Destabilizing Power in Rape: Why Consent Theory in Rape Law Is Turned on Its Head
![handle is hein.journals/wiswo11 and id is 45 raw text is: DESTABILIZING POWER IN RAPE: WHY CONSENT
THEORY IN RAPE LAW IS TURNED ON ITS HEAD
Mustafa T. Kasubhai*
Man should be trained for war and woman for the recreation of the
warrior.1
[If] there is one area of social behavior where sexism is entrenched
in law - one realm where traditional male prerogatives are most
protected, male power most jealously preserved, and female power
most jealously limited - it is in the area of sex itself, even forced
sex.2
INTRODUCTION
The introductory quote epitomizes the violent nature of rape.
The male-female relationship is embedded in the context of war,
where women are diminished to mere objects of recreation, wholly
without volition or autonomy. The second quote critiques the power
structure upon which Nietzsche, the author of the former quote, bases
his claim. Both ideas speak to the tension between the conclusion
that rape is violence, and a deeper, more critical evaluation of rape as
a method of the systematic and institutionalized elimination of wo-
men's autonomy.
The debate over whether rape is an act of violence or an act of
sex continues to this day. With either position in the debate, the con-
cept of consent3 should determine whether or not the sexual contact
* J.D., University of Oregon. I want to dedicate this article to all those who have
been forced into silence. There are simple and dear paths to your voices, but they
are still blocked by tradition and the law. I want to thank my parents, Nafisa and
Taber, for teaching me as a child about the sacredness of our humanity; Kristin Lee,
without whose love, support and criticism I would never have finished this work; Kirk
Bailey for friendship, thoughtful conversations that clarified my arguments, and for
being the only man who did not think I was insane; Caroline Forell and Linda Kessel
for their wonderfully critical comments; and the editors of the Wisconsin Women's
Law Journal for their patience and meticulous work.
1. FREDRIchi NmTzscHE, Thus SPAxE ZARATHUSRA 18 (1883).
2. Susan Estrich, Sex at Work, 43 STAN. L. REv. 813, 814-15 (1991).
3. According to BLACK'S LAW DICXONARY 805 (6th ed. 1990), consent means:
Voluntarily yielding the will to the proposition of another.... Agreement;
approval; permission; the act or result of coming into harmony or accord.
Consent is an act of reason, accompanied with deliberation, the mind weigh-
ing as in a balance the good or evil on each side. It means voluntary agree-
ment by a person in the possession and exercise of sufficient mental capacity
to make an intelligent choice to do something proposed by the other.
The dictionary further explains that in rape law consent means:](ViewImageLocal?handle=hein.journals/wiswo11&div=8&collection=&method=preview&ext=.png&size=3)
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Destabilizing Power in Rape: Why Consent Theory in Rape Law Is Turned on Its Head
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