In the law of rape, consent has been and remains a gendered concept. Consent presumes female acquiescence to male sexual initiation. It presumes a man desires to penetrate a woman sexually. It presumes the woman willingly yields to the man's desires. It does not presume, and of course does not require, female sexual desire. Consent is what the law calls it when he advances and she does not put up a fight. I have argued elsewhere that the kind of thin consent that the law focuses on is not enough ethically and it should not be enough legally to justify sexual penetration. I advocate sexual negotiation, where individuals discuss sexual desires and boundaries and agree to engage in penetration before it occurs, except under circumstances in which the partners have a reasonable basis to assess one another's nonverbal behavior. I argue that not only is verbal consultation about desire ordinarily ethically necessary before most acts of sexual penetration, it should be legally required. Consultation to ascertain sexual desires and boundaries assures that both parties desire penetration. One challenge often posed by those who object to a legal requirement of negotiation before penetration is that people do not know how to engage in the required consultation. This Article attempts to address that challenge. Although teens and young adults increasingly do communicate about desires and boundaries, mainstream media offers few examples of sexual negotiation and sex education in schools rarely teaches it.
Michelle J. Anderson,
Sex Education and Rape,
Mich. J. Gender & L.
Available at: https://repository.law.umich.edu/mjgl/vol17/iss1/5