Touro Law Review


The Kavanaugh confirmation hearings, the Harvey Weinstein case, and the Jeffrey Epstein case have done us a valuable service. By focusing mass media attention and academic discourse on consent to sex and on assault, they have brought to a boil two issues that have been simmering for some time in feminist circles. The present essay invites readers to consider feminist writings over the last half-century that have influenced this discourse and continue to incite febrile talk today.

First to be examined is the American “heartbalm” regime, an early effort to protect women from the emotional harm resulting from seduction by fraud, breach of promise to marry, and similar objectionable behavior, some of which, it has been argued, vitiates consent and should be actionable. We then examine assertions of women’s non-consent that have been used to justify new, heavy regulation: the fundamentality of rape (Susan Brownmiller), “dominance feminism” (Catharine MacKinnon), and related claims of women’s lack of agency (Robin West). These claims are set against rejoinders that women are much more powerful in the sexual realm than as portrayed by the critics, and that, by extension, determinations of legal consent should not be left only to the critics. This will bring us to an evaluation of affirmative consent as a tool for ensuring real agreement.

The essay goes on to highlight the absence of reliable data on campus sexual assault. While stressing the obligation to confront such assault whenever it takes place, this discussion examines the gap between the one-in-five sexual assault data point famously reported by President Obama (i.e., the chances for women to be assaulted during their college years) and the much lower rates recorded in other studies, including so-called university Clery reports. These uncertainties would seem to militate against the stereotyping of college men as brutes, a state of affairs that is perhaps best reflected in the report of four Harvard women law professors detailing what they consider the “shocking” treatment of men in assault investigations.

Focus then shifts to the #MeToo-related claim (Deborah Tuerkheimer) that, no “ifs” or “buts” provided, women should be believed in he said/she said cases. Analogizing rape to robbery - with neither consideration of their contextual difference nor concern with due process rights of men—this claim seems premised on the idea that no one questions the actual occurrence of a reported robbery.

What follows is an argument against simply believing a woman’s assault complaint. Emanating straight from the trenches and provided by an experienced sexual assault investigator and former law school dean (Joan Howarth), this argument underscores the sexual ambivalence and confusion she found over the years in women complainants.

Discussion turns finally to a common feature of much current discourse, one that is exemplified throughout this article: an attitude of self-righteousness made unapologetically manifest in the Wells epigraph above. This arrogance has induced men to step back in assault discussions, which, in turn, has precluded understanding of sexual dynamics, is condescending to women though upholding their primacy, and tends to poison gender relations on campus and elsewhere.