Vol. 10 No. 4 (April 2000) pp. 273-276.

UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW by Stephen J. Schulhofer. Cambridge, MA: Harvard University Press, 1998. 318 pp.

Reviewed by Jill Norgren, Department of Government, John Jay College of Criminal Justice and University Graduate Center, The City University of New York.

In UNWANTED SEX, Stephen Schulhofer, Professor of Law and Criminology at the University of Chicago Law School, argues that, despite decades of debate and reform, state and federal laws against rape and sexual harassment continue to fail women victims. After documenting this failure with one breathtaking example after another, he proposes the use of a consent standard that would better define an individual's legal right to choose freely whether, and when, to be sexually intimate with another person. At the conclusion of UNWANTED SEX, the author offers a "Model Criminal Statute for Sexual Offenses" (pp. 283-84) that he proposes as the basis of new law.

Schulhofer's book comes to us at a particularly interesting moment. The front pages of our newspapers have been filled with charges and counter-charges of sexual harassment among the highest ranks of the United States Army (Meyers 2000). On the inside pages, feature writers have taken up the debate swirling around the recent publication of Randy Thornhill and Craig Palmer's A NATURAL HISTORY OF RAPE (2000), an academic study informed by the perspective of evolutionary biology. Elsewhere, Fox television paired up with Las Vegas entrepreneurs in the flamboyant, if failed, "Who Wants to Marry a Multimillionaire?" Sex has been, as they say, in our face. Why should we consider these news, cultural, and academic events alongside of Schulhofer's book? First, in all stations of life, sexual predation continues to deny women (and men) the right to personal autonomy, a freedom that is a cornerstone of Western liberalism. Yet, many people remain uneasy with criminal and civil laws that would mete out punishment when, after all, "boys will be boys." Finally, much of American society is shaped by a view of women as Eve-the-temptress, Eve-the flirt, or Eve-the-opportunist, and by propositions such as, "Marry a multimillionaire-stranger"; say "no", when you mean "yes"; "Virgin or vamp?" How is a legislature, or jury, to know?

Schulhofer puts these questions at the center of his study. UNWANTED SEX is troubling in its facts, but balanced in its presentation. The author is forthright in his belief that the legal reforms of the past five decades, driven by the good intentions of legal groups and the women's movement, have not succeeded, but nevertheless is insistent that the problem has a solution. The current state of the law (and social practices) devalues "what should be every person's unambiguous right: the right to choose -- or refuse -- sexual contact and to do so freely, without undue pressure or constraint"(p. x). UNWANTED SEX holds out the promise that "an adequate system of law [can] place sexual autonomy at the

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forefront of concern and afford it comprehensive protection, in the same way that we protect property, labor, informational privacy, the right to vote, and every other right that is central to the life of a free person" (p. x).

The first third of UNWANTED SEX describes the inadequacy of American laws against rape. Schulhofer begins with a sketch of what many readers will believe to be the bad, but bygone, days of restrictive definitions of the crime that drew upon Blackstone's eighteenth century yardstick: "carnal knowledge of a woman forcibly and against her will." American statutes employed Blackstone's standard until the 1950s. Legislators, police, judges, and jurors, virtually always male, demanded a showing of extreme violence, lest consent be considered to have been given by the victim. As a result, conviction rates for individuals accused of rape remained low. A typical judgment cited by Schulhofer was that of the Nebraska Supreme Court which, in 1947, stated "'submission' would count as consent 'no matter how reluctantly yielded'" (p. 20).

In the 1950s, concerned with this low rate of convictions, the American Law Institute recommended reform of rape laws. The model code proposed by the Institute's noted judges, lawyers, and legal scholars followed a line of "well-intended reasoning." The problem, Schulhofer writes, was that the code pushed the reform movement in the wrong direction. Panel members argued for the elimination of all mention of consent from the definition of the offense of rape, instead focusing on the man's conduct. The code proposed "an undefined but stringent requirement --FORCIBLE COMPULSION -- as the only reliable indication that the woman's claims of non-consent were genuine. Autonomy, though supposedly central, was shunted aside" (p. 23). In the years that followed, influenced by this standard, legislatures and courts continued to define rape as a sexual crime only when there was a showing of "physical force that overcomes earnest resistance" or "threats of immediate death or serious physical injury." In 1973, for example, a New York appellate court set aside a rape conviction, stating that rape "is not committed unless the woman opposes the man to the utmost of her power" (p. 24). It must be noted that, in states across the country, this stringent force requirement was often ignored when an African American defendant was charged with the rape of a Caucasian woman.

In the 1970s, the women's movement refocused attention on the need for reform. Susan Griffin, Catharine MacKinnon, and Susan Brownmiller, among others, offered critiques of rape law and the criminal justice system. In her book, AGAINST OUR WILL, Brownmiller (1975) argued that rape should be

treated as a crime intended to control and dominate rather than solely a violent sexual act. Activists at the National Organization for Women formed a National Task Force on Rape, lobbying for legislative reform nationwide. Schulhofer writes that these efforts resulted in major changes in legal doctrine: the corroboration requirement was abolished in nearly every state; "rape-shield" limits were placed on defense efforts to humiliate victims during cross-examination; and, in some states, the resistance requirement was softened or eliminated. Schulhofer argues, however, that these reforms "had surprisingly little practical effect" (p. 33) and that appellate courts, in particular, continued to reverse rape convictions relying upon FORCE standards. Indeed, one powerful lesson of UNWANTED SEX centers on the ability of juries to "know it when [they] see it" in the matter of rape, whereas appeals judges,

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bound to uphold statutes heavily burdened by vague and imprecise standards, repeatedly overturn verdicts.

By chapter six, the reader has sufficient information to agree, at minimum, that the law has failed, and that the sexual autonomy of women "should not exist so precariously as a mere by-product of the law's restrictions on the use of force" (p.102). It is also easy to agree with the author when he pleads for law that asks whether "each participant in sexual encounters had a meaningful opportunity to choose" (p.102). The problem centers on the legal protection of sexual autonomy because it is a concept, acknowledged by the author, to be large and "potentially even more sloppy than 'force'" (p. 105).

Schulhofer uses the remaining two-thirds of UNWANTED SEX to make the case that sexual autonomy has distinct dimensions. Correctly understood, they can be used to shape a consent standard that would better protect a woman's right to call for the punishment of individuals who would violate her right freely to choose whether and when to be sexually intimate.

According to the author, sexual autonomy has three dimensions: the internal capacity to make reasonably mature and rational choices, an external freedom from impermissible pressures and constraints, and the bodily integrity of the individual. Chapters seven and eight are used to explore sexual coercion and sexual bargaining within this framework. The remaining chapters consider the particular obligations and opportunities of school and prison professionals, workplace supervisors, clinical therapists, doctors, attorneys, and social dates, again, within Schulhofer's legal concept of consent. His discussion is thoughtful, while the examples of abuse of trust and office are sober reminders of the need for social and legal change.

UNWANTED SEX describes a half-century of reform that, in the author's view, has failed. Even the late 1980s and 1990s "deluge" of writing about rape and other sexual abuses, high visibility legislative action including the 1994 federal Violence Against Women Act, and progressive court action, have had, "quite limited reach."(p. 40) Federal law, for example, holds public officials liable for extreme forms of sexual harassment, but extends great latitude to private individuals. Federal anti-discrimination law demands a remedy only against INSTITUTIONS. Absent physical force, offending employees --teachers or supervisors-- are not liable personally. The difficulties of doing better are spelled out: "one person's idea of sexual pleasure is another person's nightmare" (p. 48). "No" sometimes means "yes" (studies show that 35-40 percent of women sometimes say "no" when, in fact, they are willing) (p. 64). The reform of rape law has moved slowly and cautiously, in part, because our society lacks consensus "about when it is fair to condemn a man for making aggressive sexual advances" (p. 48). However, Schulhofer argues, this does not excuse the fact that our legal systems have settled into the use of standards that "take sides," that give "primacy to male claims for sexual freedom and protection from criminal conviction without fair warning" (p. 52). The law has not opted for a neutral solution. With this book, Stephen Schulhofer prescribes something different. His argument is driven by the conclusion that it is possible to do better.

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REFERENCES:

Brownmiller, Susan. 1975. AGAINST OUR WILL: MEN, WOMEN, AND RAPE. NY: Simon & Schuster.

Myers, Steven Lee. 2000."General Accused By Leading Woman Had Won Key Post."

NEW YORK TIMES. (April 6): 1, 23.

Thornhill, Randy and Craig T. Palmer. 2000.A NATURAL HISTORY OF RAPE:

BIOLOGICAL BASES OF SEXUAL COERCION. Cambridge, MA: MIT Press.