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63 Tex. L. Rev. 387 (1984-1985)
Statutory Rape: A Feminist Critique of Rights Analysis

handle is hein.journals/tlr63 and id is 409 raw text is: Texas Law Review
Volume 63,       Number 3,       November 1984
Statutory Rape: A Feminist Critique of Rights
Frances Olsen*
I. Introduction
A man accused of raping his wife may feel that his privacy rights are
being violated; a woman may feel that she is sexually exploited by por-
nography even if it is viewed privately. The right to privacy and the right
to protection exist in fundamental conflict-a conflict that illustrates the
contradiction between freedom of action and security that recurs
throughout our legal system.I Privacy assures the freedom to pursue
one's own interests; protection assures that others will not harm us. We
want both security and freedom, but seem to have to choose between
them. Our historical experience with censorship warns us to be wary of
* Acting Professor of Law, University of California at Los Angeles. B.A. 1968, Goddard
College; J.D. 1971, University of Colorado; S.J.D. 1984, Harvard University. For helpful comments
upon earlier drafts, I would like to thank Mary Joe Frug, Kitty MacKinnon, Carlin Meyer, Jenny
Wriggins, Stephanie Phillips, Marilyn McMann, Martha Minow, Dru Cornell, Carolyn Armour,
Karl Klare, Ann Freedman, Liz Schneider, Nadine Taub, David Gregory, Frederick Rhine, Duncan
Kennedy, Virginia Kerr, Rand Rosenblatt, Sylvia Law, Jeremy Paul, Joe Singer, Alan Hyde, Lester
Mazor, Ellen Kelman, Gary Pellet, Deborah Rhode, Chris Littleton, Harold Porter, Carrie Menkel-
Meadow, Carole Goldberg-Ambrose, and Irene Diamond. I would also like to thank Ralph Mon-
aco, Teresa Wrenn, and Karl Christensen of the St. John's Law Library.
1. See Kennedy, The Structure of Blackstone's Commentaries, 28 BUFFALO L. RE. 205, 211-
13 (1979); Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,
1982 Wis. L. REV. 975, 980-84. Oliver Wendell Holmes identified the same conflict when he argued
that the right to compete in the economic arena (freedom of action) was in direct, systemic conflict
with the right to property (security). See Holmes, Privilege, Malice, and Intent, 8 HARV. L. REV. 1,
6 (1894).
Of course, not all exercises of freedom undermine the security of others, but most of the exer-
cises of freedom that people seek to restrict do threaten someone else's security. Similarly, most
efforts by the state to protect the security of one person or group interfere with the freedom of
another. For example, my freedom to pick tomatoes to eat is restricted to protect the grower's
property (security) interest in her tomato plants; my freedom to run red lights is restricted to protect
the security of drivers, passengers, and pedestrians; my freedom to carry out a socialist revolution is
restricted to protect others' security in our present system; my freedom to work below minimum
wage is restricted to protect the job security of others.


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