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This is an article about sex and rape and the messy determinations of consent that mark the boundary between the two. More specifically, the article evaluates the modern baseline presumption of non-consent in sexual encounters in light of different theories of sexuality (feminism on the one hand and sex positivism/queer theory on the other) and in light of how sexuality manifests itself in the lives of contemporary young people. We analyze sexting, media imagery and hook-up culture to find that neither feminism nor sexpositivism provide an accurate account of contemporary sexuality, but neither theory gets it all wrong either. The gendered scripts that troubled feminists continue to govern many casual sexual encounters. What has changed is the extent to which women embrace their own sexual agency and their clear rejection of 2nd wave feminism’s messages with regard to gender and sexual objectification. Empirical work confirms that the sexual encounters that many young women participate in could be classified as rape under the modern legal presumption of non-consent, but most women reject classifying what happens as rape. Their belief in their own agency allows women to construct away their injury. This suggests that nonconsensual sex may not be or is not perceived by its victims to be as injurious as some feminists suspected, but it also means that sex positivists need not worry about over-deterring sex. Women who don’t feel injured, don’t bring rape charges. Moreover, our analysis shows that despite, or perhaps because of, women’s celebration of their own sexual objectification, a great deal of unwanted sex happens, whether consented to or not. This means that while the presumption against consent may not have much effect, it likely does little harm, and if it deters anything it likely deters unwanted sex, whether consented to or not.


Special Issue: Feminist Legal Theory

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