were MacKinnon Women, rather
than thinking about women as if they were children, as MacKinnon sometimes does. See, e.g.,
CATHARINE A. MACKINNON, SEX EQUALITY 1341 (2d ed. 2007) [hereinafter MACKINNON, SEX EQUALITY] ("[Child pornography] [e]nforcement is relatively vigorous. Consider whether this [more
extensive] definition [of child pornography, in relation to the obscenity standard of adult pornography]
is indeterminate and impossible to administer consistent with free speech guarantees. Should child and
adult sexual materials have different definitions? Should harm count in one and not in the other? Might
women who are used to make sex pictures thereby be harmed, whether or not the pictures violate
contemporary community standards, as children are regarded as being?"); CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 110 (1989) [hereinafter MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE] ("If the literature on sex roles and the investigations of particular issues are read in light of each other, each element of the female gender stereotype is revealed as, in fact, sexual. Vulnerability means the appearance/reality of easy sexual access; passivity means receptivity and disabled resistance, enforced by trained physical weakness; softness means pregnability by something hard. Incompetence seeks help as vulnerability seeks shelter . . . . Woman's infantilization evokes pedophilia."). The selected stereotypes are as applicable to children as they are to women, and, despite acknowledging these stereotypes as stereotypes, MacKinnon's a priori truth that masculinist sexual fantasy produces gendered social reality compels her to utilize women's (now "real")
vulnerability, passivity, and infantilization to authorize her claims for legal protections. For similar
critiques of MacKinnon, see Lauren Berlant, The Subject of True Feeling: Pain, Privacy, and Politics, in
CULTURAL PLURALISM, IDENTITY POLITICS, AND THE LAW 49, 73 n.44 (Austin Sarat & Thomas R. Kearns eds., 1999) ("[Iln [MacKinnon's] work the inner little girl of every woman stands as the true abused self who is denied full citizenship in the United States."); and KATIE ROIPHIE, THE MORNING AFTER: SEX, FEAR, AND FEMINISM ON CAMPUS 148 (1993) ("[T]he idea of women as children enters MacKinnon's writing. If you're going to claim that women have as little power and autonomy as MacKinnon claims, then they may as well be children.").
7. See infra Part l.

Per Se or Power? Age and Sexual Consent

to this principle. 8 Although discussed more fully in Part II, it is worth saying
here that sexual autonomy means something more like sexual liberty and less
like sexual license, acknowledging and according a place for legal restraints to
safeguard people's decision-making, to respect people's choices, and to hold
open their options. 9
Part III advances four reforms to age of consent law that would encourage
and be encouraged by sexual autonomy: lowering the age of consent and
decriminalizing sex between teenagers; continuing the trend of codifying agespan
provisions; regulating relations of trust and dependence; and establishing
an affirmative consent standard for sex between minors and between minors
and adults. These suggested reforms build on or against recent insights from
liberal and feminist legal theory, as well as from other disciplines and writings.
While I focus on a few liberal and feminist legal theorists, they do not serve as
totems for liberal and feminist legal thought writ large, and I do not intend to
lump their works together as "liberal" or "feminist" and then dismiss them
accordingly, in gross caricature (the problem with liberal legalism is .. .). To
the contrary, I explicate and critique these authors because they have significant
differences in their understandings of sexual consent, in their understandings of
the criteria necessary for consent to possess moral and legal transformative
force, and in their characterizations of age, age difference, and relations of
dependence. By engaging the objections liberal and feminist legal theorists
might raise against my claims, I work through the positions of these theorists
and highlight their points of contention, both to advance my own claims and to
defend their theoretical underpinnings.
The concluding subsection of Part III proposes that none of the theorists or
theories discussed adequately address the intersection of age, sex, and sexual

8. I call sexual autonomy a "principle" as it is both a propellant and an objective of the reforms and
theoretic revisions delineated below. I will describe the principle but not defend it; it is foundational and
generative, grounding arguments without being argued for, but is nonetheless open to contestation,
revision, and improvement. Despite the important admonition against feminist political projects miring
themselves in determining epistemological certainties (always impossible) at the expense of open-ended
democratic engagement, I cannot figure another way to intervene in law and legal theorizing, discourses
of principles, foundations, and rules all the way down. See generally LINDA M.G. ZERILLI, FEMINISM
9. See JOHN LOCKE, The Second Treatise: An Essay Concerning the True Original, Extent, and End
100, 102 (Ian Shapiro ed., Yale University Press 2003) (1690) ("But though this [state of nature] be a
state of liberty, yet it is not a state of license: though man in that state have an uncontrollable liberty to
dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature
in his possession, but where some nobler use than its bare preservation calls for it . . . and being
furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such
subordination among us that may authorize us to destroy another, as if we were made for one another's
uses, as the inferior ranks of creatures are for ours."). Despite his recourse to a higher authority to
ground universal rights, despite his naturalization and deification of private property in the state of
nature, and despite his presumption of innate hierarchies among humans and between humans and other
species, Locke's distinction between liberty and license and his rejection of instrumentalizing human
relations are worth retaining in discussions of age and sexual consent.
2010] 283
Yale Journal of Law and Feminism
orientation, nor do they consider the possibility that queer relations may have
different dynamics than heterosexual relations, either because gender and
gendered inequality operate differently in these different domains 1
0 and/or
because queer cultures may have a distinguishable and (more) defendable place
for intergenerational sex" (a possibility to which gay rights organizations are
absolutely allergic, and with good reason, given the historic pattern of equating
gays with pedophiles to imprison the former or deny them civil rights).12 In this
article, a (slightly) stronger case is made that it is gendered inequality-and not
queer exceptionality-that makes age difference different, depending on the
genders of the participants. In any case, more nuanced thinking about gender
and sexual orientation in this arena is necessary to protect the sexual autonomy
of queer youth, to undermine gendered and heterosexist social imperatives, and
finally to resist the conservative appropriation of child protection discourse to
propel homophobic and anti-sex policies.' 3 Nevertheless, the necessary
limitations of color-blind--or in this case gender-blind, or gay-blind-liberal
law initiate two wider concerns, cautionary reminders spelled out in Parts IV
and V. First, recourse to law, especially criminal law, to resolve social or
sexual inequality always entails unintended and sometimes regressive
consequences, for example by solidifying the very norms agitators hope to
dispel (boys as naturally desirous, girls as naturally wounded), or by
authorizing the state's punitive power over already vulnerable subjects (queer
men, men of color, young girls). Despite these serious objections to the
"juridicalization" of social justice politics, 14 I argue adolescents-regardless of
their gender or sexuality-should be considered a separate sex class under law
(Part IV). Such classification, while perhaps making some Foucauldians recoil,
is a better alternative to either maintaining existing laws governing sex and
youth, or to abolishing regulation altogether.
Finally, despite the seductive allure of adjudication as a vehicle for social
change, and despite an equally seductive allure of moral theorizing in the
10. See infra text accompanying notes 299-306.
11. See infra text accompanying notes 307-312.
12. George Chauncey, Jr., The Postwar Sex Crime Scare, in TRUE STORIES FROM THE AMERICAN
PAST 160 (William Graebner ed., 1993); see infra note 44. Consider also the centralization of
supposedly sexually threatened and vulnerable children in recent opposition campaigns against same-sex
marriage. See, e.g., two television advertisements produced by, a major supporter
of Proposition 8 in California. The passage of Proposition 8 restricted the definition of marriage in
California's constitution to be between one man and one woman. Vote Yes on Prop 8, Yes on 8 TV Ad:
It's Already Happened, YOuTUBE (Oct. 7, 2008),;
Vote Yes on Prop 8, Yes on 8 TV Ad: Everything To Do With Schools, YOUTUBE (Oct. 20, 2008),
13. See supra note 12; infra note 44.
political discourse is fully collapsed into juridical discourse, the meaning of political opposition runs the
risk of being reduced to the act of prosecution.").
284 [Vol. 22:2
Per Se or Power? Age and Sexual Consent
adjudicative mode15 (yes/no, good sex/bad sex), the law and its thou shalt
nots 6 must be decentered from our moral concern if we aim to promote and
protect young people's sexual autonomy (Part V). The question no longer is (or
never was), how can the law solve the problem, but rather, how can the law
contribute to refiguring the problem, rather than codifying or reproducing it?
None of my suggestions-either the more modest ones for legal reforms' 7
or the more conceptual ones for moral theorizing-are completely new. But as
far as I know, these suggestions-lowered age of consent, affirmative standards
of sexual consent for minors, greater restrictions on relations of dependence,
attention to questions of gender hierarchy and the possibly different dynamics
of queer relations, and finally a diminution of law's primacy in theorizing age,
sex, and harm-have never been offered in this combination. It is my hope that
the proposals of this article work synergistically, developing a more
complicated and consequently more honest cartography of young people, the
law, and sexuality.
This Part tracks the history and present forms of age of consent statutes in
the United States. This history is partial, illustrating some of the central
sociopolitical mores and objectives that mobilized age of consent reforms. This
Part does not account for all changes to these laws over the past hundred and
twenty years, nor does it contextualize in any sustained way age of consent
reforms alongside other alterations to U.S. law, sexual (sex trafficking
proscriptions, rape law, sex offender registration and notification, for
15. In a rather different (but maybe contiguous) consideration of gay men and bareback sex, Tim
Dean writes, "I'm claiming that thinking about bareback subculture happens most productively when
judgments concerning whether it is good or bad are deferred. I'm arguing that intellectual and political
work involves more than adjudication among positive and negative images of others or of ourselves....
I contend that sexual ethics begins not with making judgments about (or trying to regulate) others' sex
lives but with establishing others' freedom from interference, even as we recognize our mutual sexual
BAREBACKING 26 (2009). Although I agree that productive politics and intellectualism are foreclosed by
unreflexive recourse to adjudication, I am not certain that "judgments" and noninterference can be
juxtaposed so definitely, nor that noninterference is an uncomplicated ethical commitment (precisely
because of our "mutual sexual interdependence"), a point upon which this article attempts to expound.
16. Foucault famously insists that the modern idea of sex as the truth of the subject and of
subjectivity installed a dominant image of power as juridical and repressive (thou shalt not) rather than
as organic to and co-constitutive with discourses of sexuality. I MICHEL FOUCAULT, THE HISTORY OF
SEXUALITY 155 (1990) ("[Tlhe notion of sex brought about a fundamental reversal; it made it possible
to invert the representation of the relationships of power to sexuality, causing the latter to appear, not in
its essential and positive relation to power, but as being rooted in a specific and irreducible urgency
which power tries at best it can to dominate; thus the idea of 'sex' . . . enables one to conceive power
solely as law and taboo.").
17. See infra Part III.
2010] 285
Yale Journal of Law and Feminism
example)' 8 or otherwise (postwar Anglo-American liberalization, post-Reagan
neoliberalization, 1990s broken windows, mandatory minimums, habitual
offender, and truth-in-sentencing reforms, for example).' 9 I am primarily
concerned with how the law has changed, and the defining principles that
informed those changes. My point is not only to trace the moral and political
genealogy of laws governing young people's sexuality (and young people's
older partners/johns/abusers), but also to extract those principles that continue
to inform, or at least provide a palimpsest for, the present.
A. A Brief History of U.S. Age of Consent Statutes
In Jailbait: The Politics of Statutory Rape Laws in the United States,
political scientist Carolyn Cocca explains that reforms to age of consent laws
pivot around three historical junctures: the 1890s-1910s, led by social
reformers and religious groups; the 1970s-1980s, led by second-wave
feminists; and the 1990s, led mostly by neoconservative and neoliberal
politicians jointly advocating smaller government and a crackdown on crime.20
I adopt Cocca's periodization and complement it with other researchers'
insights and observations, as well as my own.
Prior to the 1890s, states adopted English common law regarding statutory
rape. Statutory rape was a strict liability offense, and covered only the sexual
violation of young girls between the ages of ten and twelve.21 The object of
protection was a girl's chastity, where laws aimed to secure the smooth transfer
of property in a girl's chastity from her father to her husband.22 Statutory rape
laws were enforced only against violations of white girls, as black girls' bodies
were sexualized as open territory. 23 If it were proven that a (white) girl had
18. For a contemporary (if now somewhat dated) account of laws regulating private sexual conduct,
(1996). For a more recent analysis of historical and contemporary sex offender laws, see generally
Deborah W. Denno, Life Before the Modern Sex Offender Statutes, 92 Nw. U. L. REv. 1317 (1998);
Joseph J. Fischel, Transcendent Homosexuals and Dangerous Sex Offenders: Sexual Harm and
Freedom in the Judicial Imaginary, 17 DUKE J. GENDER L. & POL'Y 278 (2010).
19. For recent analyses and critiques of late twentieth century transformations in U.S. criminal law,
STATES 9-28 (2004).
21. I1.
22. Id.; Michelle Oberman, Girls in the Master's House: Of Protection, Patriarchy, and the
Potential for Using the Master's Tools to Reconfigure Statutory Rape Law, 50 DEPAUL L. REv. 799,
802 (2001) ("[S]tatutory rape laws were an outgrowth of biblical precepts, by which virginity was so
highly prized that a man who took a girl's virginity without her father's permission was considered to
have committed a theft against the father.").
23. SeeCOCCA,supra note 20, at 11.
286 [Vol. 22:2
Per Se or Power? Age and Sexual Consent
previously been "unchaste," the defendant was exonerated.24 That only white
girls fell under the purview of protection, and that white girls who had been
promiscuous ("promiscuity" included being raped) forfeited protection, "shows
that the purpose of statutory rape law was to protect virginity, rather than to
punish men who coerce sex from young girls."25
In the late 1880s and 1890s, in both Britain and the United States, antivice
organizations, feminist reform movements, and social purity campaigns
advocated raising the age of consent.26 Industrialization, urbanization, and the
attendant influx of working-class young women in public spaces fueled
coalition campaigns. Fears of sex trafficking in white girls, and fears that young
immigrant and minority women were offering their sexual services 27 brought
together a politically diverse coalition which was somewhat successful in
changing state laws.28 Although many sought to raise the age of girls' legal
consent to eighteen or twenty-one, most states compromised on ages between
sixteen and eighteen to protect the interests and actions of men and male
legislators. 2 9
Both the marital exemption and the "promiscuity defense" were carried
over from their common law adaptations into turn-of-the-century reforms. A
man could not commit statutory rape (or rape proper, for that matter) against
his underage wife, and girls with sexual histories were generally excluded from
the protective ambit of state laws. 30 While the dominant historicism of the
reform movement at the turn of the nineteenth century interprets the coalitional
efforts of white middle class feminists, social reformers, and religious groups
as indicating a deeply conservative and reactionary movement to sanctify white
women's virginity, regulate immigrant women's bodies, and discourage sex
outside marriage, there is also some evidence that this is not the complete
story. Feminists and purity reformers also insisted that legal intervention was
necessary to check the predatory desires of men and their presumptive right of
access to young women.32 So too, female doctors, attorneys, and writers argued
24. Id.
25. Michelle Oberman, Turning Girls into Women: Re-Evaluating Modem Statutory Rape Law, 85
J. CRIM. L. & CRIMINOLOGY 15, 27 (1994); see also J. Shoshanna Ehrlich, You Can Steal Her Virginity
But Not Her Doll: The Nineteenth Century Campaign To Raise the Legal Age of Sexual Consent, 15
CARDOZO J.L. & GENDER 229 (2009) (observing that purity campaigns in the 1880s and 1890s
reinterpreted the low age of consent as inviting and legitimizing older male predatory desire).
26. COCCA, supra note 20, at 12-16.
27. Id. at 12-13.
28. Id. at 14-15.
29. Id. ("In effect, the raising of the age of consent and the codification of the 'chaste character'
defense made what was a crime about taking the virginity of a female of 10 or 12 into a crime about
taking the virginity of a female of 16 or 18."); Ehrlich, supra note 25, at 235.
30. COCCA,supra note 20, at 15.
32. See Ehrlich, supra note 25, at 244-45 ("Most scholarly accounts of the age of consent campaign
tend to view it as either protective or repressive in nature.. . . One can both appreciate the fact that the
2010] 287
Yale Journal of Law and Feminism
that a raised age of consent would allow young women to develop their
decisional abilities and sexualities free(r) from coercion.33 As others would
argue a century later, extended statutory rape coverage also meant protecting
girls from sex that, while coercive, did not meet the threshold of criminal rape
A confluence of postwar legal liberalization, the drafting of the Model
Penal Code, the emergence of second wave feminism, and the sexual revolution
of the 1960s set the terms for the next wave of age of consent reform.35
Feminist legal activists targeted both the gender specificity of extant laws and
the criminalization of young people's sexuality. 36 By only penalizing sex
against young girls, the laws both ignored sexual abuse and coercion against
young boys and codified the dominant assumption of young girls' sex and
sexuality: passive, treasured, spoilable.37 Beginning then in the 1970s and
carrying over into the beginning of the twenty-first century, states genderneutralized
their age of consent statutes and for the most part implemented agespan
reforms to replace blanket proscriptions. 38 Feminists targeted age
difference as a better proxy to target coercive sexual relations than age per se.
Legal attention shifted away from the traditionalist preservation of gendered
relations and towards eradicating abuses of power. Age of consent reforms
were a fraction of the broader egalitarian changes in formal sex law. 39
There were at least two unintended consequences of the 1970s reforms, the
legacies of which continue into the present. First, the formal gender neutrality
of the law belies the non-neutrality of the problem. 40 While boys are of course
sexually coerced and manipulated by older partners, it is predominantly girls
who report being victimized, being pressured into sex, and regretting their first
sexual experiences. 4 1 Like in other areas of the law, there is a fear here that
reformers had a genuine interest in protecting young women from sexual predation, while at the same
time acknowledging that this emphasis on bodily integrity was also a function of their belief that the loss
of virginity was a fate worse than death."); Oberman, supra note 22, at 803 (citing Jane E. Larson,
"Even a Worm Will Turn At Last": Rape Reform in Late Nineteenth Century America, 9 YALE J.L. &
HUMAN. 1, 2 (1997)).
33. See Ehrlich, supra note 25, at 237-38.
Michelle Oberman, Regulating Consensual Ser with Minors: Defining a Role for Statutory Rape, 48
BUFF. L. REv. 703, 714-17 (2000).
35. COCCA, supra note 20, at 16-24; Frances Olson, Statutory Rape: A Feminist Critique ofRights
Analysis, 63 TEX. L. REv. 387, 404-07 (1984).
36. COCCA, supra note 20, at 18-20; see also Olson, supra note 35, at 404-10.
37. See Wendy W. Williams, The Equality Crisis: Some Reflections on Culture, Court, and
Feminism, in THE SECOND WAvE: A READER IN FEMINIST THEORY 71, 76-77 (Linda Nicholson ed.,
38. COCCA, supra note 20, at 22-24.
39. Id. at 17-18.
40. Id. at 19.
41. See Oberman, supra note 25, at 63-70; Oberman, supra note 34, at 707-10; Lynn M. Phillips,
Recasting Consent: Agency and Victimization in Adult-Teen Relationships, in NEW VERSIONS OF
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facially neutral statutes disfigure the social problem: gender-neutrality ignores
the connection between age disparity and sex inequality, recasting the injustice
as one of uniformly incapable and inexperienced boys and girls submitting to
predatory older partners, rather than the paradigmatic case of a (somewhat)
42 older man advancing on a younger girl. To rephrase the concern another way:
gender neutrality of age of consent statutes may present sexual coercion across
age difference as a problem experienced between atomized nongendered
individuals rather than as a problem that intersects with and is strongly
inflected by gender inequalities.
The second problem revolves around queer sexualities and cuts two related
ways. First, age of consent statutes, now gender neutral, could be and were
used alongside other statutory apparatuses to incarcerate gay men. The moment
second wave feminists brought attention to incest and family sexual abuse,
police and prosecutors started hunting down gay men and gay organizations
under the pretense of child protection.44
Gay activists, some pedophile rights activists, and some queer youth in the
1970s argued for the abolition of age of consent statutes on the basis that such
laws censored youth sexuality, neglected young people's desires, and
particularly stymied the exploration and desires of queer youth, already
marginalized in their families and schools.45 The second prong of the second
problem: gender neutrality flattens out potential differences between queer
sexuality and heterosexuality, obscuring the possibility that sexual relations
across generations take on different meanings and are differently imbued with
power, depending on the genders and sexualities of the participants. These
42. See Elizabeth Hollenberg, Note, The Criminalization of Teenage Sex: Statutory Rape and the
Politics of Teenage Motherhood, 10 STAN. L. & POL'Y REv. 267, 270-71 (1999) (finding that older
partners are most often within five-year age spans of older teenage girls). However, younger sexually
active girls between eleven and fifteen years of age are more likely than older sexually active girls to
describe their sexual experiences as unwanted, and more likely to have had those experiences with
significantly older men. Id. at 271. This younger, more often coerced subset has been neglected by
1990s statutory rape enforcement targeting pregnancy prevention. See infra text accompanying notes 54-
43. Hollenberg, supra note 42, at 270-71; see also Catharine A. MacKinnon, Reflections on Sex
Equality Under Law, 100 YALE L.J. 1281, 1305 (1991) ("Underage girls form a credible disadvantaged
group for equal protection purposes when the social facts of sexual assault are faced, facts which
prominently feature one-sided sexual aggression by older males.").
IN MODERN AMERICA 156-57 (1998). For a sobering account of how Canada exploited its age of consent
and other child protection laws to harass and arrest gays, see generally Vincent Doyle, How to Make
"Kiddie Porn" in Canada: Law Enforcement, the Media, and Moral Panic in the Age of AIDS, in
episodic conservative appropriation of feminist campaigns against child sexual abuse to domesticate
women, criminalize non-normative sex, and regulate children, see, e.g., Linda Gordon, The Politics of
Child Sexual Abuse: Notes from American History, 28 FEMINIST REV. 56 (1988).
ed., 1981).
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concerns, as well as the liberationist argument for abolishing age of consent
laws, are discussed in Sections Ile and 1I1d, respectively.
It should be noted that the trend in gender neutrality and age-span
provisions did not occur uniformly, and girl-specific prohibitions and blanket
age proscriptions continue into the twenty-first century. 4 6 In the only age of
consent case heard by the Supreme Court, the plurality opinion held that
California's law penalizing exclusively men for sexually violating exclusively
underage women did not violate the Equal Protection guarantees of the
Fourteenth Amendment.4 7 Deterring teen pregnancy, the plurality opinion held,
was a rational legislative objective to warrant gender specificity.48 Neither
protecting the choices nor the bodies of girls and boys entered into the judicial
calculus; in fact, despite testimony that the petitioner "slugged" the victim in
the face until she acquiesced to sex, the consensuality of the sex was far from
questioned.4 9 In his concurrence, Justice Blackmun tangentially noted that the
drinking and "foreplay" between the petitioner and the victim indicated that the
victim was not an "unwilling participant."50 He omits the part about her getting
punched in the face. Meanwhile, the plurality insisted that pregnancy was
punishment enough for girls-they need not also face jail time.5' The dissent
argued that jailing boys and girls would double the effectiveness of pregnancy
deterrence.52 The girl's body, her choice, and her resistance were incidental
both to the prosecution and the Court. Rather, the rational basis of gender
specificity fell on the fetus and its (non)future.
The latest wave of age of consent reforms occurred in the 1990s. These
reforms mainly constituted changes in enforcement patterns, sentencing
extensions, and funding redistributions, rather than in legislated changes to
actual ages of consent or age-span provisions (although some states did raise
46. COCCA, supra note 20, at 22; Charles A. Phipps, Misdirected Reform: On Regulating
Consensual Activity Between Teenagers, 12 CORNELL J.L. & PUB. POL'Y 373, 391 (2003).
47. Michael M. v. Superior Court, 450 U.S. 464 (1981).
48. Id. at 471-73.
49. Id. at 467,475.
50. Id. at 483-85 (Blackmun, J., concurring).
51. Id. at 473 ("[T]he risk of pregnancy itself constitutes a substantial deterrence to young females.
. . . A criminal sanction imposed solely on males thus serves to roughly 'equalize' the deterrents on the
52. Id. at 494 (Brennan, J., dissenting); see also MacKinnon, supra note 43, at 1305 ("The plurality
opinion grasped the sex-differential reality at the cost of attributing it to biology. The dissent understood
the reality of sexual assault of girls to be socially created rather than biological, at the cost of failing to
understand it as nonetheless gender-based. The plurality saw a hierarchy but thought it was biologically
fixed. The dissent saw the possibilities for change, but missed the hierarchy.").
53. On the organization of U.S. politics around the always vulnerable fetus, on the political
infantilizing of U.S. citizenry that contains capitalist inequalities and privatizes racial and sexual
pluralism outside and beneath civic contestation, and on the political possibilities eclipsed or assaulted
by the sanctification of "reproductive futurism," see LAUREN BERLANT, THE QUEEN OF AMERICA GOES
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their ages of sexual consent).54 Reprioritized focus on statutory rape
enforcement and boosted funding coincided with the Clinton-era overhaul of
the federal criminal code in 1994, the rollback of welfare in 1996, and
escalating sociopolitical anxiety throughout the 1980s and 1990s that
childbearing, unwed, poor, teenage girls of color were the root cause of
poverty, urban dysfunction, and wasteful government spending.55 The federal
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA), restructuring welfare to workfare and replacing Aid to Families
with Dependent Children with Temporary Assistance for Needy Families,
declared unwed pregnancy a major cause of poverty.56 PRWORA encouraged
states to bolster their enforcement of statutory rape laws to decrease rates of
teen pregnancy.57 The underpinning logic, breathtakingly bizarre even without
the empirical research that eventually undermined it, was: poverty is caused by
unwed teenage girls having children; these children are mostly the result of
sexual relations between younger girls and older men; more punitive sentences
against older men for statutory rape and heightened enforcement (for example,
requiring poor teenage girls to name the father of their child in order to receive
social services) will act as a steady deterrent to age-differential sexual
relations, reduce teen pregnancies, and ultimately reduce state and federal
welfare spending.59
From the perspective of regulating underage sexual vulnerability, the most
phenomenal aspect of these sentencing, funding, and enforcement changes was
their comprehensive failure, both as a matter of policy or as a matter of any a
priori empirical rationale. In the 1990s, most unwed pregnant teens were
between the ages of eighteen and twenty, putting these women over the age of
consent in every state.60 Furthermore, a good number of pregnant teens at the
time were married, and marriage generally inoculates statutory rape liability. 61
Data ultimately suggested that these policies did not accomplish their stated
objectives of deterring teen pregnancy.62 Furthermore, criminal focus on
54. COCCA, supra note 20, at 93-128. On states that adopted a higher age of consent or increased
penalties, see Hollenberg, supra note 42, at 273; and Kate Sutherland, From Jailbird to Jailbait: Age of
Consent Laws and the Construction of Teenage Sexualities, 9 WM. & MARY J. WOMEN & L. 313, 323
55. COCCA, supra note 20, at 24-26; see also MARTHA ALBERTSON FINEMAN, THE AUTONOMY
MYTH: A THEORY OF DEPENDENCY 238 (2004); Anna Marie Smith, The Politicization of Marriage in
Contemporary American Public Policy: The Defense of Marriage Act and the Personal Responsibility
Act, 5 CITIZENSHIP STUD. 303 (2001).
56. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-
193, § 101(9)(A), 110 Stat. 2349-50 (1996).
57. Id.
58. Hollenberg, supra note 42, at 276.
59. See Lisa Duggan, Holy Matrimony!,NATION, Mar. 15, 2004, at 14.
60. Hollenberg, supra note 42, at 270.
61. Id.
62. Id. at 274-76; see also Rigel Oliveri, Note, Statutory Rape Law and Enforcement in the Wake of
Welfare Reform, 52 STAN. L. REV. 463, 505 (2000).
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teenage pregnant girls distracted attention from prepubescent and non-pregnant
teenage girls in sexually coercive relations.63 Finally, teenage pregnancy rates
had been steadily declining since the 1950s (although the rate of teenage sex
had been rising),6 putting into doubt whether teen pregnancy had any
explanatory power over poverty. Some critics argued that perhaps poverty is
the better explanatory variable of unwed teen pregnancies, that the causal
arrows point in the opposite directions legislators assumed, and that targeting
poverty to reduce teen pregnancy might have been more effective than
targeting teen pregnancy to reduce poverty.65
Increased prosecution of men for statutory rape, harsher sentences, and
retargeted funding coincided with the gutting of other social welfare programs,
childcare services, and parent and job training programs. The 1990s
refocalization of statutory rape prosecution and enforcement framed teenage
pregnancy as (evidence of) a crime rather than as a public health concern or
propellant of social inequality. So too, federal and state legislative attention
characterized poor teenage girls of color as saps on government spending
and/or victims to predatory men of color. Cumulatively, this has led many
feminist scholars and legal theorists to object to these reforms as efforts to
supervise and regulate the bodies of young black and brown women,67 to
incarcerate black and brown men, and to drastically shrink social services,69
under the guise of reducing poverty and protecting girls.
B. Contemporary U.S. Age of Consent Statutes
Currently, laws vary state by state and are quite complicated; generally,
they retain the structure of the 1970s reforms and have been amplified (with
regards to both sentencing and enforcement) through the 1990s reforms. Most
states follow a two-tier system. 70 A person over a certain age, usually sixteen or
eighteen, who engages in sexual activity with a younger person, usually under
the age of twelve or thirteen, commits a "first-tier" crime of first degree rape or
63. Hollenberg, supra note 42, at 271.
64. Id. at 269.
65. Id. at 272; see also Oliveri, supra note 62, at 508.
66. Hollenberg, supra note 42, at 268.
67. See, e.g., COCCA, supra note 20, at 93-128; DOROTHY ROBERTS, KILLING THE BLACK BODY:
Bulidaggers, and Welfare Queens: The Radical Potential of Queer Politics?, 3 GLQ: J. LESBIAN & GAY
STUD. 437,455-56 (1997).
68. See, e.g., Richard Delgado, No: Selective Enforcement Targets 'Unpopular' Men, 82 A.B.A. J.
87 (1996).
69. See, e.g., ROBERTS, supra note 67, at 217; Duggan, supra note 59; Smith, supra note 55.
70. Oberman, supra note 34, at 761.
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sexual assault;7 a "second-tier" crime of a lesser degree is committed when a
person engages in sexual activity with someone under (most commonly) the
age of sixteen.72 Second-tier offenses are popularly understood as "statutory
rape," and first-tier offenses as "child sexual abuse," although "statutory rape"
is not typically the name of the charge in criminal codes.73 In a few states, a
second-tier offense is committed when a person of any age has sex with
someone under the age of consent.7 In most states, the perpetrator must be a
specific number of years older than the victim (age-span provisions).75
Age of consent statutes have a politically complicated and contentious
history, sometimes securing the proprietary transfer of young girls from their
fathers to their husbands, sometimes reflecting dominant mores of gender and
sexuality, sometimes recognizing the structural vulnerability of young people,
and sometimes leveraged as a club against unpopular minorities. Most often,
the laws reflect all these political investments, and whatever normative
propellant inspired the reform is attenuated, co-opted, or supplemented by
additional political interests. 7 6 I have recounted the social and juridical history
of age of consent statutes and their contemporary formulations in order to
illustrate the conflicted arrangement of youth, sex, and coercion manifest in
U.S. law, and to map out the difficulties presented in the project of rethinking
regulation. States have different age thresholds and varied age-span
differentials; objectives of age of consent laws are progressive, protective,
and/or paternalistic; and the imagined impressionability and innocence of youth
make them symbolically exploitable for conservative political projects.
The reforms outlined in the following sections-as well as the principle
mobilizing them-are therefore not intended as a cure-all to be uniformly
superimposed over states' criminal or civil codes, as if these codes are all
equally insufficient, oppressive, etc. Instead, I advocate changes that retain
elements of current law targeting power asymmetry, that reject regressive
figurations of youth and sex, and that protect and promote young people's
sexual choices in the face of structural vulnerability and dependence. I focus
not on how these changes would differentially supplement or supplant current
71. Charles A. Phipps, Children, Adults, Sex, and the Criminal Law: In Search of Reason, 22
SETON HALL LEGIS J. 1, 56-61 (1997).
72. Id. at 61-62 (noting different degrees of offense for sexual contact versus sexual penetration).
73. Id. at 4 n.3.
74. In twelve states, sexual activity between minors is a crime, and in several of those states it is a
felony. Phipps, supra note 46, at 444 (listing current age of consent statutes).
75. Id. at 390.
76. See COCCA, supra note 20. On the more generalized marshalling of children's assumed
innocence and vulnerability to invigorate conservative political projects, see generally Lisa Duggan,
Queering the State, 39 Soc. TEXT 1 (1994); Gordon, supra note 44; Patrick McCreery, Beyond Gay:
"Deviant" Sex and the Politics of the ENDA Workplace, 61 SOC. TEXT 39 (1999): Gayle S. Rubin,
Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in THE LESBIAN AND GAY
STUDIES READER 3 (Henry Abelove, Michele Aina Barale & David M. Halperin eds., 1993). See also
supra note 53.
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statutes, but offer them instead to generate a more careful, capacious vision of
the law and its relation to youth, power, and sexual autonomy.
In Part III of this article, I propose reforms to extant age of consent
statutes, and delineate justifications for these reforms, utilizing empirical
research, statutes, case law, and legal theorists' contributions. As referred to
earlier, sexual autonomy is the principle that underlies the suggested reforms;
here, I explain what Stephen Schulhofer understands sexual autonomy to entail,
what I retain from that understanding, what tenets I disregard, and why I
disregard them.
A. What Sexual Autonomy Entails
What holds greatest normative purchase in Schulhofer's account of sexual
autonomy is its centralization of infringement on choice as paramount in
determining what constitutes a sexual wrong. The idea of sexual autonomy
offers a way for law and legal theorizing to deemphasize sexual violations as
violations of the body alone. "Sexual autonomy" helps us avoid two persistent
juridical embroilments: sacralizing (and consequently pacifying) the (female)
body, and overdetermining "proper" levels of force and/or consent. The
following explication of Schulhofer's analysis illustrates why the protection of
choice is a more productive normative framework with which to consider
young people and their relation to sex, sexuality, and each other. However, and
despite himself, at moments Schulhofer privileges the body and specializes sex,
which I suggest is a fraught maneuver for theorizing questions of sex and
power, particularly in relation to young people, for whom "innocence" and
"incapacity" are reigning cultural metaphors.77
In Taking Sexual Autonomy Seriously and Unwanted Sex, Schulhofer
develops an understanding of sexual autonomy as a set of entitlement rights
that hold open, foster, and protect sexual choices. The need for a legal principle
of sexual autonomy arises, he argues, on account of deficiencies in sexual
abuse and assault laws, and in the face of limited success in prosecution arising
77. See infra Part Ib.
78. Stephen J. Schulhofer, Taking Sexual Autonomy Seriously: Rape Law and Beyond, 11 L. &
PHIL. 35 (1992).
OF LAW (1998).
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from feminist reforms.80 Since both sex law and feminist reforms to sex law
have focused primarily on the issues of nonconsent and force, too many
coercive-but nominally consensual-sexual encounters fall through juridical
cracks.8 Rather than determining if there was "enough force" in the sexual
encounter to make it criminal, or if there was "enough resistance" to determine
nonconsent, the law-and the rest of us-ought to take a more comprehensive
view of sexual encounters, asking if the context, the relation between the
persons, and the facts of the case seem to undermine sexual choice, or promote
freer decision-making. 82 The notion of sexual autonomy allows the law to more
83 lt e carefully treat threats and offers made conditional on sex, and to regulate sex
in professional, familial, or other relationship forms where the validity of
consent is questionable. 84 Schulhofer persuasively argues that incorporating
sexual autonomy under the law is more practical and philosophically consistent
than attempting to expand the legal definition of force to encompass more than
violence against the body and threats of bodily injury and death. To concretize
the distinction: one way of arguing that sex between a psychotherapist and her
patient ought to be legally impermissible is to insist that the professional
relation itself is a form of force that compels consent, or that the patient is not
"really" consenting on account of something like false consciousness. The
problem with such arguments, Schulhofer insists, is that stretching "force" this
far renders it meaningless, or collapses distinctions the law should not collapse,
namely, between this situation and the stranger with a knife at a woman's
throat.85 So too-and this is more my point than his-the patient does consent,
so making the sex legally nonconsensual consequently dismisses the desire of
the patient, ironically reproducing the coerciveness of which it accuses the
defendant.86 Instead, arguing from a baseline commitment to sexual autonomy,
the law can justify regulating sex by presuming that the sexual choices or
choice structure of the patient cannot be adequately guaranteed on account of
the structural vulnerability that defines the relationship: it is not consent that is
at issue, but rather the asymmetry which marks consent as an unacceptably
ambiguous metric.87 We cannot know if she consents, which makes consent
less useful. Similarly, the professional services offered in the relationship
80. Id.at38.
81. Id. at 267-73. Both Schulhofer and Oberman document several disturbing cases in which
women or girls unwillingly submitted to sexual activity, but whose unwilling submission legally counted
as consent. See id. at 1-16; infra text accompanying notes 169-173.
82. SCHULHOFER, supra note 79, at 103.
83. ll4-67.
84. Id. at 168-253.
85. Schulhofer, supra note 78, at 55-58.
86. See SCHULHOFER, supra note 79, at 226; see also Laurie Schaffner, Capacity, Consent, and the
(Elizabeth Bernstein & Laurie Schaffner eds., 2005).
87. See Schulhofer, supra note 78, at 81-84.
2010] 295
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should not be contingent upon sex between the partners, a possibility that
cannot be checked should the sex be unequivocally permissible.88
Incidentally, Schulhofer's advocacy for more robust standards of sexual
consent also rely on his commitment to sexual autonomy.89 Schulhofer outlines
a number of rape cases where defendants were cleared in which women were
threatened but did not resist, or did resist but not enough to count legally, or
resisted but then acquiesced, or were so financially dependent on defendants
that they could not reasonably resist.90 None of these cases can be construed as
respecting the sexual autonomy of the victim, and a legal schema that did
respect the sexual autonomy of the victim, that considered her choices and
desires protectable, would require a more exacting standard of consent which
signals, at the least, some volitional attachment to the sex one is having.91
The moral valuing of "autonomy" quickly triggers some hefty
philosophical objections. The most significant and perhaps best-known
criticism is that the notion of "autonomous subjects" presupposes an
undifferentiated, unmoored person who is rational and deliberative. 92 The
concept, particularly in the realm of sexuality, may be unfortunately complicit
with the culturally compulsory figure of a unitary, consolidated psychic subject
whose desire is unidirectional. Autonomy belies our fundamental (but
racially, economically, sexually, etc. differentiated) dependence on others, it
belies the confluence of forces that influence our decisions and selfunderstanding.
94 Similarly, autonomy makes the unit of analysis the individual
at the expense of group life, communal relations, or structural modes of
exclusion or inequality that cannot be accounted for through a localized defense
88. Id. at 84-87.
89. Id. at 75.
90. SCHULHOFER, supra note 79, at 33-38, 75, 77-78.
91. Id. at 280; see also Martha Chamallas, Consent, Equality, and the Legal Control of Sexual
Conduct, 61 S. CAL. L. REv. 777, 836 (1987-1988) ("By redefining consent to mean welcomeness [the
determinative standard of workplace sexual harassment liability] from the target's viewpoint, we can
begin to incorporate the interests of women in the formulation of a legal standard.").
POSTMODERNISM IN CONTEMPORARY ETHICS 161-68, 170 (1993) ("The ideal of autonomy in
universalistic moral theories from the social contract tradition . . . is based upon an implicit politics
which defines the 'personal' . . . as ahistorical, immutable and unchanging, thereby removing it from
discussion and reflexion. Needs, interests, as well as emotions and affects, are then considered properties
of individuals which moral philosophy recoils from examining on the grounds that it may interfere with
the autonomy of the sovereign self."); FINEMAN, supra note 55; MICHAEL J. SANDEL, LIBERALISM AND
93. For accounts of the different but nonetheless destructive political consequences provoked
through individual and collective attachments to desire as unidirectional, gender-object-oriented, and
(1997); Leo Bersani, Is the Rectum a Grave?, 43 AIDS: CULTURAL ANALYSIS/CULTURAL ACTIVISM
197, 220-22 (1987).
(1990) (arguing that theories ofjustice which privilege the individual instead of communities, and which
model the equitable distribution of goods without analyzing systems of distribution or cultural processes
of recognition and interpretation, overlook how persons see themselves and others in foundationally
communal terms).
296 [Vol. 22:2
2010] Per Se or Power? Age and Sexual Consent 297
of the deliberating person.95 But sexual autonomy need not get mired in
problems connected to high liberal theories of the person:
Legal protection of autonomous choice has a narrower objective [than the
proposals of feminist legal theorists like Chamallas and Pineau, who
argue for some form of mutuality standard], to permit individuals to act
freely on their own unconstrained conception of what their bodies and
their sexual capacities are for. This approach need not imply a naYve,
laissez-faire liberalism blind to the inequalities of wealth and power. On
the contrary, the objective is to protect individuals from real-world
conditions that constrain freedom of choice, without dictating how that
freedom can be used.96
Sexual autonomy need not assume that we all come to the table-or bedas
unencumbered free agents. Instead, it can attempt to recognize differentiated
relations of dependence, and to theorize acceptable and unacceptable forms of
interference in the realm of sexual decision-making, without prescribing what
good sex should look like. The autonomy here is not an ontological truth of the
human, 97 but a guiding, revisable principle that recognizes available choices
and checks certain constrictions on those choices.
So too, if we interpret sexual autonomy as but one formal precondition of
just sexual arrangements, rather than as the conclusive objective of those
arrangements, we need not eclipse patterned forms of sexual violence, and the
influence of material power on sexual relations.98 Nor, finally, should we set
this autonomy right against relational rights. 99 That sexual autonomy applies to
persons does not mean it does so in vacuo, but rather in order to secure and
foster their desired relations.
B. What Sexual Autonomy Need Not and Should Not Entail
As Schulhofer explicates sexual autonomy, the precept need not sanctify
sex as a good that trumps all others, nor must it valorize the separateness and
95. See YOUNG, supra note 94; see also Lynn M. Sanders, Against Deliberation, 25 POL. THEORY
347 (1997).
96. Schulhofer, supra note 78, at 70.
97. Id.
98. See Martha C. Nussbaum, "Whether from Reason or Prejudice": Taking Money for Bodily
Services, 27 J. LEGAL STUD. 693 (1997).
99. See YOUNG, supra note 94, at 25 ("Rights are not fruitfully conceived as possessions. Rights
are relationships, not things; they are institutionally defined rules specifying what people can do in
relation to one another. Rights refer to doing more than having, to social relationships that enable or
constrain action."). Although I am not sure she will be convinced by the compatibility I suggest between
autonomy and relational sex rights, I thank Lauren Berlant for drawing my attention to this analytic
Yale Journal of Law and Feminism
sanctity of the body as a treasured artifact. Unfortunately, Schulhofer sanctifies
both sex and the body:
Few of our other personal rights and liberties, perhaps only our right to life
itself, are as important as our right to decide whether and when we will
become sexually intimate with another person. 00 A second dimension of
autonomy is also important. The core concept of personhood inherent in
the common law . .. implies a physical boundary, the bodily integrity of
the individual. Autonomy therefore, is not only the moral and intellectual,
not only the capacity to choose. It is also physical, the distinctive
separateness of the corporal person. 101
For the purposes of both criminal law reform and normative legal
theorizing, I suggest we reject these premiums placed on sex and body. Sexual
intimacy and intimate decisions may or may not be monumentally important to
the individual, but there is something uncompromising about nominating sex
rights so special by flat, and in presuming that the special status of sex arises
primordially, absent history and discourse.102 By positioning sex rights as
second only to life itself, we amplify the harm resultant in the violation of that
right by interpretation. When sex is discursively constructed to be as special as
life, and when the violation of sex rights are discursively constructed as a fate
worse than death, this sociojuridical description animates and then redoubles
the severity of the pain and harm it hopes to dispel. 0 3 The sacralization of sex
and body undermines the normative utility of sexual autonomy. Schulhofer
himself developed his version of sexual autonomy as a way to identify and then
minimize the problems of sexual coercion not reducible to bodily violation. In
fact, as Sharon Marcus and others have provocatively argued, when rape law or
legal theory imagines the body as pristine, separate, and distinct, this figured
body is complicit with rather than resistant to rape culture.' Such a body is
100. SCHULHOFER, supra note 79, at 100.
101. Schulhofer, supra note 78, at 71.
102. See generally FOUCAULT, supra note 16; MICHEL FOUCAULT, POWER/KNOWLEDGE:
SELECTED INTERVIEWS AND OTHER WRITINGS, 1972-77, at 56-57 (1980) ("But sexuality, through thus
becoming an object of analysis and concern, surveillance and control, engenders at the same time an
intensification of each individual's desire for, in and over his body.").
346 (2006) ("So much feminist rape discourse insists on women's objectlike status in the rape situation:
man fucks woman-subject verb object. Could feminism be contributing to, rather than resisting, the
alienation of women from their own agency in narratives and events of sexual violence? . . . Oddly,
representing women as end points of pain, imagining them as lacking the agency to cause harm to others
and particularly to harm men, feminists refuse also to see women-even injured ones-as powerful
104. Sharon Marcus, Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention,
in FEMINISTS THEORIZE THE POLITICAL 385, 400 (Judith Butler & Joan W. Scott eds., 1992) ("I have
argued against understanding rape as the forced entry of a real inner space and for considering it as a
form of invagination in which rape scripts the female body as a wounded inner space .. .. Rape exists
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Per Se or Power? Age and Sexual Consent
without agency, a feminized and passive treasure, a temple whose only function
is to await pollution, a body that is "already raped" or "already rapable."105
The problem, I believe, is reinforced in the case of young people, whose
bodies are culturally apprehended as either pure and therefore imminently
contaminable, or as already sexualized and therefore not salvageable. When the
problem of young people and their relations is sociolegally reduced to the
problem of preserving bodies from sex rather than protecting choices within
existing inequalities of power, the target becomes sex and its presumptive
interference with innocence, rather than exploitation or manipulations of
dependence. 106
None of the remarks here are to suggest that rape is not harmful, that it
does not harm the body, or that sexual violence against the body is not
experienced traumatically or as singularly disturbing. But theorizing sexual
harm as a constriction on choice, as an external imposition against or willful
negligence towards desire, or as potentially manifest in structural relations of
dependence, allows one to take sex rights seriously without the pitfalls of
specializing sex for everyone, a priori determining sexual harm to be the worst
kind,107 or discursively building up the body as a temple awaiting its
defacement (women) or defilement (children).
Let me clarify then two points of contrast between Schulhofer's
perspective on sexual autonomy and my respectful appropriation of that
perspective. First, while it is necessary to enlarge our perspective on sexual
harm in order to incorporate constraint on choice, a recursive valorizing of
corporeality and sex risks replacing the legal figure of a desiring, volitional
subject with the figure of an always endangered, passive one. Second, and
consequently, Schulhofer's sexual autonomy ultimately overdetermines sexual
noninterference-the right to say no, to not be violated, to not have "unwanted
sex." These rights are indispensable, but another promising feature of sexual
autonomy as I see it is the right to desire, to have wanted sex-provided factors
of coercion and constraint are accounted for. Articulating a right to make
because our experience and deployment of our bodies is the effect of interpretations, representations,
and fantasies which often position us in ways amenable to the realization of the rape script: as paralyzed,
as incapable of physical violence, as fearful.").
105. Id. at 386; see also JUDITH BUTLER, BODIES THAT MATTER 29 (1993) ("We may seek to
return to matter as prior to discourse to ground our claims about sexual difference only to discover that
matter is filly sedimented with discourses on sex and sexuality that prefigure and constrain the uses to
which that term can be put. Moreover, we may seek recourse to matter in order to ground or to verify a
set of injuries or violations only to find that matter itself is founded through a set of violations, ones
which are unwittingly repeated in the contemporary invocation.").
(surveying the uneven development of British child pornography and sexual grooming laws, and arguing
that innocence and communal standards of decency have too often been the foci of protective attention,
rather than the minimization of coercion and exploitation of children).
107. Id. at 140 ("There is also a need to avoid the over-prioritization of sexual exploitation above
other forms of harmful misuse of children.") (citations omitted).
2010] 299
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sexual decisions is more feasible when we resist attributing to sex and body
positions of privileged passivity.
If sexual autonomy is a right to which we are entitled, if the right entails
the holding open and fostering of choices, as well as respect for choices already
made or to be made, and if a commitment to sexual autonomy guided legal
reform and legal theorizing in the realm of age and sexual consent, what might
such reforms look like?
A. Lowering the Age of Consent, Decriminalizing Sex Between Minors
Foremost, a commitment to sexual autonomy advises lowering ages of
sexual consent in jurisdictions where the age threshold is significantly higher
than the age at which the majority of adolescents are having sex. So too, sexual
autonomy demands that jurisdictions which criminalize sex between minors of
the same age repeal such statutes.
The median age of consent in the United States is sixteen. 1o In some
states, however, the age of consent is seventeen or eighteen.10 9 While most
states now have age-span provisions (as discussed previously), some do not,
and others have narrow age-span provisions.110 Functionally, this means that in
several states minors commit a crime when they have sex with one another, as
each has sex with someone under the age of consent." Criminalizing sexual
activity among minors condemns sex, not coercion; dampens the sexual
autonomy of young people; and disrespects their choices.112 If many or mostll3
young people are first having sex while below the age of consent, our social
and legal obligation is not to penalize the sex-making it more difficult for
teenagers to report coercion-but to protect young people's choices, desires,
and safety. We fail this obligation if we criminalize teenagers for having sex.
108. Oberman, supra note 22, at 809.
109. In California, for example, sexual contact with someone under eighteen is a crime, unless the
partners are married. CAL. PENAL CODE § 261.5(a) (2010); Phipps, supra note 46, at 444. The marriage
exemption, of course, generally preempts same-sex sexual activity from such an affirmative defense
(and assumes a seventeen-year-old can reason enough to marry, but not to have sex).
110. In Utah and Ohio, for example, an eighteen-year-old can be criminally liable for sexual
contact with a fifteen-year-old. OHio REV. CODE ANN. § 2907.04(A) (2010); UTAH CODE ANN. § 76-5-
406(11) (2010).
111. See supra note 74.
112. See OST,supra note 106.
113. Based on a 1994 Allan Guttmacher Institute study, Oberman reports that most U.S. teenagers
have had sex, so there are "potentially millions of statutory rapes every year." Oberman, supra note 22,
at 809. But see Phipps, supra note 46, at 393 (suggesting that a more nuanced study of criminal sex laws
would reveal that most sexually active teens are above statutory age thresholds). For a more recent study
on the sexual activity of teenagers, see infra note 122.
300 [Vol. 22:2
2010] Per Se or Power? Age and Sexual Consent 301
Meanwhile, where some jurisdictions treat minors who have consensual sex as
incapable children, they concomitantly sentence them as culpable adults when
they commit crimes. 114 The sociolegal impulse here is punitive rather than
protective: adolescents are incapable children when they have sex, but
deliberative, intentional adults when they commit crimes. Also, insofar as black
male youth are disproportionately transferred to criminal court," 5 and insofar
as age of consent statutes are and have been disproportionately enforced against
black men and gay men,"6 criminal law in the areas of sexual proscriptions and
sentencing is more plausibly rendered as a conduit and codification of racism
and homophobia.117
I am not particularly wedded to fixing the age of consent-which should
probably be called something like the age of sexual majority or sexual
citizenship" 8
-- once and for all. Indeed, as the rest of this article suggests, such
fixation on fixity reinscribes volitional youth as ontologically incompetent,
deflects attention from relations of power and dependency in young people's
lives that constrain consent's transformative force, ignores the sociological and
educational contexts that influence young people's sexual decisions and
decision-making capacities, 1 9 and smoothes out important differences between
heterosexuality and queer sexualities,120 and perhaps differences between
sexual acts. 121 Nonetheless, given the prevalence of teen sex, the number of
young people who first have sex with older partners, 122 the developing
114. Schaffner, supra note 86.
115. Donna M. Bishop, Juvenile Offenders in the Adult Criminal Justice System, 27 CRIME & JUST.
81, 102-04 (2000); Schaffner, supra note 86.
116. See supra text accompanying notes 44-45, 68-69.
117. Id.
118. Age of consent laws clearly cannot and do not locate the transformative moment, sixteen years
after the day of one's birth, where a person may meaningfully consent to sexual activity. Rather,
"definitions of age of consent laws can be conceived as articulations of particular degrees and forms of
citizenship granted to specific social groups (defined, for example, by gender, sexuality and age) by
states . . . . Perspectives on age of consent laws are structured in relation to broader debates over
citizenship, concerning issues including the appropriate role of law in relation to collective morality; the
balance between majority preferences and minority freedoms; the balance between the equality and
liberty of individuals; the definition of 'rights' including 'human rights' and the scope of privacy; and
the distribution of power between men and women, and between groups with particular sexual
37-38 (2005) (citations omitted).
119. Id.at29,212.
120. Id. at 211-12; see infra text accompanying notes 305-318.
121. States generally distinguish crimes of sexual penetration with a minor from sexual contact
with a minor, penalizing the former more heavily. Phipps, supra note 71, at 43-47. That said, popular
discussion ("what's the age of consent in Illinois?") obscures these nuances. Although such criminal
gradations may be somewhat commendable under the rubric of sexual autonomy-recognizing the
diversity of sexual experiences and contacts, intimating differentiated degrees of violation-the statutes
portray a manifestly phallocentric and heteronormative account of sex. Penetration (with a penis) is the
real deal, the other stuff is foreplay, or child's play. See also Michael J. Higdon, Queer Teens and
Legislative Bullies: The Cruel and Invidious Discrimination Behind Heterosexist Statutory Rape Laws,
42 U.C. DAVIS L. REV. 195 (2008).
(2010), available at ("Nearly half (46%) of all 15- 19-
Yale Journal of Law and Feminism
reasoning of many young people, 123 and the particular regulatory pressure the
formally neutral law places on young queer peoplel 24 and racial minorities in
their social/sexual choices, the age of consent should probably be lowered from
its most common current range of sixteen to eighteen, to something closer to
twelve or fourteen, with age-span provisions for younger teenagers between
twelve and sixteen.125 However, unlike Heidi Kitrosser, I resist the notion that
nonconsent ought to be the rebuttable presumption of sexual activity within
these age spans, challengeable by an affirmative consent defense.' 2 6 If this sex
is guilty until proven innocent, it will, by prosecutorial and police enforcement,
be black and gay men who are found guilty, and white suburban teens who are
let off the hook; the sexual/social relations forged against background hostility
will be retargeted, while sex among white youth will be presumptively
noncoercive.12 7
Before addressing two objections to lowering the age of consent-the
presumptive sexual incapacity of minors, and the presumptive sexual
vulnerability of girls-I should pause to more carefully explain how this article
is both deeply indebted to and departs from the arguments made by Heidi
Kitrosser, referenced above, in Meaningful Consent. Toward a New Generation
of Statutory Rape Laws. Many of the suggestions put forth here are similar to
those Kitrosser proffered over a decade ago: specifically, defining an
affirmative standard of consent for sex involving minors, and more stringently
regulating sex in age-discrepant relations of dependence and trust.'28 She
successfully evidences the conditions of vulnerability unique to minors
(particularly girls) as a class that warrant her (and my) revisions.129
Despite our substantial areas of overlap, however, at least three lines of
Kitrosser's argument remain troubling from the perspective of sexual
autonomy. First, as just mentioned, Kitrosser asks the law to treat all sex
between minors as illegal, but an affirmative defense of consent may challenge
a rebuttable presumption of nonconsent. For those jurisdictions in which sex
between minors would be reclassified from strictly criminal without the
possibility of rebuttal to presumptively criminal with the possibility of rebuttal,
year-olds in the United States have had sex at least once . . . . The majority (59%) of sexually
experienced teen females had a first sexual partner who was 1-3 years their senior."). However, the
study also finds that most younger teens, under age seventeen, have not had sex.
123. Despite contextual factors such as education and experience that influence young people's
decision-making capabilities, studies indicate that teenagers possess the necessary logical and abstract
reasoning skills to make their own medical and sexual choices. See Cohen, supra note 1, at 730.
124. See Higdon, supra note 121.
125. State laws are moving in this direction, as Part I explains. See also Phipps, supra note 46, at
126. Heidi Kitrosser, Meaningful Consent: Toward a New Generation of Statutory Rape Laws, 4
VA. J. SOC. POL'Y & L. 287, 330-33 (1996).
127. See COCCA, supra note 20, at 136-38.
128. Kitrosser, supra note 126, at 329-30, 333-34.
129. Id. at 323-26.
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this is a welcome change. But this begs the question: why is the sex
criminalized from the start? Kitrosser herself suggests the law should punish
coercion, not sex, so why make sex guilty until proven otherwise? o30 If the
consent standard is an affirmative one, the defendant charged with sexual
assault must prove that the plaintiff willingly agreed to sexual activity. 1 This
should be adequate enough, without criminalizing minor sex wholesale.
Second, Kitrosser insists that restrictions on sex in relations of dependence
and the rebuttable presumption of nonconsent are both justified because in each
situation the consent of the minor subject is allegedly not meaningful: either
she does not know what she is doing or she is coerced into doing what she
does. In the absence of a principle like sexual autonomy, Kitrosser must either
advance expanding definitions of force to capture asymmetrical relations, or
question the validity of minors' and/or dependents' consent. But relations of
dependence need not be "criminally coercive" for the sex in those relations to
be regulated.132 By focusing on infringements of choice and choice structure,
relations may be regulated without attributing by legal designation an inherent
incapacity to consent, and without therefore marking the minor as coerced or
violated preemptively. 133
Third, at moments in her article, Kitrosser treats minors as a Trojan Horse
to restructure rape laws more generally, for adults. Her proposals, she suggests,
would ideally be incorporated throughout all rape law, and she surmises that
statutory changes addressing the unique vulnerability of minors could compel
legislators to overhaul rape law for everyone.134 Kitrosser too quickly assumes
that children are simply vulnerable like women but doubly so, and that changes
in law-and social responses to those changes-will all operate evenly over
different subpopulations. Ironically, her maneuver potentially objectifies
children and childhood to marshal political and legal change for adults, a
questionable move to advance the sexual rights of young people.135
1. Objection: Children Are Incapable of Consent
Scholars from many disciplines have documented how innocence and
(concomitantly) incompetence are the pervasive tropes of childhood in modern
and late modem Western societies (tropes to which Kitrosser intermittently but
130. Id. at 323.
131. See infra Part 1ild.
132. Kitrosser, supra note 126, at 321.
133. See infra text accompanying notes 217-218.
134. Kitrosser, supra note 126, at 309, 329-30.
135. On the portrayal of wounded children to affect public opinion, see PATRICIA HOLLAND,
Wark, Fresh MaimedBabies, 65 TRANSITIONS 36 (1995).
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unfortunately takes recourse). 36 And while such tropes are always inflected
through other social divisions (the skewed racial allocation of innocence, for
example, where the white girl is endangered and the black boy is endangering;
or the media whitening of children of color to look innocent, or the persistent
portrayal of children of color as a threat to white innocence),13 7 it is the
presumptive innocence and incompetence of children and childhood which
news programs, talk shows, legislators, judges, and lobbyists extol (and lament
the loss of) when calling for greater protections for youth or harsher
punishments for those desiring them.13 8
A central argument of this article is that lodged in the objection of
constitutional incapacity (she is just a kid!) is dualistic thinking that is
damaging to young people and sexual autonomy, and that precludes a more
nuanced understanding of power and its legitimate and illegitimate injection
into sexual relations. In response to this objection, I suggest that we think of
consent as a spectrum instead of a switch. From childhood to adolescence to
adulthood, the guiding metric of sexual consent ought to gradually shift focus
from capacity to voluntariness; currently, some age of consent laws suppose a
clean division between incapable children and volitional adults.139 Before
attempting to exposit a more nuanced understanding of consent (a sliding scale
from capacity towards voluntariness as age increases) in relation to young
sexual subjects, I want to cut off two potential challenges preemptively. First,
this article is only considering young people in the United States, statistically
sexually active or almost sexually active, confronting sexual decisions. I am not
considering those subjects under "tier 1" law, usually children under twelve, 40
as we can reasonably assume that capacity is and ought to be a guiding legal
metric here, not only on cognitive or developmental grounds, but on the
ARCHARD, SEXUAL CONSENT 118 (1997) [hereinafter ARCHARD, SEXUAL CONSENT] ("[I]t does seem
true that we-as in we of the modem Western world-have a particular understanding of childhood as a
period of incompetence and innocence."); JAMES R. KINCAID, EROTIC INNOCENCE: THE CULTURE OF
CHILD MOLESTING 14-17, 53-56 (1998); OST, supra note 106, at 12-15, 183-86; Jenny Kitzinger,
Defending Innocence: Ideologies of Childhood, 28 FEMINIST REV. 77 (1988).
137. On ways media makes and unmakes the innocence of children of color, see generally
KINCAID, supra note 136, at 20 ("[C]hildren of color find themselves blanched to ungodly sallowness.");
KATHRYN BOND STOCKTON, THE QUEER CHILD 31-33, 207-14 (2009). On the cultural withholding of
innocence to children of color, see ROBERTS, supra note 67, at 21. For an account of how racialized
innocence informs public school safer sex education, see Jessica Fields, "Children Having Children":
Race, Innocence, and Sexuality Education, 52 Soc. PROBS. 549 (2005).
OF SEXUAL VIOLENCE AGAINST CHILDREN (2004); OST, supra note 106, at 180-91; Kitzinger, supra
note 136; Pamela D. Schultz, Naming, Blaming and Framing: Moral Panic over Child Molesters and Its
(Charles Krinsky ed., 2008).
139. On the political and political theoretic origins of this division, see generally HOLLY BREWER,
140. See supra text accompanying notes 70-74.
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presumption that sexual knowledge and information is seriously limited. 14 1
Thus, I do not believe consent should be an affirmative defense for sexual
relations with tier 1 children. This invites the second challenge: despite the
pastiche attached to developmental psychology, neuroscience, or just science
generally, I place very little emphasis on discovering a neurological moment
when young people fully understand sex, their sexual choices, and the
ramifications of sex acts, because there is enough sociological evidence that
such a moment is illusory; education, safer sex education, resources, gender,
regional location, family dynamics, and politics all mediate, dampen, empower,
or in other ways give shape to a young person's sexual agency and her ability
to consent. 142
To discuss the normative shift from capacity to volition in greater detail, I
focus on two legal theorists' analyses of age and sexual consent, those of David
Archardl 4 3 and Michelle Oberman,'" despite a stronger political theoretic
affinity with Schulhofer's arguments for rethinking legal regulations around
sex.14 5 This is because, surprisingly, Schulhofer does not investigate age, age
difference, and constraints on choice, and Archard and Oberman do. Despite an
otherwise prescient comment that age of consent statutes often neglect power
relations by collapsing power inequality into a line-drawing game,146
Schulhofer repeatedly writes off the sexual consent of a hypothetical fifteenyear-old
as meaningless, on the ungrounded rationale of presumed incapacity,
therefore perpetuating the deficiency of the statutes he questions. 14 7
In Sexual Consent, David Archard unpacks what he calls the "common
view" that consent, and only consent, morally legitimizes sexual activity. His
book attempts to understand what consent means under different contexts, and
why and if it is morally transformative. I start with Sexual Consent because
Archard's treatment of questions around sex and youth provides much of the
architecture for the remainder of this Article. Specifically, I develop three of
141. See WAITES, supra note 118, at 233.
142. Id. at 12-13; 177-78.
143. ARCHARD, SEXUAL CONSENT, supra note 136.
144. Oberman, supra note 22; Oberman, supra note 34; Oberman, supra note 25.
145. See supra Part II.
146. SCHULHOFER, supra note 79, at 196 ("[Many] states focus on maturity (age) as the sole
measure of capacity to consent, ignoring the problems of power that arise when an adolescent and her
sexual partner are not contemporaries.").
147. Id. at 102 ("[I]ntercourse with an apparently willing fifteen-year-old or with a mentally
incompetent woman is not prohibited because the man is a potential killer; it is prohibited because the
preconditions for meaningful choice are absent."). Although Schulhofer stages the teen and the
incompetent to advance his argument for an expanded legal understanding of sexual violation, he
unfortunately throws them both under the bus to do so-both are declared unilaterally and equivalently
incapable of decision-making, and both of their desires stand irrelevant to law. I incorporate
Schulhofer's insights when I consider the potential objections raised against regulating relations of
dependence between minors and adults and against creating an affirmative sexual consent standard for
young people. See infra text accompanying notes 217-218, 237-246.
148. ARCHARD, SEXUAL CONSENT, supra note 136, at 1.
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the factors he takes to be pertinent in evaluating youth and sexual relationsage,
age difference, and special relationships -49and then add another, an
affirmative standard of consent for sex between youth and between youth and
Archard is sensitive to cultural narratives that underwrite modem
understandings of childhood and sexuality. He recognizes how the ubiquitous
image of childhood innocence works at once to sexualize children and to deny
them any sexual agency and decision-making capabilities. "A child's innocence
is rather like the purity of the virginal woman which is the object of a certain
male sexual desire-attractive for being that which is not yet but can be
corrupted."150 Accordingly, argues Archard, "a child is deemed incapable of
offering real consent, and abuse is frequently defined in terms of an
exploitation of that very fact."15' Thus, child sexuality is often read as child
sexual abuse, without nuance for age, age difference, sexual practices, the
relationship of the persons involved, and any other factors relevant to the
encounter or relationship. 152 The project of pinpointing standards for sexual
relations across age is complicated indeed if the law, media sensationalism, and
eroticized myths of innocence re-sexualize the very children needing
protection, and demonize the adults who apparently desire them.'5 3 Against
such a saturated backdrop, Archard teases out what he takes to be morally
significant in defending and determining age of consent laws.
First, though, Archard proposes that the three central criteria implicit in the
"standard account" of meaningful sexual consent (for all people, youth and
adults) are: voluntariness, knowledge, and capacity.' 54 We should want to do
what we are doing free of specific pressures and constraints (voluntariness), we
should understand what it is that we are doing (knowledge-in the literal sense,
as in knowing a penis and not a medical instrument is the object of
insertion), 55 and we ought to have the cognitive wherewithal-to be sober, not
severely mentally handicapped-to make sexual decisions (capacity). On
Archard's first attempt, childhood looks like mental disability: "A child is
judged to lack the capacity of an adult but not to be permanently disabled in
149. Id. at 120.
150. Id. at 119.
151. Id. at 117.
152. Id.; see also KINCAID, supra note 136, at 74-82; WAITES, supra note 118, at 24-28.
153. See KINCAID, supra note 136; see generally LAURA KIPNIS, BOUND AND GAGGED:
MINORS: THE PERILS OF PROTECTING CHILDREN FROM SEX 20-44 (2002). That I suggest affirmative
consent ought not to function as a defense for sex with "tier I" children should not be confused with
propositions that children are not sexual, that pedophilic desire is irredeemably heinous, or even that
pedophilic behavior is always and only morally reprehensible. There are several reasons in the
contemporary United States for legally restricting sex with tier 1 children whether or not such sex is
wrong absolutely,
154. ARCHARD, SEXUAL CONSENT, supra note 136, at 44.
155. Id.at46.
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that she will acquire capacity with age . . . Wherever the age of majority is
fixed, we may presume normal sane adults to be capable of giving their
consent." 56 Childhood is equivalent to a kind of immature insanity or mental
underdevelopment, and so capacity is the criterion that counts. However, in a
later chapter focused explicitly on age of consent, Archard complicates his
assessment. The four evaluative criteria he introduces are "the nature of sexual
activity, the age of the consenting party, the age differential between the
parties, and the existence, if any, of a special relationship between the
parties."' 57 He also argues that local circumstances, particularly the degree of
sexual education and experience among young people, necessarily ought to
influence age of consent law. 158 From these categories it is evident that capacity
is just one of many considerations, and is more or less salient depending on the
specifics of the situation. It is important to contrast the earlier reflections of the
book with the later ones, because it is the myth of eroticized childhood
innocence which Archard himself observes that imagines capacity, or
incapacity, as the singularly relevant factor regarding minor sex and sexuality.
In discussing age differentials between partners, Archard focuses on
situations in which the choices of the younger person are or reasonably seem to
be constricted or unfairly manipulated by another person. Because young
people, particularly girls, may seek validation, respect, or attention from an
idealized older person, they may be willing to engage in sexual activity despite
their not desiring to do so.159 It is their voluntariness that is primarily at issue,
although it is likewise clear that the presumption of underdeveloped capacity is
part of what makes the consent to sex less than voluntary. The "special
relationships" Archard describes are those of institutionalized power
differentials: a father and daughter, an uncle and nephew, a coach and athleterelationships
that often characterize adult-minor sexual activity. In these
156. Id. at 44-45. However, Archard is careful: while he writes that mentally disabled and drunk
people are incapable, Archard uses the passive voice in considering children, intimating that such
incapacity may be a determination of legal positivism and not biological fact. Id. ("The lack of such a
capacity may be permanent, as would be the case with someone who is seriously mentally ill or disabled
. . . a child is judged to lack the capacity of an adult . . . . Clearly a comatose person is not able to
consent to . . . sexual activity.") (emphasis added). Id. at 119 ("[S]exual activity by someone below the
age of majority is characterized as non-consensual.) (emphasis added).
157. Id. at 120. When Archard considers the "nature of sexual activity," he is primarily
commenting on the then-different age of consent laws in Britain for homosexual and heterosexual sexual
activity, and he suggests the legal difference should be abolished (it has), since it has nothing to do with
capacity, knowledge, or voluntariness, but rather homophobia. See also WAITEs, supra note 118, at 166-
82. Waites chronicles the discursive parameters of the political debates in Britain that led to the
equalization of the age of consent to sixteen in 2000. Although supportive of decriminalizing same-sex
sex for teenagers, he is concerned with the tactics that were used for getting there. The "equality" idiom
under which the campaign was waged obscures extralegal hierarchies of sexuality, and the emphasis
placed on the alleged physiological fixity of sexual orientation serves to solidify heterosexuality and
homosexuality as discrete, exhaustive, ontological categories.
158. ARCHARD, SEXUAL CONSENT, supra note 136, at 125.
159. Id. at 126-27; see also Oberman, supra note 22, at 820-21; Oberman, supra note 34, at 725-26;
Oberman, supra note 25, at 63-70.
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relationships, Archard again emphasizes the constraints on a child's choice,
rather than the child's capacities. As for age itself, Archard comments, "what
matters is not just that one can have sex but that one has some understanding or
appreciation of what is involved in having sex."Iso Puberty then is not adequate
as a metric of capable consensuality, but rather an awareness of what one is
doing with one's sex and sexuality. This appears to be straightforwardly about
capacity, but note that Archard is not simply interested in whether a young
person is capable of literally saying yes or no to sex, but whether a young
person understands the physical and emotional ramifications of sexual activity.
This understanding requires education, experience, and knowledge of sexual
life. When the assumption of incapacity justifies the withholding of sexual
education, then young people really are incapable of sex or giving sexual
consent, but because of lack of information, not incapacity per se.161
Archard builds a solid foundation to better theorize age and the question of
sexual consent. Against a cultural imaginary that envisions youth as sexually
incompetent and/or duped sexualized commodities, Archard's distinctions
between capacity and voluntariness recall that different young people, of
different ages, are positioned differently in their relation to sex. Age-span
provisions and "special relationships" are elaborated further in Section 11b,
with an emphasis on voluntariness and choice, rather than capacity.162 As I
have been trying to make clear against the objections of innocence and
incapacity, a moral or juridical insistence on capacity alone ensnares us in
problems analogous to those we encounter in valorizing the body or
specializing sex.
Although I follow Archard's typology, I depart from his reasoning
somewhat: Archard explores primarily how age differences and special
relations may invalidate consent. In contrast, I will suggest that such divisions
in positions of power sideline consent as the central moral or legal metric. And
where Archard suggests that more robust standards of consent may be
appropriate for sexual relations between people relatively unknown to each
other,163 I apply such standards to youth as a legal class of persons. The
normative distinction is that Archard sees affirmative consent as a hedge
against potential and interpersonal forms of coercion; I see affirmative consent
as a hedge against the social structural vulnerabilities and forms of dependence
particular to young people.
160. ARCHARD, SEXUAL CONSENT, supra note 136, at 124.
161. Id. at 125; see LEVINE,supra note 153, at 90-116.
162. See infra text accompanying notes 176-218.
163. ARCHARD, SEXUAL CONSENT, supra note 136, at 37-38.
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2. Objection: A Lowered Age of Consent and the Decriminalization of Sex
Between Minors Will Under-Protect Girls and Condone Sexual
Violence Against Them
A more compelling objection to lowering the age of consent and
decriminalizing sex between minors comes from Michelle Oberman, who is
concerned that such reforms would exacerbate the already subordinate
condition of young girls.16
Oberman offers sociological and psychological studies as well as case law
that illustrate the sexual pressures young women face, the common regret they
share after their first sexual experiences, and the recurring emotional and
physical harms from sexual abuse and early-age sexual activity.,es She
The vulnerability inherent in adolescence, including severely diminished
self-esteem, ambivalence about one's changing body, and a marked
reluctance to assert one's self, leads teenagers to consent to sexual contact
that may not be fully, or even partially, desired. .. . [A] multiplicity of
factors beyond sexual desire and love that lead teenagers to consent to
sex ... [are] fear, confusion, coercion, peer pressure, and a desire for male
attention. 166
Outlining the coercive sexual experiences particular to girls and the legal
failure to prevent these experiences, she proposes her own reforms, among
them "retaining a relatively high age of consent, while simultaneously enlisting
victim cooperation in determining the course that a criminal action will
take." 167 She thus proposes that the age of consent be no lower than sixteen,
and that victims be consulted to determine the appropriate punishment for
perpetrators. For Oberman, law ought to be a social corrective to gender as it
exists for young people, and laws that once commodified girls ought to be
recuperated for their protection.
The major problem with her proposals is that Oberman wants to
criminalize all sex under age sixteen, regardless of the age of the parties or their
desires. Although the "ideal" type of mutually pleasurable sex between
teenagers of the same age is rarely prosecuted, and although Oberman
encourages leniency, reduced sentencing, and/or sexual education programs for
first time offenders of nonviolent, per se crimes, the message is still
unambiguous: sex is bad when you're young, there is always a perpetrator and
164. See Oberman, supra note 22; Oberman, supra note 34; Oberman, supra note 25.
165. Oberman, supra note 34, at 714.
166. Id. at 709.
167. Id. at 778.
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always a victim, and the girl qua girl is always vulnerable, always in need of
state protection from others and herself.16 8
Oberman maintains that a young girl's continued insistence that she wanted
the sexual relations to occur may not exonerate the perpetrator, and this seems
right. Part of the point of Oberman's statutory rape law is to shield young girls
from a socialization process where they "want" to have sex in order to be
respected, validated, and appreciated by men. But in all of her case examples,
the girls were either silent or asked the perpetrator to stop.'69 The boys target
the girls because they are younger, and sequester them to places where they are
alone and cannot reasonably resist.o70 The boys often physically assault the
girls, or advance despite their resistance. '
7 As a critic reviewing her cases
notes, "the members of the Spur Posse committed rape, not statutory rape; the
older adolescents in the Chicago case abused eleven- and twelve-year-old
children; and Joshua Hemme raped two girls." 7 2 Oberman herself admits that it
would be "absurd to consider these encounters consensual."l' What is odd,
then, is that Oberman's evidence against taking a girl's "yes" as "yes"-that
her yes is coerced and thus ought to be discounted- is precisely the times she
has not said yes. The marshaling of coercive teen sex as evidence of a general
unhealthiness of teen sex makes coercive sex seem less problematic (by
defining it as a status crime), and mutually desired sex more suspect.
Oberman's age of consent law criminalizes sex in relations of dependence,
across wide age spans, and sex in the "grey area"-when older teenage boys
make unwelcome sexual advances against teenage girls. But she also aims to
criminalize all mutually desired sex among minors. The line Oberman drawsin
essence the same line that exists now but with a different color-both
overreaches and falls short. She casts too wide a proscriptive net over youth
sexual activity, and in doing so recreates the patriarchal assumptions she seeks
to reverse.174
Like Archard, Oberman largely refuses to consider a more robust standard
of consent for sex between young people and between young people and
adults. 75 It is this refusal that results in an otherwise persuasive call for the
168. See Phipps, supra note 46, at 386, 424.
169. Oberman, supra note 34, at 718-28.
170. Id.
171. Id.
172. Phipps, supra note 46, at 434.
173. Oberman, supra note 34, at 721, cited in Phipps, supra note 46, at 380.
174. Phipps, supra note 46, at 424-25.
175. See id. at 425, 43940 (cursorily suggesting that progressive proposals to revise statutory
standards of sexual consent might be usefully applied to young people); Oberman, supra note 34, at 767-
77 ("One can easily imagine the consequences of this [consent reform] approach, were it to be permitted
in cases involving young victims. Owing to factors with which we are well acquainted, girls are less
likely to take an active role in rejecting a sexual advance. And if their silence may be taken as consent . .
. this 'reform' would enslave them to male sexual predilections."). Oberman's criticism accounts neither
for the possibility of criminal statutes explicitly rejecting silence as a token of consent, nor for the
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state to protect the sexual autonomy of young girls, but which ultimately and
unilaterally criminalizes their sex. However, unlike Archard (or Schulhofer),
Oberman importantly understands that questions and problems around age, sex,
and consent are also always questions and problems about gender and power.
But such recognition of this interface need not collapse, legally, into the
assumption that girls are either sexless or powerless.
B. Continuing the Trend in Age-Span Restrictions over Per Se Proscriptions
As mentioned in Part I, feminist-led reforms in the 1970s both gender
neutralized age of consent statutes and transformed blanket, one-age
proscriptions into age-span provisions.176 In most states, a seventeen-year-old is
no longer criminally liable for sex with a fifteen-year-old, but a nineteen- or
twenty-year-old is.177 Age-span reforms are doubly motivated. First, such
reforms shift the punitive response away from sex per se, so the moral problem
to be legally solved is no longer teens having sex. Age-span provisions can
signal that there is nothing innately impermissible about sex at a young age.
Second, and consequently, these reforms aim at eliminating coercion, not sex;
age difference is considered an adequate proxy for coercive relations.178 Insofar
as these provisions reflect the social and economic pressures young people,
particularly girls, face to acquiesce to sex with older men,179 insofar as they
reflect differences in sexual knowledge and experience between younger
teenagers and older people,'8 0 and insofar as they acknowledge young people as
sexually volitional rather than incompetent or incapable, they are welcome
differences in dynamics depending on the age span of the partners, nor for the different circumstances
facing younger and older teenagers.
176. See supra text accompanying notes 35-39.
177. Phipps, supra note 46, at 390. In Hawaii, for example, a twenty-year-old commits sexual
assault in the first degree (felony) for penetrative sex with a fifteen-year-old, unless the partners are
married. HAW. REv. STAT. ANN. § 707-730(1)(c)(i-ii) (2010). In Maryland, a seventeen-year-old
commits a second degree sex offense (felony) for sexual contact with a thirteen-year-old. MD. CODE
ANN., CRIM. LAW § 3-306(a)(3) (2010).
178. COCCA,supra note 20, at 19.
available at; Phillips, supra note 41, at
180. See WAITES, supra note 118, at 238-41. However, in the United States the gap in sexual
knowledge between teenagers and adults may not be so wide, as younger adults often have little or
incorrect information about sex, contraception and reproduction. Elizabeth Landau, Gaps Found in
Young People's Sexual Knowledge, CNN, Dec. 15, 2009,
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substitutions to the older laws. They should continue to replace one-age blanket
proscriptions still on the books in some states.18 1
1. Objection: Age Spans are Not a Necessarily Adequate Proxy for Sexual
There is, though, no necessary reason for sexual relations between younger
people and older people to be any more coercive than sex between people of
the same age.182 Age-span provisions build in a presumption of coerciveness
and power asymmetry, a presumption with empirical support, 1 but the age
difference itself might not explain the coercive nature of the sex. In Consent to
Sexual Relations, Alan Wertheimer suggests that age differences between
partners may not accurately index sexually coercive encounters, and he
therefore equivocally opts instead for blanket prohibitions effected through a
single age of consent.184 Oberman also points to problems with age-span
differentials both in law and as a priority of prosecutorial enforcement. She
cautions that a focus on age-spans may deflect attention from the coercive
sexual experiences of young girls with partners of the same age, and may
naturalize the less-than-wanted sex between same-aged young people as an
inevitable rite of passage into adulthood.'85 I respond to Wertheimer and
Oberman in turn.
Wertheimer begins his discussion on age and sex promisingly, asking,
"[p]ositive law aside, when and why should we regard the consent of a young
person as invalid?"186 He continues with this counter-conventional claim:
It is not obvious that age, per se, should be a worry at all. Age may be a
useful proxy for psychological capacities that are relevant to the validity
of consent, but it is only a proxy. In principle, we could evaluate a
person's competence by reference to the mental capacities that are
relevant to that decision and there is no reason to think that the relevant
mental capacities of many minors are lower than the mental capacities of
many intoxicated or retarded adults whom we typically regard as capable
of giving morally transformative consent. 187
181. Suggesting age-span provisions are more defensible than blanket prohibitions does not
condone severe sentencing, nor does it imply that criminal sanction will dissolve the socioeconomic
realities that induce sexual relations between younger girls and older men. See Phillips, supra note 41.
182. See Oberman, supra note 34, at 752.
184. ALAN WERTHEIMER, CONSENT TO SEXUAL RELATIONS 221-22 (2003). Wertheimer argues that
Oberman opposes per se proscriptions, which is incorrect. Oberman advances per se proscriptions, but
with qualifications regarding prosecuting and sentencing.
185. See Oberman, supra note 34, at 751-52.
186. WERTHEIMER, supra note 184, at 216.
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This challenge to what might be called the capacity model of age and
sexual consent is clarified by the six hypothetical scenarios Wertheimer offers
to illustrate the difficulties around sex and age.' 88 The most flagrant cases of
illegitimate consent involve partners of different ages and positions of power:
an eleven-year-old girl and an eighteen-year-old brother's friend, a thirty-fouryear-old
male babysitter and a fourteen-year-old girl, 189 a seventeen-year-old
gang member and high school freshman,190 a thirty-three-year-old man and a
fourteen-year-old girl who meet online. What is bothersome here is not
exclusively age per se, but age difference, relative positions of power, and the
exploitation of that difference and power. Among Wertheimer's scenarios, he
believes only consensual sex between two fifteen-year-olds is morally valid,
but is admittedly unsure about which relations should be legally valid.' 9
Yet despite Wertheimer's own examples, and his own evaluation, he insists
that age spans are not necessarily problematic, and that a single age metric
should hold. He contends,
it is possible that wide age spans are more likely to be coercive, that the
proportion of peer relationships that are problematic on these grounds is
lower than the proportion of wide-age-span relationships. This may or
may not be so. But, absent evidence about the way in which age spans are,
in fact, a good proxy for coercion, this argument provides little support for
the age-span approach.19 2
But then why do we, or does Wertheimer, find sex between fifteen-yearolds
unproblematic? In one of his more uncomfortable scenarios, two elevenyear-olds
have sex. This is startling, but is it criminal? The situation of the
eighteen-year-old, however, who advances on an eleven-year-old is suspect
because he is more sexually knowledgeable, exploits her inexperience, and
knows that she will willingly accede to appease her brother's friend.193
Wertheimer summarizes his discussion by claiming that considerations of
age span and other differences in power are too complicated for any rigorous
discussion or legal regulation, and seems to suggest that blanket age of consent
187. Id.at217.
188. Id. at 216-22.
189. Id. at 217. That Wertheimer specifies the babysitter is male, and that, moreover, all the
hypothetical scenarios judged problematic involve a male perpetrator and female victim, reflects that
gender inequality amplifies the coerciveness attributed exclusively to age or age difference.
190. Although Wertheimer's scenarios are presented as abstracted hypotheticals (person A does x,
person B does y), many of them are taken from court cases. The gang members and high school
freshman scenario refers to the "Spur Posse" scandal, discussed in Oberman, supra note 34, at 718 n.50.
191. WERTHEIMER, supra note 184, at 217.
192. Id. at 218.
193. Id.at217.
2010] 313
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laws may be the best we can do, even though they may be no more (or less)
defensible than other per se laws like age-span prohibitions. 194 Wertheimer
asks a number of questions that are left unanswered, and ultimately little is
developed on this front. Why? Because, despite his introductory remarks,
Wertheimer collapses age into the problem of capacity. He does so because his
theory on voluntariness-which is in fact his theory on sexual consent writ
large-cannot canvass structural relations of power, nor the effects of power on
choice and submission. In Wertheimer's analysis, choices are only
compounded by individual and individualized threats, and so the status of the
partners (employer-employee, different levels of intoxication, etc.) rarely
matter unless one person has leveraged the authority to explicitly disadvantage
another. 95 Put differently, because Wertheimer cannot address the kinds of
pressures and constraints manifest in most relations between adults and minors,
and because his theory cannot acknowledge socialization processes that
condition girls to acquiesce or submit to sex to older partners, he is left with no
other alternative but to make children incapable, to end where he began, with
positive law. 196
Oberman is also skeptical of age-span criteria. She reviews six cases in
which underage girls did not want to have sex with their partners, but where the
consent standard of criminal rape law would likely not have protected them,
that is, would not have found the behavior of the men criminal.197 The cases
evidence the need, she says, for bolstered age of consent statutes. Although
Oberman presents her examples to indicate why prosecutorial priority on agespan
cases would be under-protective, Phipps points out that "Oberman's case
studies do more to demonstrate the legitimacy of age span provisions than to
undermine them." 98 Indeed, all the cases involve girls at least several years
younger than the boys. The facts of these cases' 99 (like the facts of Michael
M)200 are incongruous with a plea to criminalize all teenage sex. Oberman is
concerned that age-span provisions will skew social understandings of sexual
violence as a problem of creepy old men and vulnerable young girls, thus
detracting attention from peer-on-peer sexual coercion. But her case studies
suggest instead that properly tailored and enforced provisions would strengthen
the sexual autonomy of young people, particularly girls. Such provisions would
194. Id. at 218, 222. Wertheimer suggests that wide age-spans may be inherently exploitive (not
coercive), but still seems to weakly endorse per se proscriptions.
195. 180-82.
196. Id. at 222.
197. Oberman, supra note 34, at 713 ("[Her case evidence] demonstrat[es] the ways in which
[teenagers] are simply not protected by contemporary rape laws.").
198. Phipps, supra note 46, at 408.
199. See Oberman, supra note 34, at 718-28.
200. See supra text accompanying notes 47-53; see also Alice Susan Andre-Clark, Note, Whither
Statutory Rape Laws? Of Michael M., the Fourteenth Amendment, and Protecting Women from Sexual
Aggression, 65 S. CAL. L. REV. 1933, 1992 (1992).
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not imply that the problem of sexual violence is and is only the problem of
great age discrepancy, but rather that different ages reflect different degrees of
experience and power, that older people intimidate younger people, and
younger people acquiesce to older people.
Wertheimer, because he is interested primarily in defending the
deliberative adult, cannot apprehend the unequal distribution of power between
groups, in this instance young people and older people. By re-making children
incapable, he reworks the problem as one of capacity rather than constraints on
volition. Oberman, because she is interested primarily in defending girls as a
class, cannot apprehend the desiring female subject. Since she (myopically, at
moments) only sees gendered subordination, her account too quickly assumes
problems of age-difference can only be epiphenomenal to gender hierarchy,
and so the teenage girl desiring sex with her teenage boyfriend looks equivalent
to any and all age-discrepant, coercive sex.
C. Regulating Relations ofDependence and Trust
If age-span provisions have been codified to approximate relations of
coercion, why not regulate relations that are more proximately coercive?
Anecdotally and statistically, adult perpetrators of child sexual abuse are much
more often fathers, stepfathers, or family acquaintances of the victim than they
are the feared strangers in the park.201 But when such stories are narrated (and
legislated) as violations of innocent, asexual children rather than as
manipulations of relational dependence, the fifteen-year-old victim is lumped
into the same story as the four-year-old, and children and youth are written over
as blank slates, unwanting and undesiring, whose corruption is inevitable.
The problem to be fixed becomes the pathological evildoer rather than the
relation of trust or dependence leveraged for sexual satisfaction-perhaps
morally exonerating everyday abuse through the construct of an externalized
villain.203 Most states do legally prohibit incest204 and some-but not enoughstates
regulate relations between young people and their custodians-teachers,
psychologists, coaches, family members, etc. It is relations of trust, authority,
available at 1/no-easy-answers.
202. See generally KINCAID, supra note 136.
203. See KJPNIS, supra note 153; Fischel, supra note 18.
204. See Leigh B. Bienen, Defining Incest, 92 Nw. U. L. REV. 1501, 1504 (1998).
205. Id. at 1575 (noting further that some states only criminalize sex between minors and persons in
positions of familial authority, while other states have more expansive definitions that include teachers,
coaches, and so forth); see also Phipps, supra note 71, at 132-33.
2010] 315
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and dependence, not age or age difference alone, that ought to be the
206 centerpiece of regulating sex among minors. By centering relations of
dependence over age, we are left with a rather different juridical imaginary,
where differences of power and its abuses are targeted, and where young
people are considered capable and volitional. In essence, the law would no
longer assume that young people cannot say yes to sex, but that in certain
relations of dependence they cannot reasonably say no. Thus the law would no
longer convey to young people, you cannot know what you want, and you do
not want sex, but rather, whatever you want, there are certain relations where
the ambiguity is too great, where exit options are too few, and where harm
and/or coercion is too likely to legally permit unregulated sex.207 An emphasis
on relations of dependence signals that law takes young people's choices as
paramount, and doubts the integrity of meaningful choice, and the holding open
of options, when a father, stepfather, coach, or teacher makes sexual advances.
1. Objection: Dependency Is Ubiquitous and Too Variable To Be
Sexual partners are rarely if ever equal; in fact, it is hard to make sense out
of what that might mean, or along what dimensions the equality ought to be
measured. In the absence of conceptual qualification, a stipulation to regulate
sex in relations of dependence leads two ways: either all sex everywhere is
impermissible since all power differentials functionally manufacture consent;
or, the stipulation is to be junked, precisely because it holds all sex everywhere
suspect, and this cannot be right, because sometimes sex is good, or fun, or
mutually desired, despite and sometimes because of power asymmetry.208
Wertheimer's work helps tease out one compelling way to normatively
distinguish relations of dependence that do and do not compromise sexual
relations. At the point where Wertheimer's theoretical distinctions reach a dead
end, I concentrate on a debate between Schulhofer and Wertheimer to round
out the specifications of regulating sex in relations of dependence between
minors and adults.
206. See Kitrosser, supra note 126, at 333-34.
207. Id.; see also SCHULHOFER, supra note 79, at 196.
AND DANGER: EXPLORING FEMALE SEXUALITY (Carol Vance ed., 1984); Katherine Franke, Theorizing
Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L. REv. 181, 207 (2001) ("Desire is not
subject to cleaning up, to being purged of its nasty, messy, perilous dimensions, full of contradictions
and the complexities of simultaneous longing and denial. It is precisely the proximity to danger, the lure
of prohibition, the seamy side of shame that creates the heat that draws us toward our desires, and that
makes desire and pleasure so resistant to rational explanation. It is also what makes pleasure, not a
contradiction with or haven from danger, but rather a close relation.").
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Much of Wertheimer's Consent to Sexual Relations is concerned with
distinguishing sexual threats from sexual offers, and articulating principles of
valid moral and/or legal consent under conditions of inequality or asymmetry: a
mechanic "offers" to fix a woman's car only in return for sex, a man spikes a
woman's drink before advancing on her, and so forth.209 Wertheimer ultimately
posits that tokened consent under conditions of inequality or asymmetry should
be considered valid if the recipient of the proposition can reasonably expect to
maintain or improve what he labels her "moralized baseline."2 10 In cases where
her refusal to have sex results in a worsening of her condition below that
baseline, consent is invalid and the sex illegitimate. For example, it is wrong
for a woman's doctor to make performing her surgery conditional on her sexual
reciprocation: the doctor has a conventionalized obligation to treat her, she has
a reasonable expectation of treatment, and the withholding of treatment
wrongly lowers her baseline standard of living. 211 However, if a wealthy man
offers a poor woman one million dollars for sex, the consent is valid and the
sex legitimate, if not morally ideal. She either remains poor or receives money,
and neither the offer nor its fruition makes her worse off than she would
otherwise be.212
There is much commendable in this approach-a kind of sexual realism,
reminding us that sex often takes place in grids of asymmetry, that we do not
always "want to want" to have sex,213 that choices-not just the sexual onesare
always constrained by circumstance, but are choices nonetheless. The
moralized baseline approach is adaptable to the variety and inequality of
everyday life, and grounds a usable evaluative framework. On the other hand, it
oversimplifies how power operates between sexual partners, ultimately limiting
its utility to those situated unequally by institution or social convention, as is
often the case with minors and adults.
The limited applicability of the moralized baseline approach for sex
between minors and adults in relations of dependence is best illustrated in a
disagreement between Wertheimer and Schulhofer over Wertheimer's Higher
Grade hypothetical. In Higher Grade, a professor offers to raise the grade of
his student should she have sex with him. If she refuses sex, she will receive
the grade she deserves on merits. Wertheimer argues the professor is not as
sexually coercive or as morally culpable as he is in Lower Grade, where a
professor threatens to lower the student's grade below what she deserves unless
she has sex: "[O]ne reason for thinking [the professor's] proposal in Lower
209. WERTHEIMER, supra note 184, at 176,233.
210. Id.atl63-92.
211. Id. at 167-68. In Wertheimer's example, a lifeguard is required to rescue a drowning person. If
the lifeguard offers to rescue the person only in exchange for his money, the agreement is void and the
person should not be expected to pay.
212. See id. at 175.
213. See ARCHARD, SEXUAL CONSENT, supra note 136, at 67.
2010] 317
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Grade is wrong simply does not apply to Higher Grade, namely, that [the
professor] is not proposing to violate [the student's] rights should she reject his
proposal."214 In Lower Grade, the student has a conventional right to a grade
earned on merits confounded by the sexual threat, whereas in Higher Grade
her baseline, supposedly, is unaffected. Schulhofer argues the professor is
equally coercive and culpable in both scenarios. Because it is reasonable and
likely to assume that buried under the offer of a higher grade is retaliation
'below the baseline' for refusal, the law and moral theory should treat these
cases alike. The employee who refuses sex for a promotion often gets fired, the
student who refuses sex for a higher grade often gets a lower one than she
deserves-these offers are more often than not retrospectively threats, and
therefore illegitimate.215
Wertheimer has responded to Schulhofer that if Higher Grade were
'genuine'-that is, if in fact there were no punishment for refusal, but the
student simply retained her earned grade-then the offer of Higher Grade and
the threat of Lower Grade would (and should) be separate questions. 216
Schulhofer does not have much of a reply. His claim depends on the
empirical evidence that this outcome, receiving the earned grade, is an outlier,
but it need not. Rather, the very fact that the student cannot know a priori
whether this offer will ultimately violate her rights is itself tantamount to a
suppression of her sexual autonomy. It is not the likelihood that the offer is a
threat that is the problem, but the fact that the professor qua professor leverages
that ambiguity, whether consciously or not, to his sexual advantage and the
student's sexual disadvantage. Even if there is no retaliation, the professor
secures sex by misusing a position of power and manipulating a relationship of
dependence. The question ought not to be did the student suffer as a result of
the refusal, but instead can a student reasonably say no, given the power
conditions of the relationship?
Schulhofer offers a number of regulations and restrictions on sexual
relations between teachers and students, (some) lawyers and clients, and
psychiatrists and patients.217 The impetus for regulation is that one party is
highly dependent on the other, and that that dependence undermines valid
consent. It is therefore unnecessary to argue that these relationships should be
regulated based on some measured probability of retaliation. Given the
dependency in certain unequal relations, it is the constraint on choice, the
manipulation of one's will for sexual gratification, and the ambiguity of
potential retaliation that require legal response and adjudication. It is these
214. WERTHEIMER, supra note 184, at 180.
215. See SCHULHOFER, supra note 79, at 135-36, 143-44, 174, 178, 197-98. Schulhofer also
discussed Wertheimer's "Lower Grade" and "Higher Grade" scenarios at the University of Chicago Law
and Philosophy seminar on coercion, Spring 2008.
216. WERTHEIMER, supra note 184, at 180.
217. SCHULHOFER, supra note 79, at 206-26, 253.
318 [Vol. 22:2
2010] Per Se or Power? Age and Sexual Consent 319
forms of dependency that often characterize relations between adults and
minors-stepfather and daughter, teacher and student, coach and athlete. It is
impermissible for a father to have sex with his daughter not because the sex is
incestuous, or potentially abusive or coercive, but because the sex is likely to
be abusive or coercive with or without the threat. There is no way to tell, and
that is the problem-an upshot of relational dependence, buffered by age
differential and (most often) gender. In these circumstances, the giving of
consent is indistinguishable from a necessary concession to maintain the
baseline, to check violence, or to avoid deprivation, and Wertheimer's
distinctions cannot perform the evaluative work for which they are intended.
It is not simply vulnerability and dependence that nullify consent, because
sex frequently takes place in worlds and relations of inequality. Nor is sexual
consent only nullified if one's moralized baseline is threatened through
leveraging vulnerability and dependence. Rather, there are certain relations
where the degree of vulnerability and dependence is so great that, to paraphrase
(but redirect) MacKinnon, it is impossible to tell the difference between
coerced submission and consent.218
218. Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist
Jurisprudence, 8 SIGNS: J. WOMEN CULTURE & SOC'Y 635, 647 (1983) ("Perhaps the wrong of rape has
proven so difficult to articulate because the unquestionable starting point has been that rape is definable
as distinct from intercourse, when for women it is difficult to distinguish them under conditions of male
dominance."). David Archard, like many a skeptical law student, claims that MacKinnon believes all
heterosexual sex is indistinguishable from rape, and then dismisses her argument as such. ARCHARD,
SEXUAL CONSENT, supra note 136, at 90. This strategic misreading allows Archard and others to contain
feminist critiques of rape law as paranoid and excessive; moments of MacKinnon are paranoid and
excessive, but this is not one of them. MacKinnon's (admittedly polemic, but never sloppy) critique of
traditional rape law exposes its fundamental precepts that have made it so intractable to reform. See also
HALLEY, supra note 103, at 44-50 (2006); Oberman, supra note 22, at 823-24 (observing how other
critics of MacKinnon have made the same mistaken conclusion). Halley, in her otherwise stinging
critique of MacKinnon, points out that the 'early' MacKinnon's analysis of rape and criminal rape law
was proffered as a broadside on patriarchal epistemology and its juridical constructions of force and
In The Many Faces ofSexual Consent, 37 WM. & MARY L. REv. 47 (1995), William N. Eskridge,
Jr. observed that sex law was moving away from restrictions based on status to restrictions based on
consent. Nonetheless, he pointed to status-based statutes still on the books that, reflecting gendered and
heteronormative mores, penalized various forms of nonprocreative sex outside marriage. I concur with
the position he advanced then, the reintroduction of status crimes, but where status differentials index
power differentials that constrain sexual autonomy rather than privilege marital procreative sexuality:
"Gaylaw should insist that 'choice' be viewed realistically and should explore the many ways in which
sexual choice is or can be 'impaired.' . . . [A]t this point, conceptions of status reenter the policy
calculus-not to render consent irrelevant, but instead to consider whether apparent consent ('yes') has
been rendered meaningfully. In situations in which one party stands in a position of authority or power
over the other party, the latter's acquiescence in sexual relations might be doubted and more easily
negated." Id. at 66-67 (citations omitted). Although many status-based sex crimes have been rendered
unconstitutional since 2003 as a result of Lawrence v. Texas, 539 U.S. 558 (2003), a few state criminal
codes still differentiate between underage sodomy and intercourse, penalizing the former more greatly
and thus disparately impacting same-sex sexual activity between minors and between minors and adults.
So too, exemptions to statutory rape liability are made if partners are of the "opposite sex" and within a
specified age range of one another. See generally Higdon, supra note 121.
I should also note that regulating sexual relations of trust and authority is one of two ways to
mitigate the effects of structural dependence on sexual autonomy. The other is to revolutionize social
conditions so that these relations of dependence dissolve, say, by abolishing the nuclear family and wage
labor, and securing children's financial independence. Until the revolution, I hesitantly endorse
Yale Journal of Law and Feminism
D. Creating an Affirmative Standard of Sexual Consent for Minor-Minor and
Adult-Minor Sexual Relations
Although Schulhofer and Archard promote a more robust standard of
consent than the extant standards of most state laws, neither they, nor Oberman,
nor Wertheimer, address the possibility of revising standards of sexual consent
for young people as a class of persons. I argue for the construction of such a
consent standard here, first situating this demand in the context of prior
feminist reforms and then responding to potential objections. An affirmative
standard of sexual consent unique to and for young people spurs concerns from
all stripes-legal realists, critical theorists, protectionist feminists, pro-sex
feminists, poststructuralists-and I do my best within space limitations to
suggest not so much that their concerns are discountable, but that the costs of
stasis-for young people and for sex-are higher than the costs of the proposed
Beginning in the 1970s, states reformed their criminal rape laws, also
under pressure from feminist legal activists and scholars. 219 Marital exemptions
to rape were mostly abolished (husbands can now be considered sexually
coercive, as a matter of law), 220 as was the requirement that a rape charge be
corroborated by a third party (women are now believable, as a matter of
221 law). Judges no longer peremptorily instruct juries that rape is often falsely
222 accused, and many states have enacted "rape shield" laws that, to varying
223 degrees, preclude testimony reporting the sexual history of the claimant.
More important for our purposes, women are no longer required to display
"utmost resistance" to satisfy the force requirement of rape and sexual assault
statutes;224 that is, women previously had to have demonstrated the "utmost
resistance" against sexual advances for those advances to be determined
225 226 criminal. The force element has been relaxed, and a few states have
switched from a force or resistance requirement to a "nonconsent"
227 requirement2. However, scholars and lawyers have noted that this change has
not made much material difference in successful prosecutions, as "nonconsent"
regulation (nor does this particular regulation stall or co-opt the revolution). See Kate Millet, Beyond
Politics? Children and Sexuality, in PLEASURE AND DANGER, supra note 208, at 217-24.
219. Chamallas, supra note 91, at 796-813; see supra text accompanying notes 35-39.
220. Chamallas, supra note 91, at 796-813.
221. CARINGELLA,supra note 34, at 14-15; Chamallas, supra note 91, at 796-813; Oberman, supra
note 34, at 711.
222. See CARINGELLA, supra note 34, at 16; supra text accompanying notes 35-39.
223. CARINGELLA, supra note 34, at 15; see supra text accompanying notes 35-39.
224. SCHULHOFER, supra note 79, at 3, 30-31.
225. CARINGELLA, supra note 34, at 14-15, 65-70; SCHULHOFER, supra note 79, at 3, 30-31.
226. CARINGELLA,supra note 34, at 14-15, 65-70.
227. Many states require some proof of resistance as an element in a crime of rape or sexual
assault, while some have abolished the resistance requirement altogether, centralizing nonconsent
instead. CARINGELLA, supra note 34, at 14-15, 30-31.
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and "forcible compulsion" are interpreted by judges and juries to require a
demonstrable act of resistance by the alleged victim.228 In other words, the
nonconsent standard has been rescripted as a force element. 229
While most states retain a force element in their rape or sexual assault
statutes, and while some states have transformed their force element into a
nonconsent standard, only a handful of states require an affirmative version of
consent for the sex act to be non- criminal 230
-some verbal or nonverbal freely
made assent signaling agreement or willingness beyond acquiescence or
compliance.231 Although scores of feminist legal theorists have argued for an
affirmative standard of consent-either to advance a legal model of sexuality
that underscores mutuality and reciprocity,232 and/or to militate against
gendered power imbalances 23 3
-the calls are mostly ignored juridically234 and
challenged jurisprudentially. 235
Whether or not feminist legal scholarship had, or has, the moral force or
empirical evidence to make the case for affirmative consent in adult
236 heterosexual relations, such a standard should be incorporated for regulating
sex between minors and between minors and adults. A rationale for that
standard closely resembles rationales made by feminists over the past twentyfive
years, but is more actionable and potent in the context of youth and
sexuality; furthermore, such an argument poses fewer collateral problems in
this sphere than as applied to sex tout court.
An affirmative standard of consent promotes sexual autonomy-it tracks,
better than extant laws, young people's objectives. It checks sex in the "grey
area" among teens or between teens and adults in which sex is secured through
silence, nonresistance, or weak resistance. 23 7 As far as I know, only Heidi
Kitrosser has explicitly argued for an affirmative standard of consent for sexual
relations involving minors. Although I partially agree with the rationales on
228. Id. at 31, 106-07.
229. See SCHULHOFER, supra note 79, at 10.
230. New Jersey, Wisconsin, and Washington all require affirmative consent for exculpation.
CARINGELLA, supra note 34, at 75-78.
231. Id. In Wisconsin, "consent" is "words or overt actions by a person who is competent to give
informed consent indicating a freely given agreement to have sexual intercourse or sexual contact." WiS.
STAT. § 940.225(4) (2010).
232. See, e.g., Chamallas, supra note 91; Lois Pineau, Date Rape: A Feminist Analysis, in DATE
RAPE: FEMINISM, PHILOSOPHY, AND THE LAW 1 (Leslie Francis ed., 1996).
233. See, e.g., MACKINNON, supra note 2, at 243-47; Lani Anne Remick, Read Her Lips: An
Argumentfor a Verbal Consent Standard in Rape, 141 U. PA. L. REV. 1103 (1993).
234. See SCHULHOFER, supra note 79, at 43-46.
235. See CARINGELLA, supra note 34, at 78-82; David P. Bryden, Redefining Rape, 3 BUFF. CRIM.
L. REV 317, 402-ll (2000).
236. CARINGELLA, supra note 34; Bryden, supra note 235; see infra text accompanying notes 259-
237. See supra text accompanying notes 34, 155, 157, 166, 170.
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which her theory is developed,238 I want to add another: a shift to affirmative
consent in fact makes the standard no longer entirely about consent, but about
sexual autonomy and young people's desires and choices. Affirmation
displaces consent as the central metric in determining criminal sexual conduct,
refocusing attention onto the choices and options of young people instead. Sex
and sexuality come to look less like a commodity reluctantly ceded through
contract-a thing one male person wants and one female person relinquishesand
more like a collaboration of desiring subjects.239 Several feminist theorists
make the case for more protective sex laws by demonstrating the comparative
robustness of laws guarding individual's proprietary rights to objects like
cars24 0 and horses.241 The body, they suggest, is surely as protection-worthy.
The problem with this analogy is that it symbolically reproduces sex with
women as a thing to be proprietarily protected and contractually traded,
242 rendering female volition interchangeable with cars and horses. If instead the
law asks not to what will young people accede, but what do young people want,
it acknowledges agency, hedging against the sexualizing of socially imagined
childhood innocence or blankness the law had previously codified. Insofar as
consent presupposes incapable young people on one side of the line and
reasoning-but-acquiescing people on the other, volition drops out of the
equation, and eroticized innocence fills the vacuum.244 To legally imagine a
young person wanting sex is to legally imagine a young person wanting,
238. Kitrosser, supra note 126, at 329-30 (arguing that adolescent girls' heightened vulnerability
and likely acquiescence to unwanted sex demands a more exacting consent standard). On our points of
disagreement, see supra text accompanying notes 126-135.
239. See Rachel Kramer Bussel, Beyond Yes or No: Consent as Sexual Process, in YES MEANS
Jessica Valenti eds., 2008); Thomas Macaulay Millar, Toward a Performance Model of Sex, in YES
MEANS YES, supra at 29.
240. FINEMAN, supra note 55, at 42-43; Susan Estrich, Palm Beach Stories, 11 LAW & PHIL. 5, 10-
241. Ehrlich, supra note 25, at 235 (noting that 19th-century reformers wryly argued that if
Congress could act quickly to pass a bill rebuilding the burned down stables for President Grant's
horses, surely Congress could act as speedily to protect girls).
242. See Millar, supra note 239, at 36-37; see also CAROLE PATEMAN, THE SEXUAL CONTRACT 15
(1988) ("That individual freedom, through contract, can be exemplified in slavery should give socialists
and feminists pause when they make use of the idea of contract and the individual as owner.").
243. See generally KINCAID, supra note 136 (arguing that the innocence ascribed to Western
children from the end of the 18th century until the present, although historically varied, has eroticized
them as placeholders for and projections of adult desire). For a thorough, trenchant treatment of the
relation between U.S. law, the codification of child (a)sexuality and (sexual) abuse, and the disciplinary
encroachments the legal child requires from the state and its professional institutions, see GILLIAN
244. See HARKINS, supra note 243, at 197 ("Consent hinges on children, heuristically and
protectively. Historically, sexual consent upholds relations between family and state more than it
recognizes specific forms of sexual agency .... [I]t might be more accurate to say that consent produces
children as the case for political negation. . . . subjects produced through a series of competing and
conflictual negations that enjoin them to desire."). See generally KINCAID, supra note 136.
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puncturing fantasies of a child tabula rasa that fuels both conservative
erotophobic politicS245 and (some) pedophilic desires alike.246
I do not define explicitly what constitutes "affirmative consent." I avoid
this thorniness mostly because those with more legal training and those
working in criminal law and public policy are better suited for the job. I am
inclined though to agree with Schulhofer that "sexual intimacy must always be
preceded by the affirmative, freely given permission of both parties."247 The
consent token need not be verbal. It can include body language, particular
forms of conduct, and mutual initiation. A Washington statute defines consent
as "actual words or conduct indicating freely given agreement to have sexual
intercourse or sexual contact." 248 Indeed, a spoken requirement may be asking
too much since young people report being uncomfortable verbalizing their
desires to each other. 24 9
1. Objection: "Affirmative Consent" Can Be Coerced; "Affirmative
Consent" Is Still Subject to Judicial Interpretation
There are obvious problems with an affirmative consent defense for minor
sexual relations, two of which stand out readily and similarly: coercion and
judicial interpretation. With regard to coercion, if perpetrators know the
standard has shifted to an affirmative one, might they not coerce victims, most
often younger girls, to "affirm" they want to have sex? Perhaps. As it stands,
many young teenagers who are now having mutually desired sex are criminals.
245. See BERLANT, supra note 53, at 66-67 ("Sometimes when the little girl, the child, or youth are
invoked in discussions of pornography, obscenity, or the administration of morality in U.S. mass culture,
actually endangered living beings are being imagined. Frequently, however, we should understand that
these disturbing figures are fetishes, effigies that condense, displace, and stand in for arguments about
who 'the people' are, what they can bear, and when, if ever.").
246. In his study of thirty men convicted of sex offenses against children, sociology professor
Douglas Pryor finds, "one [erotic] contingency was the perceived vulnerability of the child .... Many
men noted that they had picked a particular child they believed to be an easy or willing mark.. . . Erotic
desire seemed to flourish for men when they were in control of their victims .... The men felt that the
victims began to use sex and their knowledge of what had been occurring to gain leverage . . . . Other
men admitted that they lost power when the victim started to initiate sex back .. .. In these instances,
erotic interest dissipated, sexual momentum essentially stopped, and offenders began to search for ways
out of the situation" (emphasis added). DOUGLAS W. PRYOR, UNSPEAKABLE ACTS: WHY MEN
SEXUALLY ABUSE CHILDREN 266-67 (1996); see also OST, supra note 106, at 185-86 ("Our construction
and objectification of children as innocent may cause us to reduce them simply to objects of innocence,
the one aspect of childhood that may be of greatest attraction to the child sexual abuser."); Richard Yuill
& Dean Durber, 'Querying' the Limits of Queering Boys Through the Contested Discourses on
Sexuality, 12 SEXUALITY & CULTURE 257, 266 (2008) (citing studies finding that a presumed innocence
and a presumed need-of-guidance were reported factors of attraction for self-identified "boylovers" and
247. SCHULHOFER, supra note 79, at 280.
248. WASH. REV. CODE § 9A.44.010(7) (2003).
249. See Terry P. Humphreys, Understanding Sexual Consent: An Empirical Investigation of the
Normative Script for Young Hetemsexual Adults, in MAKING SENSE OF SEXUAL CONSENT 209 (Mark
Crowley & Paul Reynolds eds., 2004); Kitrosser, supra note 126, at 324-26.
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The many older teenagers who are having sex are under-protected by standards
of consent and force that ultimately codify and normalize coercive sex. Girls
are unlikely to say "no" to unwanted sex, and the law evaluates fearful silence
as legitimate consent. At least with an affirmative consent standard, silence
might no longer be transformative.250 So too, one might hope that an
affirmative standard would disqualify affirmations given on account of threats
or force.251
With regard to judicial interpretation, the "welcomeness" standard
developed under sexual harassment law since Meritor Savings Bank v.
252 Vinson, and which has an obvious affinity with affirmative standards of
consent, is infamously riddled with the problem of dubious (one might say
misogynist) interpretation. Although offered as a more robust alternative to the
consent standard of criminal rape law, "welcomeness" has sometimes hinged
on the sexual character of the plaintiff, her choice of clothing, and her choices
of speech and humor.253 The welcomeness standard presumes all sexual
advances are welcome, regardless of their content, unless proven otherwise.
The actions of the perpetrator are naturalized and the burden falls on the
victim.254 If judges have been capricious in interpreting "welcomeness," why
would they do a better job interpreting "affirmative consent"? Will a teenager's
sexual dress and sexual past be considered evidence of affirmation? Ultimately
the issue here collapses into the issue of coercing a "yes," and my response is
similarly, admittedly, unsatisfying: an affirmative standard beats the extant
alternative, at least making it more likely that silenced submission or resistance
without force will not be legally discounted. Similarly, narrowly tailored
definitions of consent in sexual relations might address misogynistic, ad hoc
judicial interpretation. It should not be exceedingly difficult to enact a consent
251. The obvious parallels here are the invalidity of coerced contracts, and the absolution of
criminal culpability under conditions of duress. Of course, what counts (morally, legally) as coercion to
invalidate contract, and what counts (morally, legally) as duress to exonerate criminal behavior, are
questions as complicated as determining when and under what circumstances affirmative consent to sex
is transformative. For a jurisprudential and philosophical account of coercion and a proposal to revise its
meaning and scope, see generally ALAN WERTHEIMER, COERCION (1990). For an analysis of duress and
a proposal to revise its meaning and scope, see Craig L. Carr, Duress and Criminal Responsibility, 10
LAW & PHIL. 161 (1991); Meir Dan-Cohen, Responsibilities and the Boundaries of the Self, 105 HARV.
L. REv. 959, 997-99 (1992); and Daniel Varona G6mez, Duress and the Antcolony's Ethic: Reflections
of the Foundations of the Defense and Its Limits, 11 NEW CRIM. L. REV. 615 (2008). All writers cited
point out that factors which legally exculpate may or may not morally exculpate, and vice versa. At any
rate, the more general analogous point is that the validity of the subject's "yes" to sex must be evaluated
under the conditions in which the "yes" is procured.
252. 477 U.S. 57 (1986).
AMERICAN WORKPLACE 35-47 (2004); Louise F. Fitzgerald, Who Says? Legal and Psychological
Constructions of Women's Resistance to Sexual Harassment, in DIRECTIONS IN SEXUAL HARASSMENT
LAW 94 (Catharine A. MacKinnon & Reva B. Siegel eds., 2004).
254. See Fitzgerald, supra note 253, at 104-05.
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standard that requires more than a short dress either to signal interest in sexual
activity or to neutralize evidence of resistance.255
Another similar feminist concern with the "welcomeness" standard of
sexual harassment law is that it shifts evidentiary focus onto the behavior and
desires of the plaintiff and away from the power hierarchy that constitutes the
workplace relationship.256 As for power hierarchies, regulations on relations of
dependence and age-span provisions hedge against an overly individualized
characterization of sexual coercion.257 As for transposing the burden of proof,
while theorists and activists have argued that rape law mistakenly queries the
plaintiff, her character, and her behavior instead of querying the behavior of the
defendant, it strikes me that any reform more extensive than pushing an
affirmative standard of consent-for example, making nonconsent the
rebuttable presumption in charges of sexual assault258 -veers into marking the
defendant guilty until proven innocent. This is a supposition susceptible to a
barrage of criticisms, among them: it potentially attributes guilt without fact
259 finding, trial, or jury deliberation, and it portrays sex itself as an inherently
unwelcome act equivalent to, say, theft or assault.260 One legal theorist
analogizes that "consent" is not an affirmative defense to robbery as we would
not reasonably believe the plaintiff to have asked or consented to be robbed.261
But we do not need to valuate sex like we valuate armed robbery to demand a
more robust standard of consent in sexual relations between young people and
young people and adults. That is, the law can require a form of affirmative
consent that does not a priori assume that sex is, with occasional exceptions,
experienced like armed robbery.
255. In State v. Grunke, 752 N.W.2d 769 (Wis. 2008), the Wisconsin Supreme Court reversed
lower court rulings and held defendants in violation of the state's sexual assault laws for attempting to
have sex with a corpse. Importantly, the finding in part hinged on Wisconsin's statutory definition of
consent as "indicating a freely given agreement to have sexual intercourse or sexual contact." Wis.
STAT. § 940.225(4) (2006). The state, the Court concluded, need not prove the corpse withheld consent,
but simply that she did not affirmatively provide it (which she did not, as she was dead). Grunke, 752
N.W.2d at 776. At least in Wisconsin, Catharine MacKinnon's and Andrea Dworkin's grievance that
under U.S. law dead women can consent to sex is allayed by this statutory affirmative standard.
However, Caringella observes that judges in jurisdictions with affirmative consent requirements often
interpret acquiescence or submission as voluntariness. CARINGELLA, supra note 34, at 80-82, 112-13.
256. See Fitzgerald, supra note 253, at 94.
257. See supra text accompanying notes 182-218.
258. See supra text accompanying notes 126-135.
259. See, e.g., Joshua Dressler, Where We Have Been, and Where We Might Be Going? Some
Cautionary Reflections on Rape Law Reform, 46 CLEV. ST. L. REv. 409 (1998); Donald A. Dripps,
Beyond Rape: An Essay on the Diference Between the Presence of Force and the Absence of Consent,
92 COLUM. L. REv. 1781, 1792-93, n.41 (1992).
260. See Bryden, supra note 235, at 385.
261. SUSAN ESTRICH, REAL RAPE 70-71 (1987).
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2. Objection: Why Not Adopt "Affirmative Consent" as a Standard for All
Sex To Better Protect Adult Victims?
Catharine MacKinnon, Lois Pineau, Martha Chamallas, Heidi Kitrosser,
Stephen Schulhofer, and a host of others have suggested that states reform their
standards of consent for criminal rape law. 262 Given that-as MacKinnon and
Andrea Dworkin have famously remarked-a dead woman is legally capable of
sexual consent in most jurisdictions, 2 there is not all that much to rebut this
On the plane of gender, I have hesitations-but only hesitations-about
fully incorporating affirmative consent reforms. Some critics point to problems
with this move and the conceit that motivates it: it infantilizes women, it
patronizes sexual partners, it imagines sex as conversational, it takes the sexy
out of sex, it opens the door to endless legal retaliation and places unfair
burdens on the defendant.264 I sympathize with only some of these criticisms,
but indeed there is a risk in the assumption first, that adult women cannot say
what they want and second, that protectionist law is the best vehicle for
women's empowerment and respect.
However agnostic I am about such concerns, I have focused here on gender
as it intersects with age. On this intersecting plane, welcomeness carries fewer
problems than it does when applied to rectifying women's inequality, and
seems the right course of reform. As Oberman evidences, young people,
whether or not in relations of power, are disinclined to express their desires,
and their silence is exploited. Young people are less experienced and less
informed than adult women.265 A standard of affirmative consent recognizes
that sexual relations among minors and between minors and adults are more
fraught, new, and vulnerable than sexual relations among adults, but that they
occur frequently,266 and ought to be safeguarded, not suppressed. Kitrosser
argues that if the law cannot be reformed for everybody, perhaps at least the
262. Kitrosser, supra note 126; see supra notes 232-233.
263. MacKinnon, supra note 43, at 1300 ("The notion of consent here, the law's line between
intercourse and rape, is so passive that a dead body could satisfy it.") (citing ANDREA DWORKIN,
INTERCOURSE 129 (1987) ("Consent in this world of fear is so passive that the woman consenting could
be dead and sometimes is.")). But see supra note 255 (a dead woman cannot consent to sex in
264. CARINGELLA, supra note 34, at 78-85; Vivian Berger, Not So Simple Rape, 7 CRIM. JUST.
ETHICS 69, 75-76 (1988); Richard Klein, An Analysis of Thirty-Five Years of Rape Reform: A
Frustrating Search for Fundamental Fairness, 41 AKRON L. REV. 981, 1053 (2008) ("Silence,
preceding and during sexual relations, ought not be deemed sufficient to transform intercourse into a
rape. In some jurisdictions, an accused can be convicted even if he believed there was consent, even if
such a belief was a reasonable one, and even if there was no indication whatsoever, no physical or verbal
resistance, of the lack of desire for the intercourse.") (internal citation omitted); see infra text
accompanying notes 272-274. Although an otherwise informative and well-researched article, Klein
offers no aggregate data to suggest that such rape reforms have in fact led to significant convictions or
incarcerations of hapless men without mens rea.
265. See supra note 180.
266. See supra notes 113, 122.
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law can be adjusted for young people.267 Tentatively, there is a case to be made
that rather than consider reforms for young people the best we can do, we
might think of young people as a separate class of individuals for whom the
law rightfully has a different function. Affirmative consent does not presuppose
that young people are constitutionally helpless, powerless, or dependent, but
recognizes instead forces, circumstances, and gendered socialization that
disproportionately impact youth, and that necessitate a more fortified legal
shelter for sexual autonomy.
3. Objection: Who Says "Yes" to Sex?
A commonly invoked objection to an affirmative standard of consent is
that sex is not a conversation, that people do not and do not want to speechify
the sex they are having. They do not want to contractualize the encounter,
deeroticize it, or make sex unsexy by sitting around and talking about it, killing
what would have been seductive because subtle foreplay. 2 6 8 People who share a
history of intimacy presumably share some level of familiarity with each other,
and need not explicitly agree to sex each and every time they have it.269 This
commonsensical skepticism is a powerful antidote to feminist agitation. In the
1990s, the infamous sexual consent policy of Antioch College was much
maligned for requiring that students verbally consent to each "level" of sexual
activity before proceeding to another. 2 70
The first response to this objection is simply a reminder that affirmative
consent need not be a "yes" or a clumsy nod of the head. It intends instead that
lying still, submitting after resisting, or submitting after threats are leveled do
not meet the threshold for exculpation. In the well-known rape cases discussed
by Schulhofer, Estrich, Oberman, and so forth, the facts of the case are often
not disputed-everyone agrees that the victim lay there, submitted after
271 resisting, or submitted after threats were leveled2. It is rather the interpretation
of the facts that are litigated. An affirmative consent standard excludes
interpretation of such facts as constituting consent. Moaning, moving, kissing,
saying "that feels good," removing some of one's own clothing, guiding one's
267. Kitrosser, supra note 126, at 309 ("An affirmative consent standard is a crucial step in the
general law of rape . . . . In particular though, such a standard is especially important in the case of
minors, given the increased likelihood that a minor, particularly in relation to an older person, might be
intimidated into sexual activity. .. .").
268. See CARINGELLA, supra note 34, at 79-80 ("It is unrealistic-in fact, to many fairly
ludicrous-to think about the questions: 'Can I touch your boobs now [sic]' 'Do you mind if I suck your
vagina?' 'Shall I penetrate you now?' People just don't have sex this way.").
269. See ARCHARD, SEXUAL CONSENT, supra note 136, at 37.
270. See CARINGELLA, supra note 34, at 79; Editorial, 'Ask First'at Antioch, N.Y. TIMEs, Oct. 11,
1993, at A16.
271. SCHULHOFER, supra note 79, at 47-55; Estrich, supra note 240, at 10-11; Oberman, supra note
34, at 718-28.
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partner's hands, initiating a sexual act after one's partner initiated the first act:
such behaviors might all be factors in determining consent. Lying scared, silent,
and still, however, would not count.
In his survey of rape laws and attempted rape law reforms, David Bryden
proffers a few critiques of an affirmative consent standard-all variants or
derivatives of but who says yes to sex? While admitting that "[s]ymbolically
and educationally, [affirmative consent] would be an excellent rule," 272 Bryden
objects that "in an ongoing sexual relationship the parties usually do not regard
every sexual encounter as a momentous decision, fraught with dangers that
need to be carefully evaluated." 27 3
The claim presumes that affirmation or agreement to sex is only required if
sexual decisions are momentous, and if dangers run high. But what if
affirmation is about respecting the wants and desires of the people having
sex-respecting sexual autonomy-whether or not the act is momentous or the
danger imminent? "With your lover," he writes, "a greater degree of
spontaneity is acceptable," but can't one have the pleasures of spontaneity
coterminous with the pleasures of consensual sex?274 If I spontaneously jump
my partner, and he lays there motionless, never signaling any verbal or bodily
interest, is that the kind of spontaneity the law should recognize as permissible?
Perhaps. But is it the kind of spontaneity young people, those newly entering
into sexual relations, should learn is morally acceptable and legally allowable?
Similarly, Bryden criticizes the affirmative consent argument because it
presupposes a "gross imbalance of power," that may not characterize relations
between most men and women. In line with some feminist commentary,
Bryden suggests the argument for affirmative consent may stereotype and
reify-rather than rectify-the power imbalance between men and women.275
This hesitation is less applicable to sex among minors and between minors and
adults. As between minors and adults, there are more often measurable or
immeasurable imbalances of power, whether in different levels of knowledge
and experience, different forms of emotional investment and psychic need, or
in different institutional locations.276 As for sex among minors, it seems
plausible that the adoption of affirmative consent could be conceived of not as
a reiteration of gender norms around aggression and passivity, but as a
statutorily recognized commitment to sexual autonomy. While consent reform
in the worlds of either adult sex or youth sex would be facially gender-neutral,
the reforms in the former (analytically, let's imagine they are discrete) would
be more quickly and ubiquitously interpreted as protections for women, given
272. Bryden, supra note 235, at 400.
273. Id. at 403.
274. Id.; see also ARCHARD, SEXUAL CONSENT, supra note 136, at 23 (arguing that only a
particularly caricatured account of securing consent would render it so deflating for erotic spontaneity).
275. Bryden, supra note 235, at 400.
276. See supra text accompanying notes 179-181, 186-196.
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that such reforms are spearheaded by women, and that the history of rape
reform is the history of figuring women's bodies and bodily availability to
men.277 But the history of age of consent reform is not gendered as
monolithically, 27 8 and reform to consent standards may here be as equally
interpretable as applying to youth as a class, rather than to young girls. In a
perfectly sexually autonomous world, an affirmative standard of consent would
be introduced alongside more egalitarian safer sex programs that relinquish
models of sexuality as eroticized dominance, that centralize both safety and
desire, and that articulate the import of respecting and defending sexual
279 choice. An affirmative standard of legal consent could be understood as both
indicating and propelling a political appreciation of young people's sexual
Lastly, Bryden objects that an affirmative consent standard may conflate
sexually amoral acts with sexually criminal acts, which would result in harsher
while many of us might criticize a man who fails to ask, or at least to wait
for an affirmative signal, in the absence of some sort of physical or at least
verbal resistance by the woman few observers would say that the man's
conduct was so unusual and immoral that it warrants the extreme sanction
of imprisonment. ... 280
While some disagree about whether "date rape" and "stranger rape" ought
to be treated as different in degree or kind,281 no one advocates uniform
277. See CARINGELLA, supra note 34, at 11-21.
278. See COCCA, supra note 20, at 16-24.
(finding, in her sociological investigation of safer sex education in three politically and socially diverse
North Carolina secondary schools, that, "[1]iberals promoted comprehensive sex education as a means to
prepare young people-and, again, young women in particular-to navigate a sexually dangerous world
.... Conservatives, however, argued that sexual knowledge introduces youth to a sexual terrain that is
too treacherous for them to navigate successfully .... Neither argument acknowledged the pleasure that
might await a person in sexual expression or relationships . . . . Unable to find any good reason for a
middle school student to know about a range of pleasurable experiences, including clitoral orgasms,
adults' impulse became to shut down learning and critical inquiry. For too many students, sex education
becomes an effort to do no more than help young people survive sexual danger"); LEVINE, supra note
153, at 90-116 (tracking and mourning the trajectory of safer sex education in U.S. public schools from
the 1970s until the beginning of the 21st century, and finding that as a result of religious and
conservative political organizing, the more comprehensive safer sex programs of the 1970s almost
entirely surrendered to abstinence and abstinence-only models by the 1990s and early 2000s); Cathy J.
Cohen, Black Sexuality, Indigenous Moral Panics, and Respectability, in MORAL PANICS, SEX PANICS:
FEAR AND THE FIGHT OVER SEXUAL RIGHTS 104, 123 (Gilbert Herdt ed., 2009) ("The retreat from
comprehensive sex education in the public schools may be one of the most significant attacks on
challenging HIV and AIDS in black communities as well [as] protecting the sexual rights [of] people of
color. Public schools are one of the few places-other than prisons-where we have the chance to
intervene in the lives of significant numbers of black and Latino children, challenging and changing how
they think about sex; how they think about themselves; and how they think about HIV and AIDS.").
280. Bryden, supra note 235, at 409.
2010] 329
Yale Journal of Law and Feminism
punishment for all sexually violent or coercive acts. Schulhofer specifies
different degrees of proscribed sexual conduct that warrant different levels of
punitive or civil response.282 One can and should advance an affirmative
standard of consent without presuming that all convicted defendants deserve
the same punishment.
4. Objection: Why Not Abolish All Per Se Proscriptions and Status
Distinctions in Place ofAffirmative Consent?
If sexual choice matters, then what marks the difference between the law
denying the sexual agency of a young person and a person constricting the
choices of a young person? If, as I have been arguing (and as Schulhofer
argues), an under-thought problem in sexual coercion and violence is the fact of
restricting another's choices and dismissing another's desires, then the law just
as surely regulates desire when it forbids a young person to be sexual as does a
person when he forces a young person to be sexual. Beginning in the 1970s,
some gay rights activists called for the abolition of age of consent laws for this
283 284
reason, a position advanced by some later writings as well. Objections to
age of consent laws were also objections to selective, homophobic, and racist
enforcement patterns. 285
The three replies here are cursory, since their substantive force has been
implicit or explicit throughout the Article. First, the analogy is not apt. In the
case of law, sexual activity is being prohibited. In the case of forced sex, sexual
activity is being compelled. While both scenarios impact sexual autonomy, like
any other legal right sexual autonomy must be balanced against other rights.
Until the harms that result from abstaining from sex are shown to be equivalent
to the harms of forced sex, the parallel between restriction by law and pressured
sex by persons should not be overdrawn.
281. For discussions of the distinctions between stranger and date rape, see CARINGELLA, supra
note 34, at 87; and Schulhofer, supra note 78, at 57. In addition, Estrich argues that a hard and fast
distinction minimizes the harms and disqualifies the prosecutions of acquaintance rape cases, while
Lynne Henderson suggests that collapsing this distinction trivializes more violent, non-acquaintance
sexual assaults. ESTRICH, supra note 261, at 8-26; Lynne Henderson, What Makes Rape a Crime?, 3
BERKELEY WOMEN's L.J. 193, 224-29 (1988) (although concluding that both "simple" and "stranger"
rapes should be criminal).
282. See Schulhofer, supra note 78, at 281 ("Criminal sanctions are . . . out of place in most
consensual sexual relationships between supervisors and subordinates or between teachers and students .
. . the risks point to the need for safeguards that are less severe and more flexible than the sanctions of
criminal law.") (emphasis added). He also presents a "Model Criminal Statute for Sexual Offenses." Id.
at 283-84.
283. See supra text accompanying notes 44-45.
284. Id.; see also Schaffner, supra note 86, at 203-04 (arguing that statutory rape laws should be
repealed, and that forcible rape laws and laws against child sexual abuse, properly enforced, are
adequate safeguards for young people's sexual autonomy).
285. Delgado, supra note 68; Rubin, supra note 76; Schaffner, supra note 86; see supra text
accompanying notes 44-45.
330 [Vol. 22:2
Per Se or Power? Age and Sexual Consent
Second, the regulations on sex in relations of dependence are designed
precisely to encode autonomy, on the presumption that those relations pollute
the possibility of willed agreement. The law need not pretend that a seventeenyear-old
cannot want to have sex with her psychotherapist, but rather that her
autonomy is better protected through restricting her behavior regardless, since
she cannot reasonably say no in the relationship, since the sex may become a
condition of the treatment, and since her structural vulnerability will more
likely than not contribute to present or future harm.286
Third, desires are not prediscursive. In a 1978 France-Culture radio
interview on intergenerational sex and the recriminalization of the "sex
offender," Michel Foucault concluded, "[a]n age barrier laid down by law does
not have much sense. Again, the child may be trusted to say whether or not he
was subjected to violence."287 And Guy Hocquenghem seconded, "[1]isten to
what the child says and give it a certain credence. This notion of consent is a
trap, in any case. What is sure is that the legal form of an intersexual consent is
nonsense. No one signs a contract before making love." 288
Linda Alcoff effectively counters these arguments in her mostly measured,
mostly exacting, Dangerous Pleasures: Foucault and the Politics of
Pedophilia.28 Although for Foucault power is diffuse, productive, micro- and
multi-directional, its grounding coordinates for sex and sexuality, at least in the
radio interview, are relatively fixed: the law, sexology, psychiatry, and their
concomitant discourses. For Alcoff, gender and age too, as eroticized power
differentials, constitute or at least mediate sexuality and the desire for object
choices. Media, law, academia, and psychology condition the experiences of
pleasure and desire, cultural judgments internalized differentially across social
strata. Alcoff argues:
It is a mistake to think that putting forward such judgments [about sex
between adults and minors] will necessarily result in an overall increase in
repression: the repression of adult-child sex may effect a decrease in the
constraints by which children's own sexual energies are policed, managed, and
There is no necessary contradiction between a view that takes seriously the
connection among discourse, power, and sexuality, and a politics of sexuality
that repudiates various sexual pleasures.290
286. See supra text accompanying notes 85-88, 204-207.
287. Michel Foucault, Guy Hocquenghem & Jean Danet, Sexual Morality and the Law, in
(Lawrence D. Kritzman ed., 1988) (radio transcript).
288. Id. at 285.
289. Linda Martin Alcoff, Dangerous Pleasures: Foucault and the Politics of Pedophilia, in
290. Id. at 111. However, the critical purchase Alcoff achieves interrogating the socialization of
desire is hampered in the latter half of her essay. By way of graphic descriptions of child sexual abuse,
traumatic autobiogr

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