Letters from the Archives is a series in which we highlight past Atlantic stories and reactions from readers at the time.
Just over a year ago, the Hollywood mogul Harvey Weinstein was accused of decades of sexual misconduct by a slew of women in the industry. Since then, the #MeToo movement has thrust questions of sexual overreach into the public sphere. But even as the cultural conversation about sexual harassment shifts, the legal system still fails to protect many victims from abuse.
Stephen Schulhofer, the Robert B. McKay Professor of Law at New York University School of Law, has studied this issue for decades. His 1998 book, Unwanted Sex: The Culture of Intimidation and the Failure of Law, explores the right to sexual autonomy, and unpacks the laws that get in the way. Schulhofer drew on the book in an October 1998 Atlantic article—also called “Unwanted Sex.” At the time, it was a radical idea.
“A young Illinois woman stopped to rest while biking along an isolated reservoir near the town of Carbondale,” Schulhofer’s article began. The woman’s bike ride ended badly: A male stranger approached, and after a brief conversation, he carried her into the woods and subjected her to multiple acts of oral sex, against her will.
Although a jury found this man guilty of sexual assault, Schulhofer recounted, an Illinois court set aside his conviction, “saying that ‘the record is devoid of any external circumstances’”—such as force—“‘which suggest that [the] complainant was compelled to submit’” to the man’s advances. Outcomes like this were not rare, Schulhofer showed, writing that criminal laws suffered from “continuing vagueness” on matters of sexual boundaries. The “standards remain extraordinarily murky,” he wrote, and the benefit of the doubt often went to the accused rather than the accuser.
Recently, I asked Schulhofer to revisit his 1998 article. What had changed, in law and in culture, since those days—and what had not? The existing paradigm in the late ’90s for rape and sexual assault, he told me, centered around physical intimidation.“Sexual assault, as a matter of not only criminal law, but acceptable behavior in general,” he said, “focused on force, and the idea that if the person didn’t use force, then they were not violating social norms.” Nor, he clarified later, were they doing anything punishable. It was the obligation of the target of sexual advances to express that they were uninterested. Under “no means no” laws, Schulhofer explained, it was, and still is, next to impossible for a court to rule in favor of the complainant without at least this negative verbal proof.
Rather than focus on whether the accused was “aberrant, egregious, or potentially lethal,” Schulhofer wrote in 1998, the law should value whether each sexual participant “had a meaningful opportunity to choose.” He proposed a new standard:
When one person interferes with another person’s ability to choose freely in a sexual encounter, legal intervention is appropriate even in the absence of force—just as it is when one person impairs another person’s autonomy in relation to property rights, privacy, or other entitlements recognized by law.
At the time, this view of sexual autonomy was a relatively new concept. Schulhofer was one of the first scholars to argue in favor of now far more familiar affirmative consent laws (under which a plaintiff must prove only that they did not say “yes” to any sexual activity): “Only when our laws and culture acknowledge the importance of affirmative, uncoerced permission will we afford women and men the right to control the boundaries of their own sexual lives,” he argued in The Atlantic. “Until then sexual autonomy will remain the missing, unprotected entitlement.”
Judging by the batch of letters to the editor that came in after Schulhofer’s piece was published, many Atlantic readers were wary of his proposals. All published letters were written by men, and all pushed back on at least one element of his argument.
A professor at Virginia Commonwealth University was skeptical of the data Schulhofer had used to show the pervasiveness of sexual misconduct in academia. Schulhofer’s statistics suggested that “thousands (probably hundreds of thousands) of college women” faced “unwanted sexual demands from their professors” each year.To the professor, this was a “grotesque distortion” and “slander” against the “hundreds of thousands of male teachers who have never done any such thing.”
A reader from Great Neck, New York, worried that a “relaxation of the elements of proof” in court would limit “protection against the emotional backlash, and possible appetite for revenge, of a failed relationship” between people who knew each other. Laws, he argued, should establish a difference between cases like these and stranger assault.
“Should men be held liable for their failure to properly interpret a woman’s desires?” asked another reader, from Princeton Junction, New Jersey. He suggested using tort law, rather than criminal prosecution, to try accusations of unwanted sex. This would “shift the burden of proof toward the male while also lowering the threshold of proof that would be required in a criminal case.”
Schulhofer “is much too eager to protect women from responsibility,” argued a man from Nashville, Tennessee; Schulhofer, he believed, portrayed the average woman “like a helpless child or a Victorian innocent,” which is “unfair to men and condescending toward women.” Sanctions should apply equally to men and women because “men’s lives can be deeply affected by sexual encounters with women, especially when pregnancy or disease results.”
A letter writer from Waukegan, Illinois, predicted that the sexual autonomy laws Schulhofer proposed would turn the courtroom into a “place of rhetoric without justice.” The reality of sexual relations is what makes criminal laws “murky,” he wrote: “Few men in their early years in relationships have the right ‘moral’ understanding of sex. Fewer men are talking about sex in mature conversations.”
In the January and February 1999 issues of The Atlantic, Schulhofer responded to the counterarguments of each reader, as well as the patterns he observed from the full set of letters:
It’s revealing that so many men see nothing wrong in requiring a woman to ‘clearly communicate her objections.’ Such men simply take for granted their right to forge ahead, to penetrate her body, unless and until she unambiguously resists them. They think it ‘patronizing’ and ‘condescending’ of me to suggest an obligation to respect the privacy of a woman’s body until she chooses freely to accept intimate contact.
Schulhofer recalls being disappointed by these letters and the ideas they represented. The arguments were familiar, he told me, but he felt that they made points he had already explicitly addressed, and dismantled, in the article itself. Perhaps that was to be expected. “The experience with the work that I have done over the last 20 years,” he said, “proves how deeply entrenched these attitudes are and how fraught this issue is because of the concerns people project onto it.”
So what has changed in the past two decades?
For one, there has been a “gradual decoupling of sexual assault from this idea of force,” Schulhofer said. Companies and schools have better resources to handle these sorts of issues than they did in the ’90s, he noted, but still have plenty more hurdles to clear. But the point of view he was criticizing in 1998, Schulhofer says, is “still very much alive and well” in many states. While police and prosecutors have become much more sophisticated at implementing procedures that use context and background information to examine accusations, he explains, it is still difficult to move a sexual-assault charge forward in court. The issue is not whether these women are believed, but whether or not their case “checks all of the legal boxes,” which can sometimes still include extrinsic force.
Change, Schulhofer told me, should begin by encouraging a shift toward affirmative-consent (also known as “yes means yes”) laws in all states. (According to Rainn’s state law database, only a handful of states including Washington, California, and Illinois have definitions of consent that require “affirmative consent” or “freely given consent.”) Affirmative consent laws, Schulhofer says, would diminish the “vagueness” and “murkiness” of sexual-assault cases, making them easier to try in court and removing disincentives for women to come forward. This could have some negative effects, too, though. Schulhofer has concerns about the biases in criminal law toward minority men in particular. “I can’t be sure that the best laws in the world won’t be applied to some groups of young men over others,” he said. He continues to explore this issue, with a second book on the subject in the works.
As for public opinion, a 2015 Washington Post–Kaiser Family Foundation poll that surveyed just over 1,000 women and men ages 17 to 26 found that 34 percent of respondents preferred “yes means yes” standards when determining whether sexual activity is consensual, whereas 42 percent preferred “no means no.” Research also shows that definitions of assault are far from universally shared, even today; one recent study found that half of respondents who, by legal standards, were victims of rape did not consider their own experience as rape or sexual assault.
Since 1998, Americans have become more concerned with harassment in the workplace, or at least feel more comfortable voicing these concerns. According to FiveThirtyEight, a Time/Yankelovich Clancy Shulman poll in 1986 found that 17 percent of Americans felt sexual harassment was a “big problem” for women in the workplace. This number had more than doubled when the same pollsters conducted a survey just before Anita Hill testified against Clarence Thomas in 1991. Contrast that with a 2018 poll conducted by ABC News and The Washington Post that reported that 72 percent of Americans thought sexual harassment was a serious problem for women in the workplace. Media coverage has also changed over time. The Washington Post analyzed the number, framing, and content of articles published on the subject of campus sexual assault between 1980 and 2016 in The Washington Post, The New York Times, and USA Today, and found that there was not only an increase in coverage, but a shift from “episodic” coverage (reporting on specific cases) to “thematic” coverage (which encompasses “broader ideas, such as statistics, rape culture and victim-blaming”).
“The culture has changed quite a bit,” Schulhofer said. And yet his article published 20 years ago feels uncannily relevant today.
“What is at stake,” Schulhofer wrote in 1998, “is nothing less than women’s bodily security and every person’s right to control the boundaries of his or her own sexual experience.” The same might be said in 2018.