I worry they misunderstand consent as based on one's will and conflate it with desire, one can desire something yet not want it and one can want something and not entirely desire it.
http://moritzlaw.osu.edu/students/groups/osjcl/files/2016/07/Consent-Culpability-and-the-Law-of-Rape-Ferzan.pdfIt then argues that the best conception of consent—one that reflects what consent really is—is the conception of willed acquiescence. That is, an internal choice to allow contact—a decision that “this is okay with me”—is all that is morally required for one person to contact another.
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To this point, I have argued that if consent is derived from our autonomy, then we ought to be able to change the permissibility of the act by an act of will alone. The corollary of this argument is that an individual is not wronged, and does not experience conduct as a wrong, when willed acquiescence is present.
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Still, the point remains that a person is not wronged when he has chosen to allow the act. Whether viewed as “willed acquiescence,” “choice,” or “willingness in fact,” the idea remains the same—it is the internal mental action of the consenter that determines whether it is permissible for the other person to act.
http://sci-hub.la/10.1007/s10982-005-8705-0In this section, I argue that consent is not a desire state, but a choice, and that our evaluation of this choice mirrors our evaluation of choices by which we hold people responsible for criminal acts.
At the outset, Westen claims that our core conception of consent is a desire state. He begins by canvassing a range of attitudes that a person may have about intercourse – unconditional desire, ‘‘all things considered’’ desire, indifference, authorization, and aversion – and concludes that a jurisdiction may choose any of the first three as sufficient for factual attitudinal consent.46 To Westen, to consent is to desire, in some form or another, and there is ‘‘no single mental state’’ to which consent refers.47 At one point, however, Westen is more insistent: ‘‘factual attitudinal consent can be conceptualized – and, I believe, ought to be conceptualized—as consisting invariably of mental states of desire alone....’’48
It is curious that Westen reaches this conclusion. He is not relying on ordinary usage. As he notes, jurisdictions define consent as ‘‘an operation of mind’’ and ‘‘a belief,’’ and neither of these constructions entails that consent is a desire state.49 Thus, Westen does not analyze ordinary uses to reveal what ‘‘such jurisdictions have in mind,’’ as he claims.50
Factual attitudinal consent cannot be conceptualized as a desire. The ‘‘core’’ of consent, even if it is, itself, insufficient to alter rights and duties, must be, at the very least, the type of mental state that is capable of doing so. A desire state simply cannot play this role. We cannot directly control our desires.51 And, the weighing of our desires must be distinguished from choosing to act on those desires. For example, it may be true that most women have an ‘‘all things considered’’ desire to have protected nonconsensual intercourse rather than being killed, even if never faced with that horrific choice. Are these women factually attitudinally consenting all of the time to hypothetical rapists? Of course not. As Westen tells us, there are other requirements for factual attitudinal consent, including consciousness, reflective capacity, and an exercise of that capacity, but desires simply do not entail these requirements.
Desires are even less likely candidates for consent’s empirical core, once we look to the legal requirement of voluntariness. Does it make sense to say that the Travis County victim was forced to desire intercourse with her rapist? Or that an intoxicated woman lacks the capacity to desire intercourse? How can the requirements of motivation, knowledge, and capacity be seen as modifying what the putative victim desires? These requirements are simply incongruous with the view that the core of consent is itself a desire.
What ultimately matters is not that one has a desire but that one chooses to act based on that desire.52 The desire does not do the work – the choice does. Because consent has the power to transform the moral status of an action, consent must be a product of will.53 As Westen, himself, argues, ‘‘the primary harm of rape is a function of a putative victim’s mental state: if a putative victim subjectively and voluntarily chooses an act of sexual intercourse, she does not suffer the primary harm of rape; if she does not subjectively and voluntarily choose an act of sexual intercourse, she does suffer the primary harm of rape.’’54
http://sci-hub.la/10.1007/BF01000920Contrary to MacKinnon's assertion, women also can tell the difference between rape and "bad sex". Many women have had heterosexual intercourse with little pleasure, but without feeling frightened or coerced at the time or dirty, shamed, or in pain afterwards. I use the common phrase "bad sex" to capture this realm of experience which needs to be understood in the context of beliefs about women, rape, and heterosexuality.101 The phrase "bad sex" covers a range of heterosexual interactions for women: their partner was clumsy; their mood or their partner's mood affected the interaction; they lost their desire but felt they should let the man continue to orgasm, either because they believed things were "too far along" to stop of they wanted to avoid a hassle or because they cared about the man; and so on. The movie "Annie Hall" contains a scene, which prompted much knowing female laughter in the theater when I saw it, in which Diane Keaton "leavers" her body and sits on the edge of the bed while Woody Allen carries on. I do no think there would have been that kind of warm laughter if we thought he was raping of frightening her. Women and men - have sexual relations that they later regret. Nevertheless, in "bad sex", women do not feel raped, if for no other reason than they are exercising some agency.
So I disagree with the author in that she implies an inferior concept of consent, consent as desire, which can not function in place of a subjective will.
And I worry that any attempts to change things in regards to any disregard and reduction of women's humanity is focused on law when the issue is broader than judicial. A task which the law is inadequate to change as conservative as it is and shows a weakness in activist theorizing.
Sexual violence should be treated on the same scale as a societal health problem.
Rape Beyond Crime - Margo KaplanPublic health experts agree that sexual violence constitutes a significant public health issue. Yet criminal law dominates rape law almost completely, with public health law playing at best a small supporting role. Recent civil law developments, such as university disciplinary proceedings, similarly fixate on how best to find and penalize perpetrators. As a result, rape law continues to spin its wheels in the same arguments and obstacles.
This Article argues that, without broader cultural changes, criminal law faces a double bind: rape laws will either be ineffective or neglect the importance of individual culpability. Public health law provides more promising terrain for rape prevention because it is a strong legal framework that can engage the complex causes of rape, including the social norms that promote sexual aggression. While criminal law can only punish bad behavior, public health interventions can use the more effective prevention strategy of promoting positive behaviors and relationships. They can also address the myriad sexual behaviors and social determinants that increase the risk of rape but are outside the scope of criminal law. Perhaps most importantly, public health law relies on evidence-based interventions and the expertise of public health authorities to ensure that laws and policies are effective.
Transforming rape law in this way provides a framework for legal feminism to undertake the unmet challenge of “theorizing yes,” that is, moving beyond how to protect women’s right to refuse sex and toward promoting and exploring positive models of sex. Criminal law is simply incapable of meeting this challenge because it concerns only what sex should not be. A public health framework can give the law a richer role in addressing the full spectrum of sexual attitudes and behaviors.
Following the above, I think its a fair point that the law can only play on the negative elements of sexuality and isn't going to promote a healthy sexuality among the populace, it's dealing with those suspected of crimes.
As such, the battle ground I think is of course the major ideological institution of our countries, education.
Where the is often a fierce battle over kids being talk sex and even then that its reduced to a aversion of STDs and pregnancy, treating the body as a biological danger zone.
An effective approach will require a more substantial, consistent, and long-term investment in public education curricula. Programs with the greatest evidence of effectiveness focus on changing social attitudes and norms and improving peer-helping and conflict-resolution skills.286 Countries such as the Netherlands, for example, provide models for evidence-based, age-appropriate curricula that address sexual coercion and teach positive relationship skills. Students in the Netherlands begin to discuss love and respect at age four as part of a comprehensive sexuality program that progresses throughout each school year.287 As they reach eight, students discuss self-image and gender stereotypes; eleven-year-olds discuss sexual orientation and contraceptive options.288 Lessons help children discuss—in addition to the mechanics of sex and disease prevention—what types of intimacy feel good and what types do not, as well as how to express and respect personal boundaries.289
Sexuality is a major part of people's lives, but its also an interpersonal relation and not simply a physical act. Something which largely neglected in being taught across the world, leaving people have to find their own way. Which of course many do haphazardly more than they would if given more tools for understanding. Such changes in this scale would underpin cultural changes that put connotations in how the public interprets sexual violence. Could have the best laws in the world, don't mean shit when got a judge and or jury who thinks of women wearing a skirt as provocative (cojoined with the idea of uncontrollable male desire, which reduces men to animals but somehow doesn't impose restrictions on them socially in many cases).
https://philpapers.org/archive/WOLPDA-3.pdfThe argument can be summarized as follows: if women know that men will view certain outfits as provocative, then it is foolish and even dangerous for them to wear such outfits and complain if they receive unwanted sexual advances. But this conclusion is too hasty. What exactly are women being blamed for in this argument? The above quotes imply that men are less blameworthy for their unwanted sexual behavior toward women because they understandably see some outfits as sexually inviting, so women may be blamed for objecting to sexual advances that they have implicitly invited. But if we deny that it is prima facie reasonable for men to infer a generalized sexual invitation from women’s outfits and that men’s sexual arousal can excuse inappropriate behavior, then the belief that men should be excused for acting on the assumption that scantily clad women are inviting sexual attention is much less plausible.
Even if it is unreasonable for men to assume that a scantily dressed woman is seeking sexual attention, perhaps women might still be criticized for being imprudent for wearing clothing that they know is likely to be interpreted as sexually inviting. This argument differs from that described above, in which men are viewed as less blameworthy because of their beliefs about women’s sexual intentions. To blame a woman for being imprudent is to criticize her for not exercising sufficient self-protection, but that does not mitigate the responsibility or blameworthiness of men who sexually harass her. As an analogy, consider a case in which an African-American man talks to a white woman in the segregated South. In those circumstances, he might be violently attacked for speaking to her. Perhaps his behavior could be criticized on the grounds that he shows insufficient care for his own safety. But does that mean that if he is attacked, his attackers’ actions should be excused? Does his imprudence diminish their moral responsibility? No. The question we should be asking is: Why was it dangerous for him to speak to a white woman in the first place? Talking to a white woman is not inherently dangerous. Doing so in the segregated South was dangerous only because of preexisting racist beliefs and practices that made an otherwise normal exercise of personal autonomy extremely risky. If the African-American man is attacked, the correct focus of blame and responsibility should be the men who attacked him and the social conditions that created the threat of attack.
Likewise, there is nothing inherently dangerous about wearing revealing clothing. In fact, there is nothing inherently sexual about such clothing106 or about women’s bodies. For example, in some cultures, including some indigenous Australian cultures, women’s breasts are not sexualized, and topless female attire is common.107 In Western culture, too, there are many contexts in which revealing and tight-fitting clothing—and even nudity—is not sexualized, such as during drawing classes with nude models, and at dance rehearsals, swimming classes, and the gym. When and if revealing clothing and women’s body parts are sexualized depends on a complex set of factors including context as well as religious and social meanings. Thus, it is only potentially dangerous for women to wear revealing or tight-fitting outfits because of entrenched sexist beliefs and practices. These beliefs and practices include the idea that women who wear tight or revealing outfits want sexual attention, that women are “asking for it,” that men are entitled to sexually approach women, and that women are responsible for men’s sexual behavior. These preexisting practices unfairly influence women’s decisions about what to wear with the fear of “sending the wrong message” and the threat of unwanted sexual attention.
Standards which are often based on what we consider to be a meaningful condition for a woman's consent to be valid rather than coerced to the extent their consent is invalid.
http://moritzlaw.osu.edu/osjcl/Articles/Volume2_1/Commentaries/Westen-PDF-11-29-04.pdfThere are issues with the legal system but I a lot of it has to do more with
how it functions in practice (materialization of culture) than it does with the policies themselves, except if one is really drilling down on the details.
Women's pleasure is important but the law will never consider it because it has no apparent significant to whether something is a crime or not.
But discussing a sexuality which is positive for women, of which there are women who experience as such, the intimacy, the pleasure, the fun, one can contrast such sexual standards where the subjective experience is clearly different from the fear, intimidation, shame, vulnerability that is experienced during and after sexual violence and intimidation. It would help break normative ideas some people have by pressing a new standard, but one would have to struggle against a bunch of fucking wowsers to get that implemented.
The notions one has to challenge in regards to entitlement and men's sexual desires above those of women entail things like uncontrobllable male desire that when "provoked" enters women into a contractual agreement of sex rather than an ongoing mutual one. The sort of amibvalent sexism that idolizes a conservative woman but soon as a woman steps outside such bounds she becomes a whore and subject to attack, most particularly when she is powerful, to send a message of terror to other women to not try and elevate themselves. Even when done in a decentralized social way in which men sexually harass women on the street.
http://www3.aifs.gov.au/acssa/pubs/sheets/rs6/rs6.pdfHowever, all of these forms of sexual harassment are interconnected, regardless of intent or the way they are experienced by the recipient, as "the remarks serve multiple functions of social control" (Kissling, 1991, p. 455). Kissling denoted this harassment as a form of "sexual terrorism", which serves to remind women of their status as sexual objects, and "of their vulnerability to these and other violations" (p. 455). It is here that the interconnections between sexual harassment and more severe forms of sexual violence are most apparent. Firstly, sexual harassment functions as a reminder to women of the threat or possibility of something "more serious" occurring, therefore rendering women as sexually vulnerable (Crouch, 2009; Kissling, 1991; Laniya, 2005; Macmillan et al., 2000; Tuerkheimer, 1997). Secondly, both sexual harassment and sexual violence remove women's sexual and bodily autonomy (MacKinnon, 1979), curtail women's behaviour, and are used to threaten, intimidate, and harm women.
As such behaviour imposes limitations on the autonomy of women, but many women aren't as privy to benevolent sexism, so the task is to effectively remove the threat so that there can be no paternalistic control of women legitimizes on assertions of other threatening hostile men.
And there is the issue in that groups with a lowered status on average, tend to be silenced not for a lack of speaking but because they are ignored.
Men do not lack ignorance, rather it's that many men are cultivated to ignore women effectively.
http://www.academia.edu/17186605/Sexual_Harassment_and_Masculinity_The_Power_and_Meaning_of_Girl_WatchingIn this analysis, I have sought to unravel the social logic of girl watching and its relationship to the question of gender differences in the interpretation of sexual harassment. In the form analyzed here, girl watching functions simultaneously as only play and as a potent site where power is played. Through the objectification on which it is premised and in the non-empathetic masculinity it supports, this form of girl watching simultaneously produces both the harassment and the barriers to men's acknowledgment of its potential harm.
The implications these findings have for anti-sexual harassment training are profound. If we understand harassment to be the result of a simple lack of knowledge (of ignorance), then straightforward informational sexual harssment training may be effective. The present analysis, suggests, however, that the etiology of some harassment lies elsewhere. While they might be quarreled with it, most of the men interviewed had fairly good abstract understandings of the behaviours their companies' sexual harassment policies prohibited. At the same time, in relating stories of social relations in their workplaces, most failed to identify specific behaviours as sexual harassment when they matched the abstract definition. As I have argued, the source of this contradiction is not so much in ignorance but in acts of ignoring. Traditional sexual harassment training programs address the former rather than the later. As such, their effectiveness against sexually harassing behaviours born out of social practices of masculinity like girl watching is questionable.
Many men bond through sexism which obstructs their empathy for the position of women as recipient of their behaviour.
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