Sei sulla pagina 1di 28

Date Rape: A Feminist Analysis

Author(s): Lois Pineau


Source: Law and Philosophy, Vol. 8, No. 2 (Aug., 1989), pp. 217-243
Published by: Springer
Stable URL: http://www.jstor.org/stable/3504696
Accessed: 20/04/2009 18:43

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at
http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless
you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you
may use content in the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at
http://www.jstor.org/action/showPublisher?publisherCode=springer.

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed
page of such transmission.

JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the
scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that
promotes the discovery and use of these resources. For more information about JSTOR, please contact support@jstor.org.

Springer is collaborating with JSTOR to digitize, preserve and extend access to Law and Philosophy.

http://www.jstor.org
LOIS PINEAU

DATE RAPE: A FEMINIST ANALYSIS

ABSTRACT.This papershowshow the mythologysurroundingrapeentersinto


a criterionof 'reasonableness'which operatesthroughthe legal systemto make
women vulnerableto unscrupulousvictimization.It exploresthe possibilityfor
changesin legal proceduresand presumptionsthat would betterservewomen's
interestsand leave them less vulnerableto sexualviolence.This requiresthat we
reformulatethe criterionof consent in terms of what is reasonablefrom a
woman'spointof view.

The feminist recognition that dominant ideologies reinforce concep-


tual frameworksthat serve patriarchalinterestslies behind what must
now be seen as a revolution in political analysis,one which for the
first time approachesthe problems that women face from a woman's
point of view. One of those problems is the ongoing difficulty of
dealing with a society that practices and condones violence against
women. This is particularly the case with date rape.
Date rape is nonaggravated sexual assault, nonconsensual sex that
does not involve physical injury, or the explicit threat of physical
injury. But because it does not involve physical injury, and because
physical injury is often the only criterion that is accepted as evidence
that the actus reas is nonconsensual, what is really sexual assault is
often mistaken for seduction. The replacement of the old rape laws
with the new laws on sexual assault have done nothing to resolve this
problem.
Rape, defined as nonconsensual sex, usually involving penetration
by a man of a woman who is not his wife, has been replaced in some
criminal codes with the charge of sexual assault.' This has the advan-

Geis,G. and R Geis.'RapeReform:An Appreciative-Critical Review',Bulletin


of theAmerican Academy and
of Psychiatry the Law 6, 301-312. Also see, Michael
Davis, 'SettingPenalties:What Does Rape Deserve',Law andPhilosophy 3, 61-
110.

LawandPhilosophy
8: 217-243, 1989.
C 1989KluwerAcademicPublishers. in theNetherlands.
Printed
218 LoisPineau

tage both of extending the range of possible victims of sexual assault,


the manner in which people can be assaulted, and replacing a crime
which is exclusive of consent, with one for which consent is a
defence.2 But while the consent of a woman is now consistent with the
conviction of her assailant in cases of aggravated assault, nonaggravated
sexual assault is still distinguished from normal sex solely by the fact
that it is not consented to. Thus the question of whether someone has
consented to a sexual encounter is still important, and the criteria for
consent continues to be the central concern of discourse on sexual
assault.3
However, if a man is to be convicted, it does not suffice to establish
that the actus reas was nonconsensual. In order to be guilty of sexual
assault a man must have the requisite mensrea, i.e., he must either have
believed that his victim did not consent or that she was probably not
consenting.4 In many common law jurisdictions a man who sincerely
believes that a woman consented to a sexual encounter is deemed to
lack the required mens rea, even though the woman did not consent,
and even though his belief is not reasonable.5Recently, strong dissent-
ing voices have been raised against the sincerity condition, and the
argument made that mens rea be defeated only if the defendant has a
reasonable belief that the plaintiff consented.6 The introduction of

2 Under Common Law a person cannot consent to aggravatedassault.Also,


consentmay be irrelevantif the victim was unfit to consent.See MichaelDavis
'SettingPenalties:WhatDoes RapeDeserve',104-105.
3 Discussion Paper No. 2, Rape and Allied Offenses:SubstantiveAspects, Law
ReformCommissionof Victoria,August(1986).
4 In a recentAustraliancase a man was convictedof
being an accompliceto a
rape because he was recklessin determining whether the woman rapedby his
friendwas consenting.The judge ruled that his 'recklessindifference'sufficed
to establishmensrea.This rulingwas possible,however,only becauseunreason-
LawReview71, 120.
ablebeliefis not a rapedefencein Australia.Australian
5 This is true, at present,in jurisdictionswhich follow the precedentset by
Morganvs. Morgan.In this case, four men were acquittedof rapebecausethey
sincerelythought that their victim had consented,despite their admittingthat
she had protested vigorously.See Mark Thomton's 'Rape and Mens Rea',
ofPhilosophy,Supp. Vol. VIII, 119-146.
CanadianJournal
6 Iid.
Date Rape:FeministAnalysis 219

legislationwhich excludes 'honest belief' (unreasonablesincere belief)


as a defence, will certainly help to provide women with greater
protection againstviolence. But while this will be an important step
forward, the question of what constitutes a reasonable belief, the
problem of evidence when rapists lie, and the problem of the en-
trenched attitudes of the predominantlymale police, judges, lawyers,
andjuristswho handlesexualassaultcases,remains.
The criteria for mensrea, for the reasonablenessof belief, and for
consent are closely related.For although a man's sincere belief in the
consent of his victim may be sufficient to defeat mensrea,the court is
less likely to believe his belief is sincereif his belief is unreasonable.If
his belief'is reasonable,they are more likely to believe in the sincerity
of his belief. But evidence of the reasonablenessof his belief is also
evidence that consent really did take place. For the very things that
make it reasonablefor him to believe that the defendantconsentedare
often the very things that incline the court to believe that she con-
sented. What is often missing is the voice of the woman herself, an
account of what it would be reasonablefor her to agree to, that is to
say,an accountof what is reasonablefrom herstandpoint.
Thus, what is presented as reasonablehas repercussionsfor four
separatebut related concerns: (1) the question of whether a man's
belief in a woman's consent was reasonable;(2) the problem of
whether it is reasonableto attribute mensrea to him; (3) the question
of what could count as reasonablefrom the woman'spoint of view, (4)
the question of what is reasonablefrom the court's point of view.
These repercussionsare of the utmost practicalconcern. In a culture
which contains an incidence of sexual assaultverging on epidemic, a
criterion of reasonablenesswhich regardsmere submissionas consent
failsto offer personsvulnerableto those assaultsadequateprotection.
The following statementsby self-confesseddate rapistsreveal how
our lack of a solution for dealing with date rape protects rapistsby
failingto providetheirvictimswith legal recourse:
All of my rapeshave been involved in a dating situationwhere I've been out
with a woman I know. ... I wouldn't take no for an answer.I think it had
somethingto do with my acceptanceof rejection.I had low self-esteemand not
much self-.confidence
and when I was rejectedfor somethingwhich I considered
220 LoisPineau

to be rightlymine, I becameangryand I went aheadanyway.And this was the


samein anysituation,whetherit was rapeor it wassomethingelse.7
* * *

When I did date,when I was younger,I would pick up a girl and if she didn't
come acrossI would threatenher or slapher face then tell her she was going to
fuck - that was it. But that'sbecauseI didn't want to waste time with any
come-ons.It took too much time. I wasn'tinterestedbecauseI didn'tlike them
as people anyway,and I just went with themjust to get laid.Just to say that I
laidthem.8
There is, at this time, nothing to protect women from this kind of
unscrupulousvictimization.A woman on a casual date with a virtual
strangerhas almost no chance of bringinga complaintof sexualassault
before the courts. One reason for this is the prevailingcriterion for
consent. According to this criterion, consent is implied unless some
emphatic episodic sign of resistanceoccurred,and its occurrencecan
be established.But if no episodic act occurred,or if it did occur, and
the defendantclaims that it didn't, or if the defendantthreatenedthe
plaintiffbut won't admit it in court, it is almost impossibleto find any
evidence that would supportthe plaintiff'sword againstthe defendant.
This difficulty is exacerbatedby suspicion on the part of the courts,
police, and legal educatorsthat even where an act of resistanceoccurs,
this act should not be interpretedas a withholding of consent,and this
suspicion is especially upheld where the accused is a man who is
known to the femaleplaintiff.
In Glanville Williams's classic textbook on criminal law we are
warned that where a man is unknown to a woman, she does not
consent if she expressesher rejection in the form of an episodic and
vigorous act at the 'vital moment'. But if the man is known to the
woman she must, according to Williams, make use of "all means
availableto her to repel the man".9Williams warns that women often
welcome a 'masteryadvance'and presenta token resistance.He quotes
Byron'scouplet,

7 WhyMenRape,SylviaLevine and JosephLoenig,eds., (Toronto:Macmillan,


1980),p. 83.
8
Ibid.,p. 77.
9 Williams,Textbook CriminalLaw
of (1983),p. 238.
DateRape:Feminist
Analysis 221

A littlestillshestrove,andmuchrepented
Andwhispering 'Iwill ne'erconsent'- consented
by way of alertinglaw studentsto the difficultyof distinguishing real
protest from pretence.'?Thus, while in a
principle, firm unambiguous
stand,or a healthyshow of temperought to be sufficient,if estab-
lished,to shownonconsent,in practicethe forcefuloverridingof such
a stanceis apt to be takenas an indicationthatthe resistancewas not
seriouslyintended,and that the seductionhad succeeded.The con-
sequenceof this is that it is almost impossibleto establishthe
defendant's guiltbeyonda reasonable doubt.
Thus,on the one hand,we have a situationin which women are
vulnerableto the mostexploitivetacticsat the handsof men who are
known to them. On the other hand, almostnothingwill count as
evidenceof their being assaulted,includingtheir having taken an
emphaticstancein withholdingtheir consent.The new laws have
done almost nothing to change this situation.Yet clearly,some
solutionmustbe sought.Moreover,the roadto thatsolutionpresents
itselfclearlyenoughas a need for a reformulation of the criterionof
consent.It is patentthata criterionthatcollapseswheneverthe crime
itselfsucceedswill notsuffice.
The purposeof this paperis to developsuch a criterion,and I
proposeto do so by groundingthis criterionin a conceptionof the
'reasonable'.Partof the strengthof the presentcriterionfor consent
lies in the beliefthatit is reasonablefor womento agreeto the kind
of sex involvedin 'daterape',or thatit is reasonable for men to think
that they have agreed.My argumentis that it is not reasonablefor
womento consentto thatkindof sex,andthattherearefurthermore,
no groundsfor thinkingthat it is reasonable. Sincewhatwe want to
knowis whena womanhasconsented,andsincestandards for consent
are basedon the presumedchoicesof reasonable agents, is what is
it
reasonablefrom a woman'spoint of view that must provide the
principaldelineationof a criterionof consent that is capableof
representinga woman'swilling behaviour.Developingthis line of

'0 Ibid.
222 Lois Pineau

reasoningfurther,I will argue that the kind of sex to which it would


be reasonablefor women to consent suggests a criterion of consent
that would bring the kind of sex involved in date rapewell within the
realmof sexualassault.

THE PROBLEM OF THE CRITERION

The reasoning that underlies the present criterion of consent is


entangledin a number of mutually supportivemythologieswhich see
sexual assaultas masterfulseduction, and silent submission as sexual
enjoyment.Becausethe prevailingideology has so much informedour
conceptualizationof sexualinteraction,it is extraordinarilydifficult for
us to distinguish between assault and seduction, submission and
enjoyment, or so we imagine. At the same time, this failure to
distinguishhas given rise to a network of rationalizationsthat support
the conflation of assaultwith seduction,submissionwith enjoyment.I
thereforewant to begin my argumentby providingan examplewhich
shows both why it is so difficult to make this distinction,and that it
exists.Later,I will identify and attempt to unravelthe lines of reason-
ing thatreinforcethis difficulty.
The woman I have in mind agreesto see someone becauseshe feels an initial
attractionto him and believesthat he feels that same way about her. She goes
out with him in the hope that therewill be mutualenjoymentand in the course
of the day or eveningan increaseof mutualinterest.Unfortunately,these hopes
of mutualand reciprocal interestare not realized.We do not know how much
interest she has in him by the end of their time together,but whateverher
feelingsshe comes underpressureto have sex with him, and she does not want
to have the kind of sex he wants. She may desire to hold hands and kiss, to
engage in more intense caressesor in some form of foreplay,or she may not
want to be touched.She mayhave reasonsunrelatedto desirefor not wantingto
engagein the kind of sex he is demanding.She may have religiousreservations,
concernsaboutpregnancyor disease,a disinclinationto be just anotherconquest.
She may be engagedin a seductionprogramof her own which sees abstaining
from sexualactivityas a meansof buildingan importantemotionalbond. She
feels she is desirableto him, and she knows,and he knows that he will havesex
with her if he can.And while she feels she doesn'towe him anything,and thatit
is her prerogativeto refusehim, this feelingis partlya defensivereactionagainst
Date Rape:FeministAnalysis 223

a deeplyheld belief that if he is in need,she shouldprovide.If she buysinto the


myth of insistentmale sexualityshe may feel he is sufferingfrom sexualfrustra-
tion andthatshe is largelyto blame.
We do not know how much he desiresher, but we do know that his desire
for erotic satisfactioncan hardlybe separatedfrom his desire for conquest.He
feels no datingobligation,but has a strongcommitmentto scoring.He uses the
myth of "so hard to control"male desire as a rhetoricaltactic,telling her how
frustratedshe will leave him. He becomesoverbearing.She resists,voicing her
disinclination. He alternatesbetweentellingher how desirableshe is and takinga
hostile stance,chargingher with misleadinghim, accusingher of wantinghim,
and being coy, in short of being deceitful, all the time engaging in rather
aggressivebody contact.It is late at night, she is tiredand a bit queasyfrom too
many drinks,and he is reaffirmingher suspicionthat perhapsshe has misled
him. She is havingtroubledisengaginghis body from hers,and wisheshe would
just go away. She does not adopt a stridentangry stance,partly becauseshe
thinkshe is actingnormallyand does not deserveit, partlybecauseshe feels she
is partlyto blame,and partlybecausethere is alwaysthe dangerthat her anger
will make him angry,possiblyviolent.It seems that the only thing to do, given
his aggression,and her queasyfatigue,is to go along with him and get it over
with, but this decision is so entangledwith the events in processit is hard to
know if it is not simply a recognitionof what is actuallyhappening.She finds
the whole encountera thoroughlydisagreeableexperience,but he does not take
any notice, and wouldn't have changed course if he had. He congratulates
himself on his sexual prowessand is confirmedin his opinion that aggressive
tacticspay off Later she feels that she has been raped,but paradoxicallytells
herselfthatshelet herselfbe raped.

The paradoxical feelings of the woman in our example indicate her


awarenessthat what she feels about the incident stands in contradic-
tion to the prevailingculturalassessmentof it. She knows that she did
not want to have sex with her date. She is not so sure, however,about
how much her own desires count, and she is uncertain that she has
made her desires clear. Her uncertainty is reinforced by the cultural
reading of this incident as an ordinary seduction.
As for us, we assume that the woman did not want to have sex, but
just like her, we are unsure whether her mere reluctance, in the
presence of high-pressure tactics, constitutes nonconsent. We suspect
that submissionto an overbearingand insensitivelout is no way to go
about attainingsexual enjoyment,and we further suspect that he felt
224 LoisPineau

no compunctionabout providingit, so that on the face of it, from the


outside looking in, it looks like a pretty unreasonablepropositionfor
her.
Let us look at this reasoningmore closely.Assume that she was not
attractedto the kind of sex offered by the sort of person offering it.
Then it would be primafacie unreasonablefor her to agree to have sex,
unreasonable,that is, unless she were offered some pay-off for her
stoic endurance,money perhaps,or tickets to the opera.The reasonis
that in sexual matters, agreement is closely connected to attraction.
Thus, where the presumptionis that she was not attracted,we should
at the same time presumethat she did not consent.Hence, the burden
of proof should be on her alleged assailantto show that she had good
reasonsfor consentingto an unattractiveproposition.
This is not, however,the way such situationsare interpreted.In the
unlikely event that the example I have describedshould come before
the courts, there is little doubt that the law would interpret the
woman's eventual acquiescence or 'going along with' the sexual
encounteras consent.But along with this interpretationwould go the
implicit understandingthat she had consented because when all was
said and done, when the 'token'resistancesto the 'masterfuladvances'
had been made she had wanted to after all. Once the courts have
constructed this interpretation,they are then forced to conjure up
some horror story of feminine revenge in order to explain why she
shouldbringchargesagainsther 'seducer'.
In the even more unlikely event that the courts agreed that the
woman had not consented to the above encounter, there is little
chance that her assailant would be convicted of sexual assault.1' The
belief that the man's aggressivetactics are a normal part of seduction
means that mens rea cannot be established. Her eventual 'going along'

" SeeJeanneC. Marsh,AllisonGeist,and NathanCaplan,RapeandTheLimitsof


LawReform(Boston:AuburnHouse, 1982),p. 32. Accordingto Marsh'sstudyon
the impactof the Michiganreformof rapelaws,convictions
wereincreased
for
traditional
conceptionsof rape,i.e.,aggravated
assault.
Howeverdate-rape,
which
has a much higherincidencethanaggravated
assault,has a very low rateof arrest
andan evenlowerone of conviction.
DateRape:Feminist
Analysis 225

with his advancesconstitutesreasonablegroundsfor his believingin


her consent.These 'reasonable' groundsattestto the sincerityof his
beliefin her consent.This reasonableness meansthat mensreawould
be defeatedeven in jurisdictionswhich make mensreaa functionof
objectivestandards of reasonableness.Moreover,the sympathyof the
courtis morelikelyto lie with the rapistthanwith his victim,since,is
the court is typical,it will be stronglyinclinedto believethat the
victimhadin someway'askedforit'.
The positionof the courtsis supportedby the widespreadbelief
that male aggressionand female reluctanceare normal parts of
seduction.Given their acceptanceof this model, the logic of their
responsemust be respected.For if sexual aggressionis a part of
ordinaryseduction,then it cannotbe inconsistentwith the legitimate
consentof the personallegedlyseducedby this means.And if it is
normalfor a woman to be reluctant,then this reluctancemust be
consistentwith her consentas well. The positionof the courtsis not
inconsistent just so long as theyallowthatsomesortof proteston the
partof a womancounts as a refusal.As we have seen, however,it
frequentlyhappensthatno sortof a protestwouldcountas a refusal.
Moreover,if no sortof protest,or at leastif preciousfew count,then
the failureto registertheseprotestswill amountto 'askingfor it', it
will amount,in otherwords,to agreeing.
The court'sbeliefin 'natural'male aggressionand 'natural'female
reluctancehas increasingly come underattackby feministcriticswho
see quitecorrectly that the entirelegalpositionwould collapseif, for
example,it wereshownempiricallythatmen were not aggressive, and
thatwomen,at leastwhen they wantedsex, were.This strategyis of
little help,however,so long as aggressivemen can still be found,and
relicsof reluctantwomen continueto surface.Fortunately, there is
anotherstrategy.The positioncollapsesthroughthe weaknessof its
internallogic.Thenextsectiontracestheseverallinesof thislogic.

RAPE MYTHS

The belief that the naturalaggressionof men and the naturalreluc-


tanceof women somehowmakesdate rapeunderstandable underlies
226 LoisPineau

a number of prevalentmyths about rape and human sexuality.These


beliefs maintaintheir force partly on account of a logical compulsion
exercisedby them at an unconsciouslevel. The only way of refuting
them effectively,is to excavatethe logical propositionsinvolved, and
to expose their misapplicationto the situations to which they have
been applied.In what follows, I proposeto excavatethe logical support
for popular attitudes that are tolerant of date rape. These myths are
not just popular, however, but often emerge in the arguments of
judges who acquit date rapists, and policemen who refuse to lay
charges.
The claim that the victim provoked a sexual incident, that 'she
asked for it', is by far the most common defence given by men who
are accused of sexual assault.2 Feminists, rightly incensed by this
response,often treat it as beneath contempt, singling out the defence
as an argumentagainstit. On other fronts, sociologistshave identified
the responseas part of an overall tendency of people to see the world
as just, a tendency which disposes them to conclude that people for
the most part deservewhat they get.'3 However, an inclination to see
the world asjust requiresus to constructan accountwhich yields this
outcome, and it is just such an account that I wish to examine with
regardto date rape.
The least sophisticatedof the 'she asked for it' rationales,and in a
sense, the easiestto deal with, appealsto an injunctionagainstsexually
provocativebehaviouron the part of women. If women should not be
sexually provocative, then, from this standpoint, a woman who is
sexuallyprovocativedeservesto suffer the consequences.Now it will

12 See Marsh,p. 61, for particulargood exampleof this response.Also see


John
M. MacDonald,'Victim-PrecipitatedRape', Rape: Offendersand their Victims
(Illinois:CharlesC. Thomas, 1971), pp. 78-89, for a good example of this
responsein academicthinking.Also see MenachemAmir, Patternsin Forcible
Rape(Universityof ChicagoPress,1972),p. 259.
13 See EugeneBorgidaand NancyBrekke,'Psycholegal Researchon RapeTrials',
in RapeandSexualAssault,Ann WobertBurgess,ed., (New York:GarlandPress,
1985),p. 314. Also see M. J. Lerner,'The Desire for Justice and Reactionsto
Victims',AltruismandHelpingBehaviour,J. Macaulayand L. Berkowitz,eds. (New
York:AcademicPress,1970).
DateRape:Feminist
Analysis 227

not do to respondthat women get rapedeven when they are not


sexuallyprovocative, or thatit is men who get to interpret(unfairly)
what countsas sexuallyprovocative.14 The questionshouldbe:Why
shouldn'ta womanbe sexuallyprovocative? Why shouldthis behav-
iourwarrantanykindof aggressive response whatsoever?
Attemptsto explainthatwomenhavea rightto behavein sexually
provocativewayswithoutsufferingdire consequences still meet with
surprisingly tough resistance.
Even peoplewho find nothingwrongor
sinfulwith sex itself,in anyof its forms,tend to supposethatwomen
mustnot behavesexuallyunlesstheyarepreparedto carrythroughon
some fuller courseof sexualinteraction.The logic of this response
seemsto be that at some pointa woman'sbehaviourcommitsher to
followingthroughon the full courseof a sexualencounteras it is
definedby her assailant. At somepointshe hasmadean agreement, or
formeda contract,andonce thatis done,her contractoris entitledto
demandthat she satisfythe termsof that contract.Thus, this view
aboutsexualresponsibility and desertis supportedby other assump-
tionsaboutcontractsandagreement. But we do not normallysuppose
that casualnonverbalbehaviourgeneratesagreements.Nor do we
normallygrantprivatepersonsthe right to enforcecontracts.What
rationalewouldsupportourconclusionin thiscase?
The rationale,I believe,comes in the form of a belief in the
especiallyinsistentnatureof malesexuality,an insistencewhichlies at
the root of naturalmale aggression, and which is extremelydifficult,
perhapsimpossible to contain. At a certainpoint in the arousal
it is
process, thought, a man's rational will givesway to the preroga-
tivesof nature.His sexualneedcan anddoesreacha pointwhereit is
uncontrollable, andhis naturalmasculineaggressionkicksin to assure
thatthis needis met.Women,however,arenaturallymorecontained,
and so it is their responsibilitynot to provokethe irrationalin the
male. If they do go so far as that, they have both failed in their
and subjectedthemselvesto the inevitable.One does
responsibilities,

14
As, for example, Lorenne Clark and Debra Lewis do in Rape: The Price of
CoerciveSexuality(Toronto:The Women's Press, 1977), pp. 152-153.
228 Lois Pineau

not go into the lion's cage and expect not to be eaten. Natural
feminine reluctance,it is thought, is no protection againsta sexually
arousedmale.
This belief about the normal aggressivenessof male sexuality is
complementedby common knowledge about female gender develop-
ment. Once, women were taught to deny their sexualityand to aspire
to ideals of chastity.Things have not changed so much. Women still
tend to eschew conquest mentalitiesin favourof a combinationof sex
and affection. Insofar as this is thought to be merely a cultural
requirement,however, there is an expectationthat women will be coy
about their sexual desire. The assumptionthat women both want to
indulge sexually, and are inclined to sacrifice this desire for higher
ends, gives rise to the myth that they want to be raped. After all,
doesn't rape give them the sexual enjoyment they reallywant, at the
same time that it relieves them of the responsibilityfor admitting to
and acting upon what they want? And how then can we blame men,
who have been socializedto be aggressivelyseductivepreciselyfor the
purpose of overridingfemale reserve?If we find fault at all, we are
inclined to cast our suspicionson the motives of the woman. For it is
on her that the contradictoryroles of sexual desirerand sexual denier
has been placed. Our awarenessof the contradictionexpected of her
makes us suspect her honesty. In the past, she was expected to deny
her complicity because of the shame and guilt she felt at having
submitted.15This expectation persistsin many quarterstoday, and is
carriedover into a general suspicionabout her character,and the fear
that she might make a false accusationout of revenge,or some other
low motive.16
But if women reallywant sexualpleasure,what inclines us to think
that they will get it through rape?This conclusion logically requiresa
theory about the dynamicsof sexual pleasurethat sees that pleasureas
an emergent property of overwhelming male insistence. For the
assumption that a raped female experiences sexual pleasure implies

'5 See Sue Bessner, The Laws of Rape (New York: Praeger Publications, 1984), pp.
111-121, for a discussionof the legalformsin whichthissuspicionis expressed.
16
Ibid.
Date Rape:FeministAnalysis 229

that the person who rapes her knows how to cause that pleasure
independently of any information she might convey on that point.
Since her ongoing protest is inconsistentwith requeststo be touched
in particularways in particularplaces,to have more of this and less of
that, then we must believe that the person who touches her knows
these particularways and places instinctively,without any directives
from her.
Thus we find, underlyingand reinforcingthis belief in incommu-
nicative male prowess, a conception of sexual pleasure that springs
from wordless interchanges,and of sexual success that occurs in a
place of meaningfulsilence.The languageof seductionis acceptedas a
tacit language: eye contact, smiles, blushes, and faintly discernible
gestures.It is, accordingly,impreciseand ambiguous.It would be easy
for a man to make mistakesabout the messageconveyed,understand-
able that he should mistakenlythink that a sexual invitationhas been
made, and a bargainstruck.But honest mistakes,we think, must be
excused.
In sum, the belief that women should not be sexuallyprovocativeis
logically linked to severalother beliefs, some normative,some empiri-
cal. The normativebeliefs are that (1) people should keep the agree-
ments they make (2) that sexuallyprovocativebehaviour,taken beyond
a certain point, generatesagreements(3) that the peculiar nature of
male and female sexualityplaces such agreementsin a specialcategory,
one in which the possibilityof retractingan agreementis ruled out, or
at least made highly unlikely, (4) that women are not to be trusted,in
sexual matters at least. The empirical belief, which turns out to be
false,is thatmale sexualityis not subjectto rationaland moralcontrol.

DISPELLING THE MYTHS

The 'she asked for it' justification of sexual assault incorporatesa


conceptionof a contractthat would be difficult to defend in any other
context and the presumptionsabout human sexualitywhich function
to reinforcesympathiesrooted in the contractualnotion of just deserts
arenot supportedby empiricalresearch.
The belief that a woman generatessome sort of contractualobliga-
230 LoisPineau

ton wheneverher behaviouris interpretedas seductiveis the most


indefensiblepartof the mythologyof rape.In law, contractsare not
legitimatejust becausea promisehasbeenmade.In particular, the use
of pressure tactics
to extract agreementis frowned upon.Normally,an
agreementis upheldonly if the contractors were clearon what they
weregettinginto, andhad sufficienttime to reflecton the wisdomof
their doing so. Eitherthere must be a clear traditionin which the
expectations involvedin the contractarefairlywell known(marriage),
or theremust be an explicitwrittenagreementconcerningthe exact
termsof the contractandthe expectations of the personsinvolved.But
whateverthe termsof a contract,thereis no privaterightto enforceit.
So that if I make a contractwith you on which I renege,the only
permissible recourseforyou is throughduelegalprocess.
Now it is not clearwhethersexualcontractscan be madeto begin
with, or if so, what sort of sexualcontractswould be legitimate.But
assumingthattheycouldbe made,the termsof thosecontractswould
not be enforceable. To allow publicenforcementwould be to grant
the Statethe overtrightto forcepeopleto have sex, and this would
clearlybe unacceptable. Grantingthat sexualcontractsare legitimate,
state enforcementof such contractswould have to be limited to
orderingnonsexualcompensation for breachesof contract.So it makes
no difference whether a sexual contract is tacit or explicit. There
are no groundswhatsoeverthat would justify enforcementof its
terms.
Thus, even if we assumethat a womanhas initiallyagreedto an
encounter,her agreementdoes not automatically makeall subsequent
sexualactivityto which she submitslegitimate.If duringcoitus a
womanshouldexperiencepain,be suddenlyovercomewith guilt or
fear of pregnancy,or simplylose her initial desire,those are good
reasonsfor her to changeher mind.Havingchangedher mind,neither
her partnernor the statehas any rightto forceher to continue.But
then if she is forcedto continueshe is assaulted.Thus, establishing
that consent occurredat a particularpoint during a sexual encounter
should not conclusively establish the legitimacy of the encounter.'7

17
A speech-actlike 'OK,let's get it over with' is takenas consent,even though
it is extractedunderhigh pressure,the sex that ensueslacksmutuality,and there
Date Rape:FeministAnalysis 231

What is neededis a readingof whethershe agreedthroughoutthe


encounter.
If the 'she askedfor it' contractual view of sexualinterchangehas
anyvalidity,it is becausethereis a pointat whichthereis no stopping
a sexualencounter,a point at which that encounterbecomesthe
inexorableoutcomeof the unfoldingof naturalevents.If a sexual
encounteris like a slideon whichI cannotstophalfwaydown,it,will
be relevantwhetherI enter the slide of my own free will, or am
pushed.
But thereis no evidencethat the entiresexualact is like a slide.
While theremaybe a few secondsin the 'plateau'periodjust priorto
orgasmin which people are 'swept'awayby sexualfeelingsto the
pointwherewe couldjustifiablyunderstand theirlackof heed for the
comfortof theirpartner,the greaterpartof a sexualencountercomes
well within the boundsof morallyresponsiblecontrolof our own
actions.Indeed,the availableevidenceshowsthatmost of the activity
involvedin sex has to do with buildingthe requisitelevel of desire,a
taskthatinvolvesthe properuse of foreplay,the possibilityof which
impliescontrolover the form that foreplaywill take.Modernsexual
therapyassumesthat such controlis universally accessible,and so far
therehas been no reasonto questionthat assumption. Sexologistsare
in
unanimous,moreover, holding that mutual sexualenjoymentre-
quiresan atmosphereof comfortandcommunication, a minimumof
pressure, and an ongoing check-up on one's partner'sstate. They
maintainthat differentpeoplehave differentpredilections, and that
whatis pleasurable for one personis veryoften anathemato another.
These findingsshow that the way to achievesexualpleasure,at any
time at all, let alonewith a casualacquaintance, decidedlydoes not
the
involveoverriding otherperson'sexpress reservationsand provid-
ing them with just any kind of sexualstimulus.'8And while we do not

areno ulteriorreasonsfor such an agreement.See Davis,p. 103.Also see Carolyn


Schaferand MarilynFrye'Rapeand Respect',Readingsin RecentFeminist Philoso-
phy,ed.by MarilynPearsell(California:
Wadsworth, 1986),p. 189,for a charac-
terizationof thecommonnotionof consentasa formalspeech-act.
18 It is notjustwomenwho failto findsatisfaction
in the'sweptaway'approach
andof conquestorientedmen,
Studiesof convictedrapists,
to sexualinteraction.
232 Lois Pineau

want to allow science and technology a voice in which the voices of


particularwomen are drowned, in this case science seems to concur
with women's perception that aggressiveincommunicativesex is not
what they want. But if science and the voice of women concur, if
aggressiveseductiondoes not lead to good sex, if women do not like it
or want it, then it is not rationalto think that they would agree to it.
Where such sex takes place,it is thereforerationalto presumethat the
sexwas not consensual.
The myth that women like to be raped,is closely connected,as we
have seen, to doubt about their honesty in sexual matters, and this
suspicion is exploited by defence lawyers when sexual assault cases
make it to the courtroom. It is an unfortunate consequence of the
presumption of innocence that rape victims who end up in court
frequendyfind that it is they who are on trial. For if the defendantis
innocent, then either he did not intend to do what he was accusedof,
or the plaintiffis mistakenabout his identity,or she is lying. Often the
last alternative is the only plausible defence, and as a result, the
plaintiff's word seldom goes unquestioned. Women are frequently
accused of having made a false accusation, either as a defensive
mechanism for dealing with guilt and shame, or out of a desire for
revenge.
Now there is no point in denying the possibilityof false accusation,
though there are probablybetter ways of seeking revenge on a man
than accusing him of rape. However, we can now establisha logical
connectionbetween the evidence that a woman was subjectedto high-
pressureaggressive'seduction'tactics, and her claim that she did not
consent to that encounter.Where the kind of encounteris not the sort
to which it would be reasonableto consent,there is a logical presump-

indicatethat men are frequenty disappointedwhen they use this approachas


well. In over half of aggravatedsexualassaultspenetrationfails becausethe man
loses his erection.Those who do succeedinvariablyreportthat the sex experi-
enced was not enjoyable.This supportsthe prevailingview of sexologiststhat
men dependon the positiveresponseof theirpartnersin orderto fuel theirown
responsivemechanisms.See A. N. Groth,RapeandSexualAssault.Also see Why
MenRape,editedby SylviaLevineandJosephKoenig(Toronto:Macmillan,1982)
or consultanyrecentmanualon malesexuality.
DateRape:Feminist
Analysis 233

ton that a woman who claims that she did not consent is telling the
truth.Wherethe kindof sex involvedis not the sortof sexwe would
expect a woman to like, tbe burden of proof should not be on the
womanto show that she did not consent,but on the defendantto
show that contraryto everyreasonableexpectationshe did consent.
The defendantshould be requiredto convincethe court that the
plaintiffpersuaded him to havesex with hereventhoughthereareno
visiblereasonswhysheshould.
In conclusion,there are no groundsfor the 'she asked for it'
defence. Sexuallyprovocativebehaviourdoes not generatesexual
contracts.Even where there are sexualagreements,they cannot be
legitimatelyenforcedeitherby the State,or by privateright,or by
naturalprerogative. Secondly,all the evidencesuggeststhat neither
women nor men find sexualenjoymentin rape or in any form of
non-communicative sexuality.Thirdly,male sexualdesireis contain-
able, and can be subjectedto moraland rationalcontrol.Fourthly,
sincethereis no reasonwhy womenshouldnot be sexuallyprovoca-
tive, they do not 'deserve'any sex they do not want.This last is a
welcomediscovery.The tabooon sexualprovocativeness in womenis
a taboobothon sensualityandon teasing.But sensualityis a sourceof
delight,and teasingis playfuland inspireswit. What a reliefto learn
thatit is not sexualprovocativeness,but its enemies,thatconstitutesa
danger to theworld.

COMMUNICATIVE SEXUALITY: REINTERPRETING


THE KANTIAN IMPERATIVE

The present criterion of consent sets up sexual encounters as con-


tractualeventsin whichsexualaggression is presumedto be consented
to unlessthereis some vigorousact of refusal.As long as we view
sexualinteractionon a contractualmodel, the only possibilityfor
findingfaultis to point to the presenceof such an act.But it is clear
that whetheror not we can determinesuch a presence,there is
somethingstronglydisagreeable aboutthe sexualaggressiondescribed
above.
In thinkingaboutsex we must keepin mind its sensualends,and
234 LoisPineau

the factsshowthataggressivehigh-pressuresex contradicts


thoseends.
Consensualsex in datingsituationsis presumedto aim at mutual
enjoyment.It maynot alwaysdo this,andwhen it does,it mightnot
alwayssucceed.Thereis no logicalincompatibility
betweenwantingto
continuea sexualencounter,andfailingto derivesexualpleasurefrom
it.19
But it seemsto me that thereis a presumptionin favourof the
connectionbetweensex and sexualenjoyment,and that if a man
wantsto be surethathe is not forcinghimselfon a woman,he hasan
obligationeither to ensure that the encounterreally is mutually
enjoyable,or to know the reasonswhy she would want to continue
the encounterin spiteof her lackof enjoyment.A closerinvestigation
of the natureof this obligationwill enableus to constructa more
rationalanda moreplausiblenormof sexualconduct.
OnaraO'Neill has arguedthat in intimatesituationswe have an
obligationto takethe endsof othersas ourown,andto promotethose
ends in a non-manipulative and non-paternalistic manner.2"Now it
seemsthatin honestsexualencounters just this is required.Assuming
thateachpersonentersthe encounterin orderto seeksexualsatisfac-
tion, eachpersonengagingin the encounterhas an obligationto help
the other seek his or her ends.To do otherwiseis to risk actingin
oppositionto whatthe otherdesires,andhenceto riskactingwithout
theother'sconsent.
But the obligationto promotethe sexualends of one's partner
implies the obligationto know what those ends are, and also the
obligationto know how those ends are attained.Thus, the problem
comes down to a problemof epistemicresponsibility, the responsi-
bility to know.The solution,in my view, lies in the practiceof a

'9 Robin Morgancomes perilouslyclose to suggestingthat there is when she


defines rape as any sexual encounter that is not initiated by a woman out of her
own heartfelt desire. See Going Too Far (New York: Random House, 1968), p.
165.
20 O'Neill, 'Between Consenting Adults', Philosophyand PublicAffairs 14, 252-
277.
DateRape:Feminist
Analysis 235

communicativesexuality,one which combines the appropriateknowl-


edge of the otherwith respectfor the dialecticsof desire.
So let us, for a moment, conceive of sexual interaction on a
communicativerather than a contractualmodel. Let us look at it the
way I think it should be looked at, as if it were a properconversation
ratherthanan offer from the Mafia.
Conversations,when they are proper conversations,as opposed
to lectures, diatribes,or interrogations,illustrate the logical relation
between communicativeinteractionand treatingsomeone as an end in
herself in O'Neill's sense.This logical relationcan be illustratedby the
difference in kind between a typical contract and a proper sort of
conversation,a difference that derives primarily from the different
relation each bears to the necessity for cooperation.The differenceis
this: typically, where contracts are concerned, cooperation is primarily
requiredas a means to some furtherend set by the contract.In proper
conversations,as I shall define them here, cooperationis sought as an
end in itself.
It is not inimical to most contractsthat the cooperationnecessary
for achieving its ends be reluctant,or even hostile. Although we can
find fault with a contractorfor failing to deliver goods or services,we
do not normallycriticize her for her attitude.And although there are
situations where we employ people on the condition that they be
congenial,even then we do not require that their congenialitybe the
real thing. When we are having a proper conversation,however, we
do, typically,want the real thing. In conversation,the cooperationwith
the other is not just a means to an interestingconversation;it is one of
the endswe seek,without which the conversationceasesto satisfy.
The communicative interaction involved in conversation is con-
cerned with a good deal more than didactic content and argument.
Good conversationalistsare intuitive, sympathetic,and charitable.In-
tuition and charity aid the conversationalistin her effort to interpret
the words of the other correctly and sympathy enables her to enter
into the other'spoint of view. Her sensitivityalertsher to the tone of
the excliange.Has her point been taken good-humouredlyor resent-
fully? Aggressivelydelivered responses are taken as a sign that ad
236 Lois Pineau

hominemsare at work, and that the respondent'sself-worth has been


called into question. Good conversationalistswill know to suspend
furtherdiscussionuntil this sense of self-worth has been reestablished.
Angry responses,resentful responses,bored responses,even over-en-
thusiastic responses require that the emotional ground be cleared
before the discussion be continued. Often it is better to change the
topic, or to come back to it on another day under different circum-
stances.Good conversationalistsdo not overwhelm their respondents
with a barrageof their own opinions. While they may be persuasive,
the forcefulnessof their persuasiondoes not lie in their being over-
bearing,but ratherin their capacityto see the other'spoint of view, to
understandwhat it depends on, and so to addressthe essentialpoint,
but with tact and clarity.
Just as communicativeconversationalistsare concerned with more
than didactic content, persons engaged in communicative sexuality
will be concerned with more than achieving coitus. They will be
sensitive to the responses of their partners. They will, like good
conversationalists,be intuitive, sympathetic,and charitable.Intuition
will help them to interpret their partner'sresponses;sympathy will
enable them to sharewhat their partneris feeling; charitywill enable
them to care.Communicativesexualpartnerswill not overwhelmeach
other with the barrageof their own desires.They will treat negative,
bored, or angry responses,as a sign that the erotic ground needs to be
either clearedor abandoned.Their concernwith fosteringthe desire of
the other must involve an ongoing state of alertnessin interpretingher
responses.
Just as a conversationalist'sprime concern is for the mutuality of
the discussion,a person engaged in communicativesexuality will be
most concerned with the mutuality of desire. As such, both will put
into practicea regardfor their respondentthat is guaranteedno place
in the contractuallanguage of rights, duties, and consent. The dia-
lectics of both activities reflect the dialecticsof desire insofar as each
person's interest in continuing is contingent upon the other person
wishing to do so too, and each person'sinterest is as much fueled by
the other'sinterestas it is by her own. Each respectsthe subjectivityof
the other not just by avoiding treading on it, but by fostering and
Date Rape:FeministAnalysis 237

protectingthe qualityof that subjectivity.Indeed,the requirement to


avoidtreadingon the subjectivity of the otherentailsthe obligationto
respectthe dialecticsof desire.21
Forin intimacythereis no passingby
on the otherside.To be intimatejust is to open up in emotionaland
personalways,to sharepersonalknowledge,andto be receptiveto the
opennessof the other.This opennessandsharingnormallytakesplace
only in an atmosphereof confidenceand trust.But once availedof
this knowledge,andconfidence,and trust,one has,as it were,respon-
sibilitythrustupon one, the responsibility not to betraythe trustby
misusing the knowledge. And only by respectingthe dialecticsof
desirecan we have any confidencethat we have not misusedour
positionof trustandknowledge.

CULTURAL PRESUMPTIONS

Now it maywell be thatwe haveno obligationto carefor strangers,


and I do not wish to claim that we do. Nonetheless,it seems that
O'Neill'spoint about the specialmoral duties we have in certain
intimatesituationsis supportedby a conceptualrelationbetween
certainkinds of personalrelationshipsand the expectationthat it
shouldbe a communicative relation.Friendshipis a casein point.It is
a relationthatis greatlyunderdetermined by whatwe usuallyinclude
in our sets of rightsand obligations.For the most part,rightsand
obligationsdisappear as termsby whichfriendshipis guided.They are
still there,to be calledupon,in casethe relationship breaksdown,but
insofaras the friendshipis a friendship,it is concernedwith fostering
the qualityof the interactionand not with standingon rights.Thus,
becausewe are friends,we shareour property,and propertyrights
betweenus arenot invoked.Becausewe are friends,privacyis not an
issue.Becausewe arefriendswe maysee to eachother'sneedsas often
as we see to our own. The same can be said for relationsbetween

21 Thesortof relationship
I havein mindexemplifies
the'feminist' to
approach
ethics argued for by Nell Noddings, Caring:A FeminineApproachto Ethics
(Berkeley:
Universityof California
Press,1984).In particular,
see herdiscussion
of teaching
asa 'duality',
p. 195.
238 LoisPineau

lovers, parentsand dependent children, and even between spouses,at


leastwhen interactionis functioningat an optimallevel.When such
relationsbreakdown to the point that people must standon their
rights,we can often say that the actorsought to make more of an
effort,and in many instancesfault them for their lack of charity,
tolerance,or benevolence.Thus, althoughwe have a right to end
it maybe a reflectionon our lackof virtuethatwe do so,
friendships,
and while we cannotbe criticizedfor violatingotherpeople'srights,
we can be rightfullydeprecatedfor lackingthe virtue to sustaina
friendship.
But is there a similarconceptualrelationbetweenthe kind of
activitythat a date is, and the sort of moralpracticewhich that it
requires?My claim is that there is, and that this connection is easily
established oncewe recognizethe culturalpresumption thatdatingis a
of and
gesture friendship regard.Traditionally, the decisionto date
indicatesthattwo peoplehavean initialattractionto eachother,that
they are disposedto like each other,and look forwardto enjoying
each other'scompany.Datingderivesits implicitmeaningfrom this
tradition.It retainsthismeaningunlessotheraimsareexplicitlystated,
andeven then it may not be possibleto alienatethis meaning.It is a
rarewomanwho will not spurna man who statesexplicitly,rightat
the onset,that he wantsto go out with her solely on the condition
thathe havesexualintercourse with her at the end of the evening,and
that he has no interestin her companyapartfrom gainingthatend,
andno concernformutualsatisfaction.
Explicit protest to the contrary aside, the conventions of dating
conferon it its social meaning,and this social meaningimpliesa
relationship whichis morelike friendshipthanthe cutthroatcompeti-
tion of opposingteams.As such, it requiresthat we do more than
standon our rightswith regardto each other.As long as we are
operatingunderthe auspicesof a datingrelationship, it requiresthat
we behavein the mode of friendshipand trust.But if a dateis more
like a friendshipthana businesscontract,then clearlyrespectfor the
with the sortof sexualpressurethat
dialecticsof desireis incompatible
is inclinedto end in daterape.And clearly,also,a conquestmentality
whichexploitsa situationof trustandrespectfor purelyselfishendsis
Date Rape:FeministAnalysis 239

morally pernicious. Failure to respect the dialectics of desire when


operating under the auspices of friendship and trust is to act in
flagrant disregardof the moral requirement to avoid manipulative,
coercive, and exploitive behaviour.Respect for the dialecticsof desire
is primafacie inconsistent with the satisfactionof one person at the
expense of the other. The properend of friendshiprelationsis mutual
satisfaction.But the requirementof mutuality means that we must
take a communicativeapproachto discoveringthe ends of the other,
and this entailsthatwe respectthe dialecticsof desire.
But now that we know what communicativesexualityis, and that it
is morally required,and that it is the only feasible means to mutual
sexual enjoyment, why not take this model as the norm of what is
reasonablein sexual interaction.The evidence of sexologists strongly
indicates that women whose partnersare aggressivelyuncommunica-
tive have little chance of experiencingsexual pleasure.But it is not
reasonablefor women to consent to what they have little chance of
enjoying.Hence it is not reasonablefor women to consent to aggres-
sive noncommunicative sex. Nor can we reasonably suppose that
women have consentedto sexualencounterswhich we know and they
know they do not find enjoyable.With the communicativemodel as
the norm, the aggressivecontractualmodel should strikeus as a model
of deviant sexuality, and sexual encounters patternedon that model
should strike us as encounters to which primafacie no one would
reasonably agree. But if acquiescence to an encounter counts as
consent only if the acquiescenceis reasonable,something to which a
reasonableperson, in full possession of knowledge relevant to the
encounter,would agree,then acquiescenceto aggressivenoncommuni-
cative sex is not reasonable.Hence, acquiescenceunder such conditions
shouldnot count as consent.
Thus, where communicativesexualitydoes not occur, we lack the
main ground for believing that the sex involved was consensual.
Moreover,where a man does not engage in communicativesexuality,
he acts either out of recklessdisregard,or out of willful ignorance.For
he canmot know, except through the practice of communicative
sexuality,whether his partnerhas any sexualreasonfor continuing the
encounter.And where she does not, he runs the risk of imposing on
240 Lois Pineau

her what she is not willing to have.All that is needed then, in order to
providewomen with legal protectionfrom 'date rape'is to make both
reckless indifference and willful ignorance a sufficient condition of
mensrea and to make communicativesexuality the acceptednorm of
sex to which a reasonablewoman would agree.22Thus, the appeal to
communicativesexualityas a norm for sexual encountersaccomplishes
two things. It brings the aggressivesex involved in 'date rape' well
within the realmof sexualassault,and it locatesthe guilt of date rapists
in the failureto approachsexualrelationson a communicativebasis.

THE EPISTEMOLOGICAL IMPLICATIONS

Finding a proper criterion for consent is one problem, discovering


what really happened, after the event, when the only eye witnesses
give conflicting accounts is another.But while there is no foolproof
way of getting the unadulteratedtruth, it can make a significant
differenceto the outcome of a prosecution,what sort of facts we are
seeking.On the old model of aggressiveseductionwe sought evidence
of resistance.But on the new model of communicativesexualitywhat
we want is evidence of an ongoing positive and encouragingresponse
on the part of the plaintiff This new goal will requirequite different
tacticson the part of the cross-examiners,and quite differentexpecta-
tions on the part of juries andjudges. Where communicativesexuality
is taken as the norm, and aggressivesexual tactics as a presumption
against consent, the outcome for the example that I describedabove
would be quite different.It would be regardedas sexual assaultrather
than seduction.
Let us then consider a date rape trial in which a man is cross-
examined. He is asked whether he was presuming mutual sexual
enjoyment.Supposehe answersin the negative.Then he would have
to account for why he persistedin the face of her voiced reluctance.
He cannot give as an excuse that he thought she liked it, because he

22 As now seems to be the case in AustralianLaw. See fn. 4.


DateRape:Feminist
Analysis 241

believes that she did not. If he thought that she had consented even
though she didn't like it, then it seems to me that the burdenof proof
would lie with him to say why it was reasonableto think this. Clearly,
her initial resistance,her presumed lack of enjoyment, and the pres-
sure tactics involved in getting her to 'go along' would not supporta
reasonablebelief in consent, and his persisting in the face of her
dissatisfactionwould surely cast doubt on the sincerityof his belief in
her consent.
But supposehe answersin the affirmative.Then the cross-examiner
would not have to rely on the old criteriafor non-consent.He would
not have to show either that she had resistedhim, or that she was in a
fearful or intimidated state of mind. Insteadhe could use a commu-
nicative model of sexuality to discover how much respect there had
been for the dialecticsof desire.Did he ask her what she liked? If she
was using contraceptives?If he should?What tone of voice did he use?
How did she answer?Did she make any demands?Did she ask for
penetration?How was that desire conveyed?Did he ever let up the
pressurelong enough to see if she was really that interested?Did he
ask her which position she preferred?Assuming that the defendant
does not perjurehimself, he would lack satisfactoryanswersto these
questions. But even where the defendant did lie, a skilled cross-
examinerwho was willing to go into detail could probablyestablish
easily enough when the interactionhad not been communicative.It is
extraordinarilydifficult to keep up a consistentstorywhen you are not
telling the truth.
On the new criterion, the cross-examinationfocusses on the com-
municative nature of the ongoing encounter, and the communicative
natureof an encounteris much easierto establishthan the occurrence
of an episodic act of resistance.For one thing, it requiresthat a fairly
long, yet consistent story be told, and this enables us to assess the
plausibilityof the competing claims in light of a wider collection of
relevant data. Secondly, in making noncommunicativesex the pri-
mary indicator of coercive sex it provides us with a criterion for
distinguishingconsensualsadomasochismfrom brutality.For even if a
couple agree to sadomasochisticsex, bondage and whippings and the
rest of it, the court has a right to require that there be a system of
242 LoisPineau

signalswherebyeach partnercan convey to the other whether she has


had enough.23 Thirdly, the use of a new criterion of communicative
sexualitywould enable us to introduce a new category of nonaggra-
vated sexual assaultwhich would not necessarilycarry a heavy sen-
tence but which would nonetheless provide an effective recourse
against'daterape'.24

CONCLUSION

In sum, using communicativesexualityas a model of normal sex has


several advantagesover the 'aggressive-acquiescence'model of seduc-
tion. The new model ties the presumptionthat consensualsex takes
place in the expectationof mutual desire much more closely to the
facts about how that desire actually functions.Where communicative
sex does not occur, this establishesa presumptionthat there was no
consent. The importanceof this presumptionis that we are able, in
criminal proceedings,to shift the burden of proof from the plaintiff,
who on the contractualmodel must show that she resisted or was
threatened,to the defendantwho must then give some reasonwhy she
should consent after all. The communicativemodel of sexualityalso
enables us to give a different conceptual content to the concept of
consent. It sees consent as something more like an ongoing coopera-
tion than the one-shot agreementwhich we are inclined to see it as on
the contractualmodel. Moreover,it does not matter,on the commu-
nicative model, whether a woman was sexuallyprovocative,what her
reputationis, what went on before the sex began. All that mattersis
the qualityof communicationwith regardto the sex itself.
But most importantly,the communicative model of normal sex-
uality gives us a handle on a solution to the problem of date-rape.If

23 The SAMOIS
justificationof sadomasochismrestson the claim that sadomas-
ochisticpracticecan be communicativein this way.See ComingToPower,Samois
(Boston:Alyson Publications, 1981).
24 See sections 520e, Act No. 266, State of
Michigan. Sexual assault in the fourth
is
degree punishable by imprisonment of not more than two years or a fine of
not more than $500, or both.
DateRape:Feminist
Analysis 243

noncommunicatve sexualityestablishesa presumption of nonconsent,


then wherethereare no overridingreasonsfor thinkingthatconsent
occurred,we havea criterionfor a categoryof sexualassaultthatdoes
not requireevidenceof physicalviolenceor threat.If we are serious
aboutdaterape,thenthe next stepis to takethiscriterionas objective
groundsfor establishingthat a date rape has occurred.The proper
is theshortestrouteto establishing
legislation thiscriterion.
Thereremains,of course,the problemof education.If we aregoing
to changethe rulesaboutwhat is sociallyacceptablein sexualrela-
tions, then it is only fair to let the publicknow. In a massmedia
society,this is not hard to do. A publicinformationcampaignwill
spreadthe newsin no time at all.The realproblemis the reluctance
of the massmediato dealwith questionsof sexualrelationsandsexual
intimacy.Its politiciansare still curiouslyreluctantto standup to an
increasingly smallsectorof societythatis unwillingto admit,despite
all the evidence to the contrary,that anyone but well-meaning
husbandsandwiveseverhavesex.I wouldnot be surprised if this sort
of puritanicalholdoutwere the very sourceof the problemof rape.
Certainly,sexualignorancemustcontributesignificantly to the kindof
socialenvironment conduciveto rape.

Dapartmentof Philosophy,
KansasStateUniversity,
Manhattan,Kansas66506,
U.SA.