Disabling Consent, or Reconstructing Sexual Autonomy

Abstract

C. Sexual Autonomy [not equal to] Consent Despite Rubenfeld's and Spindelman's otherwise contrary critiques of sexual autonomy--overreaching and under-protective, respectively--both authors equate sexual autonomy with consent. If sexual assault law is premised on consent, warns Rubenfeld, we are obliged to send teenagers to prison for lying about their age in order to have sex. (67) If sexual assault law is premised on consent, warns Spindelman, gay men can infect one another with HIV with impunity, and there is no actionable harm. (68) But what if sexual autonomy denotes something other than, or something more than, first person present active (or passive) consent? Before elaborating that something--that is, before retrieving and then defending a reconstructed, relational, and feminist sexual autonomy--we revisit Rubenfeld's and Spindelman's cases of sexual autonomy gone wild. What inklings are there, in these authors' own examples, of sexual autonomy theorized otherwise? D. Three Seventeen-Year-Olds In his gauntlet-thrown offensive, as well as in the reply to his critics, (69) Rubenfeld repeatedly circles back to teenagers and teenage sex, and specifically to sex with and between seventeen-year-olds. (70) The seventeen-year-old, on the eroticized precipice of majority, (71) is the character that dramatizes the deficiencies of sexual autonomy. But each of his three teen sex scenarios could and should be spun differently, shoring up the possibilities, rather than the pitfalls, of sexual autonomy. We briefly summarize each of his scenarios and amend them with a few provocations--provocations to be fleshed out in Parts II and IV. 1. Seventeen-Year-Old #1 If sexual autonomy is equivalent to consent, then sex-by-deception--any deception--is, concludes Rubenfeld, equivalent to sexual assault. If a seventeen-year-old lies to have sex with an older partner, consent is thereby compromised, the teen therefore assaultive. Rubenfeld appeals to a liberal-leaning, feminist-friendly audience. Are we prepared to incarcerate a seventeen-year-old girl for lying about her age to have sex with an older man? (72) If not, there is but one plausible option: junk nonconsent and reinstate force requirements. (73) First, we should recognize the statistical infrequency of this teen lie, or mootness of the lie (if the lie is told to convince an otherwise law-abiding but libidinal citizen). Rubenfeld mistakenly (or misleadingly) presupposes that the age of consent for sexual conduct is eighteen, a commonly held misperception. But in nearly all states the age of consent is sixteen; (74) so too, nearly all states include age-span provisions in their sexual assault codes. (75) In many states, for example, it is legal for anyone of any age to have sex with a sixteen-year-old, but only those seventeen and under are permitted to have sexual relations with fourteen-year-olds. (76) To the extent that this lie occurs, and occurs to convince a suitor of the ensuing sex's legality, the more likely scenario would be the following: a fourteen-year-old lies about her age to have sex with someone eighteen or nineteen. (77) To compete on Rubenfeld's rhetorical plane: a high school freshman lies about her age to have sex with a college freshman or college sophomore. In this circumstance, we may more justifiably conclude that the high school freshman is not accountable for sexual assault, but because she is not accountable to sex. In other words, we do not hold her criminally accountable for the lie for the same reason the law proscribes sex with her: she is not as capable a decision maker--on account of experiential, educational, and developmental differences--as an older teenager or adult. This legal fiction--an incompetent and thus innocent fourteen-year-old--is more palatable to liberals and sex progressives than the fiction of the incompetent and thus innocent seventeen-year-old. (78) This observation about the extant age of sexual consent law segues to the second and more important criticism of the lying teenager hypothetical. …