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Unwanted Sex: The Culture of Intimidation and the Failure of Law

NCJ Number
Stephen J. Schulhofer
Date Published
330 pages
This book documents the need to refocus laws against rape and to create a new system of legal safeguards against interference with sexual autonomy.
The author reviews the history of rape reform law and the perceptions of criminal and noncriminal sexual behavior that underlie the parameters set by these laws. Violent rape by a stranger is recognized to be physically and emotionally injurious to the victim, thus warranting criminal penalties. Existing criminal law considers nonviolent sexual coercion permissible, and it even condones many forms of physical force; existing law prohibits only excessive force. The effort to distinguish permitted from prohibited force in sexual coercion pulls the law into a hopeless quagmire, with under-enforcement the inevitable result. The problem cannot be solved by prohibiting all uses of force in sexual relations. This approach will not avoid the vagaries of distinguishing permitted from impermissible force, because physical activity, some of it forcible, is inherent in intercourse. Also, many of the other physical aspects of sexuality, although not inherent in intercourse, are expected and pleasurable, provided there is consent. What decent protection of sexual autonomy (freedom of choice in sexual behavior) requires is a recognition that sexual intimacy must always be preceded by the affirmative, freely given permission of both parties. Any person who engages in intercourse, knowing that he does not have unambiguous permission from his partner, commits a serious sexual abuse, and he should be held guilty of a serious criminal offense. Threats of bodily harm and other acts of physical force, beyond those intrinsic to intercourse, aggravate the offense, but they should not be required to justify criminal punishment if the defendant knew he was proceeding without having clear, affirmative consent. Chapter notes and a subject index


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