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Redefining Rape
Alarmingly, when it comes to sexual assault, "no" doesn't always mean "no" in a court of law. The legal scholar Stephen Schulhofer talks about his new book, Unwanted Sex, and about why the laws need to change

October 22, 1998

Unwanted Sex Stephen Schulhofer, the author of The Atlantic's October cover story, has uncovered a disturbing truth: our expectations of the law's effectiveness concerning sexual assault and rape, based on media reports that are more open on the topic than ever before, do not coincide with the letter of the law. Despite decades of reform, Schulhofer argues in his new book, Unwanted Sex, the law still presumes that women are always interested in sex -- at any time, in any place, with any person. How hard is it to prove otherwise? Surprisingly, sexual misconduct is only considered "rape" when a man uses physical force. Courts often find that physically aggressive conduct short of a knife to the throat or a gun to the head isn't violent enough to be considered rape, and coercive pressures are ignored completely. The law aims to prevent physical brutality, but it disregards all the other reasons women and men sometimes submit to unwanted sexual advances. To make matters worse, our culture tolerates these other pressures. Schulhofer argues that a shift in perspective is in order: brutal rape forms just one part of the more general problem of unwanted sex, which our laws should condemn in all of its forms.
Discuss this feature in the Books & Literature forum of Post & Riposte.

Previously in Books & Authors:

Body Language (October 1998)
What's behind the work of John Edgar Wideman, the author of the new novel Two Cities, is simple: if you're going to talk the talk, walk the walk.

Manifest Destiny (September 1998)
A conversation with Robert D. Kaplan, whose latest work, An Empire Wilderness, suggests that the future of the United States won't be at all what we expect.

Fear of Falling (September 1998)
Andrew Todhunter talks about his new book, Fall of the Phantom Lord, about the rock climber Dan Osman, and examines the lure of putting one's life on the line.

Eve's Bible (August 1998)
An interview with Cullen Murphy, whose new book, The Word According to Eve, explores the revolutionary implications of feminism's encounter with religion.

Bittersweet (July 1998)
Roy Blount Jr. looks back at the complicated source of his career as a humorist -- his mother.

More Books & Authors interviews in Atlantic Unbound.

Stephen Schulhofer is the Julius Kreeger Professor of Law and Criminology and the Director of the Center for Studies in Criminal Justice at the University of Chicago Law School. He has published a widely used text book on criminal law, along with many articles in academic journals, and has worked on issues such as police interrogation, trial procedure, and problems related to women in the criminal-justice system, including domestic violence, rape, sentencing policy, and the treatment of women in prison. He has also been a consultant to the U.S. Sentencing Commission, which promulgates sentencing guidelines for federal judges.

Schulhofer recently spoke with The Atlantic's Katherine Guckenberger.

schulpic picture
Stephen Schulhofer
You wrote Unwanted Sex because you feel strongly that our laws against rape and sexual harassment fail to protect women from what you call "sexual overreaching and abuse." In which direction should our laws go in order to ensure better protection?

The first and the most important step is to recognize that sex should never be considered permissible unless there is genuine, freely given consent on both sides. When I first started working in this area I was amazed to discover that our laws don't do that. They do not give an unequivocal right to be protected against unwanted sex. So my proposal is to acknowledge that clearly and legally. And to provide criminal, civil, and regulatory remedies for conduct, usually male conduct, that forces a sexual relationship without genuine consent.

What do you have to say to the scholars and critics -- Katie Roiphe comes to mind -- who promote the view that legal reforms, campus-behavior codes, company policies, and so on, have gone too far, and impose absurdly strict regulations on day-to-day life?

That view is based on caricatures of actual court decisions and actual college-campus regulations. It's often based on extrapolations from claims that people make in lawsuits, even if the lawsuits are eventually thrown out. The fact is that existing laws against sexual harassment leave huge gaps. The laws that we have don't provide a system of protection against unwanted sex. They don't protect people against pressures and abuses that any civilized legal system should consider intolerable. There is no question that our law has been moving, very slowly, in the direction of providing women greater legal protection. That upsets lots of settled expectations and lots of assumptions about how we do business in our sexual lives, and that's naturally going to raise anxiety, which is then quickly picked up and exaggerated in media treatments. It's what grabs peoples' attention. I think there is another thread to this, though. What comes along with women's wanting to assert their independence and to be treated with equality and respect is the desire to resist any implication that women need to have special protection or to be coddled by the legal system.

Related links:

The Sexual Assault Information Page
A not-for-profit resource and referral service providing information and advice concerning all kinds of sexual assault.

United States Code Part One -- Crimes Chapter 109A -- Sexual Abuse
A detailed breakdown of the federal government's sexual abuse statutes provided by the Legal Information Institute at Cornell University Law School.

National Organization for Women
NOW's Web site offers background information on violence against women as well as suggestions on how to take legislative action against sexual abuse.

In Sex, Art, and American Culture, Camille Paglia wrote, "The minute you go out with a man, the minute you go into a bar, there is a risk ... part of the sizzle of sex comes from the danger of sex.... I'm encouraging women: accept the adventure, accept the danger!" Other people disagree, obviously. How do provocative and contradictory beliefs about a topic like this, including traditional differences of opinion between men and women, affect the role of the law?

For a lot of people the fact that there is so much controversy means that the law shouldn't intervene -- we shouldn't be setting standards and we certainly shouldn't be setting criminal-law standards when there is no social consensus. What that view overlooks is that the very nature of these controversies makes it essential for law to provide a framework so that people can know what their rights and protections are. We have a legal system that provides protection against the use of force to coerce sex. In many contexts the system requires that sex be consensual. And it protects people where their acquiescence has been forced upon them by reasonable fears. The problem is that with so much social disagreement, concepts like "force" and "consent" and "reasonable fear" lose all content, because people from all segments of society can't agree on whether conduct is forcible. They can't agree whether a woman's behavior signals consent. They can't agree about whether a woman's fears are reasonable. And in that type of a world what we think of as the legal boundaries evaporate.

In your book you point out that most non-lawyers are astonished to learn that a woman's definitive "no" is not enough to prove rape. How can that be possible?

That grows directly out of the fact that rape is defined as a crime of violence. And the two crucial facts that have to be present for "rape" to exist are both the absence of consent and the use of force. The way the law looks at it, a woman hasn't been raped unless her unwillingness or reluctance has been overcome by force, and unless she has been compelled to submit. Just showing that she was unwilling isn't enough.

The arguments you make revolve around the right to "sexual autonomy." What is your definition of this right, and how does it differ right now from other rights -- for example, the rights to property and privacy -- that we take for granted?

The way our world works now, many of our rights -- property, privacy, a right to vote -- are protected by a very comprehensive system of law. Depriving someone of these rights by force is against the law, but so is depriving them of these rights by extortion, which would mean nonviolent threats. Depriving somebody of these rights by deception is against the law, too. What makes sexual autonomy different is that our right to refuse a sexual relationship, or our right to keep our bodily integrity private and to exclude others, is not comprehensively protected. It's only protected against certain and violent means of intrusion.

Do you think that social disadvantage, inadequate education, or poverty, for example, can compromise a woman's ability to refuse a sexual relationship?

I agree that they can compromise a woman's freedom to choose, but we can't always hold individuals responsible for the kinds of pressures that arise out of social circumstances that no one has the power to change. We have to confront some hard questions when we're trying to decide whether background circumstances that limit people's options are sufficiently compelling to make people's choices invalid and to lead us to think of those choices as coerced. The problem here is that if people are living in difficult circumstances, and if their social and economic situation limits their choices, we don't necessarily help them by saying that everything that they would do under those circumstances is coerced. People might choose to work at very hard, very demeaning jobs because they have very few other choices, but if we say that's coerced, then they can't work at these jobs at all, and we cut off opportunities for them to improve their situation. Background conditions do limit our autonomy in significant ways, but they shouldn't make our choices legally invalid. What's quite different is when an individual threatens to take away from you some of your legally protected rights, like your right to compete on fair terms for a job or to obtain an education.

What do you think about the Supreme Court's recent ruling that an employee who resists a supervisor's advances need not suffer a tangible job detriment -- such as losing a promotion or getting fired -- to prove harassment? How will this affect women? Will it be easier to prove sexual harassment?

The new rules that the court has announced are a paradox in many ways -- they will make it easier for some women to prove their cases, but they will make it harder for other women. As you say, one thing the court did was to make clear that if a woman is being subjected to a hostile environment at work, she does not have to prove that she suffered any specific job detriment in order to recover. But the court didn't change its basic definition of what a hostile environment means, so we're still stuck with a definition that is surprisingly narrow.

People tend to assume that it's automatically harassment and a million-dollar lawsuit if a male supervisor uses any kind of off-color language on the job, or even if he compliments a woman who works for him. The current standard, though, provides that sexual advances or sexual commentary has to be unwelcome, the woman has to make the unwelcomeness clear by her behavior, and the unwelcome behavior has to be persistent.

I have to ask about President Clinton. Do you think that he harassed Monica Lewinsky?

No, I don't think that he did. Three different things come to mind when I think of President Clinton's alleged sexual conduct. One is the Paula Jones allegation, another is the alleged groping or hugging of Kathleen Willey, and then the third one is Monica Lewinsky. I think in all three of these situations there is huge disagreement about whether the conduct, if it occurred, should be illegal. Under the law as it stands right now, probably none of those things is.

Kathleen Willey's is the strongest case, because there was not only an unwanted proposition but actual physical contact. But I think a hug by itself is probably not a sexual assault, unless the person has made clear that it's unwelcome. A kiss on the cheek, too, is something that is socially acceptable in many contexts, even without a clear green light. If the President touched her breasts or genitals without permission then I think we could have a possible case of sexual assault. In the Paula Jones situation, I think that simply asking for oral sex, as Jones alleges Clinton did, wouldn't by itself constitute sexual harassment or assault under our existing laws. The case of Monica Lewinsky is even clearer under existing law, because there is no conceivable argument that what he did was unwelcome. That is very clear. As a result there is no criminal offense and there is no possible charge of sexual harassment. But there is intense disagreement about that. Many people feel that when you have an imbalance of power so extreme -- a very young intern, the least powerful person in the whole office, having a relationship with the most powerful person -- it should be illegal. There are severe problems with ostensibly consensual relationships at work, but I don't think that we should have a per se prohibition on relationships between supervisors and subordinates. To rule them out altogether would impose a huge burden on people's freedom and ability to form intimate relationships and to have a satisfying life with a partner.

If both people are consenting adults then it shouldn't be a problem?

Right, but it all comes back to the question of what we mean by consent. This is where it gets tricky, because just saying "yes" doesn't show that you have given uncoerced consent. What worries people in a situation of an extreme imbalance of power is that the boss may say, "Let's go to a motel," and the subordinate may agree, may verbalize a "yes," but may do that only because she feels she has very little choice.

At one point in the Starr report Monica Lewinsky explains that very early on, alone in the Oval Office with Clinton, he would be on the phone and he would unzip his fly and indicate that he wanted oral sex, which she would perform. It seems to me that this could be one of those situations, where Lewinsky felt that she really couldn't refuse.

This is what makes these problems so tough -- if a person consents because she feels she has no choice, or if she's afraid that she will suffer serious consequences for refusing, she may fear that she will be reassigned to the Pentagon or that she will be fired all together, or she could even be sent to the EPA. Maybe that would be even worse.

Banished to the EPA ...

Banished. I don't mean to trivialize the EPA, but if someone is working in the White House and their concern is that they are going to be transferred to a very low-level job at a remote outpost, a dead-end job with lower pay and no prospects, they have a right to be protected against that. They have a right not to be fired or demoted because of their refusal to provide sexual services.

Even if they've cultivated a relationship up to that point.

Absolutely. I've discussed many cases where, incredible as it may seem, bosses say this: "Put out or you are finished with this company." If a boss says that, he is just overtly threatening to deprive someone of rights that any decent legal system should protect. The problem here is that there are women who might want this kind of contact. What we have to try to tease apart are situations in which the woman is genuinely willing and interested for whatever reason and the cases in which she is doing it because she feels she has no choice. I think that the only way to try to resolve this dilemma in a practical, workable way is to have rules that don't totally chill the legitimate opportunity that people have for developing relationships, meaningful and mutually desirable relationships. The idea of ruling out any relationships in the workplace has some value, since we want to make sure that a woman will never be in the situation of feeling she has to accept a proposition. But at the same time such restrictions throw cold water on every possible chance for consensual romance between people who are together in the same workplace.

More so now than ever, because people get married later and later these days, and a lot of people do meet one another in the workplace.

Right. In fact, many people feel that for all the dangers, the relationships that develop at work are comparatively safe.

At least you know your colleagues...

What are the alternatives? The singles bar? The personals column? This is what is really frightening. We don't want to create a world in which the only legal way you can meet someone is blindly.

I think that a workplace rule would destroy far too much of a very important facet of our freedom. There are other contexts, though, where I think that we can safely have these kinds of rules. If we're talking about psychiatrists with their patients, for example, the situation is altogether different, as it is if we're talking about teachers with students. Now, practically everybody knows someone who met a spouse under those circumstances and had a long and satisfying marriage, but nonetheless the opportunities for abuse in these particular kinds of settings are so real that there definitely is a need for stronger protection than the law gives us now.

More Books & Authors interviews in Atlantic Unbound.

Discuss this feature in the Books & Literature forum of Post & Riposte.
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