Women’s Sexual Agency and the Law of Rape in the 21st Century

This paper evaluates the modern baseline presumption of nonconsent in sexual assault (rape) cases in light of different theories of sexuality (feminism on the one hand and sex positivism/queer theory on the other) and in light of how sexuality manifests itself in the lives of contemporary young women. The authors analyze social science literature on contemporary heterosexual practices such as sexting and hook-ups, as well as contemporary media imagery, to inform a contemporary understanding of the ways in which young people perceive and experience sex. Using this evidence as a foundation, the authors reconsider the ongoing utility of a baseline presumption of nonconsent in sexual assault cases. This paper demonstrates the complex relationship between women’s sexual autonomy, the contemporary culture’s encouragement of women’s celebration of their own sexual objectification and the persistence of high rates of unwanted sex. In the end, it demonstrates why a legal presumption against consent may neither reduce the rate of nonconsensual sex, nor raise the rate of reported rapes. At the same time, it shows how the presumption itself is unlikely to generate harmful consequences: if it deters anything, it likely deters unwanted sex, whether consented to or not.