9 Sex, Law, and Consent

Abstract

Abstract This chapter discusses the views of some radical feminists and queer theorists, who have sought to undermine the distinction between consensual and nonconsensual sex. The chapter is organized as follows. The first part argues briefly that both the (relatively new) queer theoretic and the (getting on now) radical feminist arguments against the liberal reliance on consent as the demarcation between rape and sex are misguided. The second part describes one specific type of harm—the harm caused by unwanted and unwelcome but nevertheless fully consensual sex—that the legitimation of consensual sex has the consequence of denying or at best obfuscating, and argues why those harms are important, even if they are not and should not be the target of criminal sanction. The third part tries to account for our relative failures to better understand them. Specifically, it explores some of the reasons they have generally escaped the notice, not only of liberal legalists concerned with rape and rape law reform, but also of liberalism's critics, primarily radical feminists and queer theorists. Finally, the chapter suggests that those are not good reasons, and that legal theorists should focus more than they do on consensual sexual harms and their relation to law, in the intimate sphere, no less than they do in their political and economic lives.