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By Root 434 0

situations, in part because of the traditional but controversial notion that boys who have sex with adult women “got lucky.” Some researchers are even proposing that the law relax its ban on adult/adolescent sex, claiming that such sexual interaction is not particularly harmful if consensual. That of course begs the question of what counts as consent. The power dynamic is real, and perhaps it is better to err on the side of caution. A case in point: a few years ago an Australian judge released nine young men who had gang-raped a ten-year old Aboriginal girl. The judge said that the girl was not forced and that she had probably agreed to have sex with the boys, igniting a firestorm about whether such a verdict could be justified by Aboriginal culture’s supposedly lax attitude towards child sex. The next year, the same judge allowed a man accused of sexually assaulting an eleven-year-old boy to present evidence in his defense that sexual relations between older men and young boys was justifiable under Aboriginal culture.16 Neither case sounds like consent to me.

In the law of sex, the question of consent is inescapable. The crime of rape is defined by reference to consent. The entire determination of whether rape has occurred turns on whether both parties agreed, explicitly or implicitly, to have intercourse. Traditionally, the rule was that it was impossible for a husband to rape his wife, since marriage constituted consent to sexual intercourse for all time. Also, rape victims were traditionally required to prove lack of consent by showing evidence that the assailant had used physical force and that they had fought back. In New York, the standard was that “rape is not committed unless the woman oppose the man to the utmost limit of her power.” Evidence of resistance was seen as a solution to the “he said, she said” problem, an “outward manifestation of nonconsent, [a] device for determining whether a woman actually gave consent.”17 So the victim who was so terrified for her life that she failed to fight back was, by definition, not raped.

Courts eventually realized that the coercion inherent in rape might not only be by force. One New Jersey case concerned a fifteen-year-old girl who testified that a seventeen-year-old boy visiting in her home had penetrated her while she was asleep.18 (It was not statutory rape because she was over the age of consent and they were both under eighteen.) The boy’s testimony was that the girl was not asleep and had agreed to make out with him, and that he had not used physical force. The court called it acquaintance rape and announced that the victim would no longer have to show that physical force had been used in the course of the rape. The test instead was whether the alleged victim had given “affirmative and freely given permission” to engage in sex.

There is no doubt that this standard is better than the one requiring evidence of physical force. But we’re back to trying to figure out what “freely given permission” means. This is so difficult to determine that some experts have suggested that the law require something akin to real contractual negotiation before sexual relations.19

Choice matters outside of rape cases, too. Are sex workers—prostitutes, porn stars, strippers—engaging in consensual sex acts (albeit for cash), which means that their choices should be respected? Or are sex workers so constrained by their situations and by the sexism of society in general that their choices are not really free? In November 2008, a group of sex workers placed a measure on the San Francisco city ballot to decriminalize prostitution. The measure received 41 percent of the vote, and the group promises on its web site to introduce the measure again. The site’s headline reads “My Body, My $$$, My Choice! Consensual Sex Is Not a Crime!”20

In these examples and many others, free choice is often the key issue in the debate. What is choice, who has the right to choose, and what power does choice have? Usually, if a person agrees to something—if a person makes a choice—she is considered to have accepted