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Disabling consent, or reconstructing sexual autonomy.

Abstract

Does a right to sexual autonomy criminalize the embellished pick-up line? Or does a right to sexual autonomy permit each and every consensual sex act, however life-threatening, or even life-ending? This Article defends (by reconstructing) sexual autonomy as the governing principle of modern rape law. Powerful criticisms of sexual autonomy otherwise normatively opposed share an antecedent assumption: that sexual autonomy can be read off and as first person present active (or passive) consent (Part I). This Article argues against the conflation of sexual autonomy with sexual consent. Instead, and in conversation with competing liberal and feminist political theoretic accounts of sexual autonomy, this Article defines sexual autonomy as the capability to codetermine sexual relations (Part II). By interfacing a revised concept of sexual autonomy against and alongside State v. Fourtin, a 2012 Connecticut Supreme Court decision overturning a conviction of sexual assault against a severely mentally and physically disabled woman (Part III), the Article proposes three possibilities for statutory reform: refurbishing consent; expanding restrictions on status relations; and applying an accommodation model of disability entitlements to sexual relations (Part IV). After synopsizing our interventions, the Conclusion reminds readers that our brief for sexual autonomy, relationally reconstructed, presumes and propounds the ordinariness, not the extraordinariness, of sex.

INTRODUCTION

In 2012, the Connecticut Supreme Court found Richard Fourtin not guilty of sexually assaulting a severely mentally and physically disabled woman, (1) contravening his 2008 trial conviction. (2) Referred to as "L.K." in court hearings, (3) the alleged victim is wheelchair bound and suffers hydrocephalus and cerebral palsy. (4) L.K. is nonverbal and communicates via a messaging board. (5) She is also the daughter of Fourtin's then- girlfriend. The trial jury's decision hinged on whether L.K. is "physically helpless" and thus unable to consent to sexual relations. (6) The Connecticut Appellate Court reversed the trial jury's conviction: because L.K. has a demonstrable history of registering displeasure or discomfort through "biting, kicking and scratching," she could not be deemed, by any reasonable trier of fact, physically helpless. Acting, perhaps, as a "thirteenth juror," (7) the Connecticut Supreme Court affirmed the appellate decision.

Needless to say, State v. Fourtin has infuriated feminists, anti-sexual violence activists, disability rights advocates, and many others. (8) By most accounts, Fourtin is an unmitigated disaster--it declares open sexual season on persons with disabilities. (9) Unless a person with disabilities is functionally and physiologically equivalent to someone who is unconscious, asleep, or blackout drunk, she is unprotected by the "physically helpless" subsections of the Connecticut sexual assault statutes. (10) Worse still: if a person with disabilities kicks, bites, and scratches her assailant, this conduct will be used as evidence against her alleged physical helplessness. Resistance, in this instance, is proof not of nonconsent, but of capacity to consent. (11)

This Article revisits the facts, findings, and fallout of Fourtin circuitously, by way of and in order to vindicate a reconstructed, relational right to sexual autonomy. For normative and material reasons to be elaborated below, we are cautious of liberal efforts to stretch the protective net of "physically helpless" or similar subsectional clauses. (12) We worry about ableism (13): We worry that such paternalist legislation may unjustifiably impede persons with disabilities' wanted sexual relations, reflect the phobic conjunction of disability with asexuality or pathological sexuality, and reiterate the common, careless equivalence of disabled adults and children. (14) Instead, we argue that sexual autonomy, relationally reconceived as the capability to codetermine sexual relations, might better protect L.K. while also better protecting sex. (15) A sexual autonomy right, irreducible to first person present active (or passive) consent, redraws statutory lines of sexual permissibility and impermissibility. As a governing principle of modern rape law, this version of sexual autonomy would reach sexual conduct and relations heretofore unregulated, while retreating from conduct and relations heretofore proscribed.

Part I critically reviews two recent, tour-de-force criticisms of sexual autonomy: Jed Rubenfeld's The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy and Marc Spindelman's Sexuality's Law. (16) Rubenfeld insists, and Spindelman implies, that sexual autonomy is a dangerously misguided principle of modern rape law. Both argue too that "sexual autonomy" is a contradiction in terms. (17) Yet, these authors' criticisms of sexual autonomy could not be further apart. Whereas Rubenfeld argues that sexual autonomy, as a governing principle of rape law, licenses nearly totalitarian state interference over the intimate lives of its citizens, (18) Spindelman is equally alarmed that sexual autonomy, as a governing principle of rape law, licenses harmful, violent, life-destroying sex. (19) Despite their seemingly incongruent broadsides against sexual autonomy, each author presumes sexual autonomy is equivalent to and fully exhausted through first person present active (or passive) consent. (20) Once we rupture the equivalence between sexual consent and sexual autonomy, the force of these authors' critiques may be recalculated, recalibrated, and redirected; new problems become more perceivable; and new remedies begin to present themselves.

But what could it really mean to suspend consent as the necessary and sufficient condition of sexual autonomy? Isn't consent good, right, non-moralized, even sexy? (21) Part II canvasses competing accounts of sexual autonomy to reveal a more promising, more feminist-inflected constitution of the term. Sexual autonomy need not be a performative contradiction, as it appears to be with Immanuel Kant, (22) and it need not presuppose the fiction of the fully developed, wholly independent, adult rational actor. (23) Nor, alternatively, must sexual autonomy be reduced simply to adult choice, as it appears to be with Stephen Schulhofer. (24) Part II rehearses and defends sexual autonomy as the capability to codetermine sexual relations, a definition developed directly from Jennifer Nedelsky's relational reconstruction of autonomy and indirectly from Martha Nussbaum's Capabilities Approach. (25) Such a capability entails: a noninterference right to most, but not all, chosen sexual relations; restrictions on sex in certain status relations; and positive provisions for sexual education and information. This version of sexual autonomy accords consent significant but not primary jurisdiction. And it is keyed, in the final instance, to human flourishing.

Part III returns to Fourtin, detailing the facts of the case, subsequent criticisms, and legislative aftermath. We offer, respectfully, a metacritique: dominant activist and political responses to Fourtin peremptorily disqualify L.K., as well as those similarly situated, from sexual autonomy. Like Spindelman and Rubenfeld, critics of Fourtin synonymize sexual autonomy with sexual consent, and reserve sexual consent for the fiction of the adult, rational, able-bodied, able-minded actor. (26)

Part IV asks: how might sexual autonomy as the capability to codetermine sexual relations--as a right not exhaustively dispatched through first person present active (or passive) consent--govern sex and disability? How might the law, in Connecticut and beyond, enshrine a sexual autonomy right for persons with disabilities (which might be all of us)? (27) Dispelling the presumptive incompatibility between "autonomy" and "disability," we delineate three options for reforming sexual assault law: 1) refurbish (by reprioritizing and redefining) consent; 2) expand status restrictions on sexual relations: prohibit sexual conduct not only between parents and their children and teachers and their students, but also across other relations of dependence; 3) specify persons with disabilities as a protected sex class: apply an accommodation model of disability--that is not merely an antidiscrimination model--to sex law. Thus, obligate the state to accommodate sex. (28) After summarizing the philosophic and policy interventions addressed in this Article, the Conclusion reminds readers that fostering sexual autonomy ultimately dedramatizes, rather than aggrandizes, sex.

I. Sexual Autonomy Trashed: Overinclusive, Underinclusive (29)

In recent years, we have witnessed renewed popular and media attention around campus sexual assault, (30) sexual assault in the United States military (and retaliation for reporting), (31) sexual violence in international conflict zones, (32) and legislative and judicial attempts to limit women's reproductive rights. (33) One might think now would be a prescient moment for legal scholars to carry a brief, once again, (34) for sexual autonomy. Instead, two such scholars, Jed Rubenfeld and Marc Spindelman, took sexual autonomy to the junkyard, to be disposed of along with seduction laws, (35) Lochnerf (36) and all those other noble ideas whose detriments were obfuscated by presentism. Both authors offer sustained, smart, and relentless broadsides against sexual autonomy; both see sexual autonomy as a contradiction in terms. Yet, their normative and consequentialist concerns are antipodal. Rubenfeld worries that sexual autonomy overreaches and patronizes women. Spindelman worries that sexual autonomy underachieves and imperils gay men. Both Rubenfeld's and Spindelman's arguments are underpinned--and ultimately undermined--by the conflation of sexual autonomy with sexual consent.

A. Overinclusive: Rubenfeld's Riddle

In The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, Jed Rubenfeld argues that sexual autonomy is ascending as the governing principle of rape law in the United States and other postindustrial nations, indexed by the substitution of nonconsent for force as the gravamen of sexual assault. (37) In the 1970s, liberal and feminist legal scholars and activists spearheaded reforms to modern rape law. (38) The force requirement was nearly impossible to prove; only the narrowest subset of sexual misconduct was actionable. (39) Presupposing that the problem of rape is the problem of the stranger-predator- in-thebushes-with-a-knife, the force requirement was inhospitable to cases of acquaintance rape, coercive sex, and even sex that was resisted (but not resisted in a form masculinist enough to register "force" to judges and juries). (40) Nonconsent, it was hoped, would capture a wider range of sexual misconduct, emphasizing infringement of choice rather than the violent violation of the (woman's) body. (41)

It is against the backdrop of these progressive reforms and several outlier sexual assault convictions in its wake that Rubenfeld's riddle surfaces. (42) According to Rubenfeld, if we take sexual autonomy seriously, deception of any kind must be actionable, as it corrupts consent. (43) Under the principle of sexual autonomy, "fraud is as great an evil as force." (44) Any deception that induces sex--lying about your alma mater, your net worth, or your profession, or even the application of make-up--manipulates consent. (45) Under a sexual autonomy regime, all such deceivers should be convicted of sexual assault. Rubenfeld warns: seventeen-year-olds who lie about their age in order to have sex with older partners would be both victims and perpetrators of sexual assault. (46) For Rubenfeld, this outcome is inevitable and ridiculous. Seeing no plausible side constraint to the ambit of autonomy, Rubenfeld proposes that we jettison sexual autonomy from rape law, advocating instead a re-installment of the force requirement. Rape violates not a choice-right but "a right to bodily self-possession," abrogated only by force (imprisonment, overpowering, physical restraint) or threat of force. (47) Consent reenters sex law singularly as an affirmative defense against forcible subjection, transforming rape into permissibly rough, kinky, and/or BDSM sex. (48)

B. Underinclusive: Spindelman's 'Sexual Death-Blow'

In "Sexuality's Law," Marc Spindelman's attack is launched not chiefly at sexual autonomy, but rather at what he calls the "ideology of sexual freedom," an ideology he holds responsible for the "lay[ing] waste" of gay men. (49) The ideology finds its intellectual progenitors in writers and philosophers like the Marquis de Sade, Georges Bataille, Jean Genet, Jean-Paul Sartre, and Michel Foucault; (50) it is refracted through hegemonic masculinity, the HIV/AIDS epidemic, and homophobia; (51) and its recent and contemporary flag-bearers--not always consciously, not without contradictions, and never univocally-are gay male theorists like Douglas Crimp, David Chambers, Richard Mohr, Leo Bersani, and Tim Dean. (52)

Under the ideology of sexual freedom, sex "is the value of all values." (53) Sex is life-generating, life-destroying, subject-creating, subject-shattering, world-generating, and world-excluding. (54) Sex obliterates social order as it catalyzes new vistas of the possible. (55) Where the ideology inexorably devolves, for Spindelman, is an "erotics of death," (56) the sacralization of violence that, at its limitless limit, "entails a right to die for sex and also a right to kill in its name." (57) On Spindelman's account, it is gay men's allegiance to and interpellation by the ideology that results in internalized homophobia, the equation of sexual freedom with sexual violence, the underreporting and trivializing of sexual abuse within gay communities, the eroticization of HIV/AIDS and seroconversion, and the censoring or self-censoring of dissent. (58)

One might think sexual autonomy would provide a glimmer of hope in this otherwise grim account. As a recognizable legal limit, sexual autonomy is the liberal side-constraint to the ideology of sexual freedom's corresponding injuries and violence. (59) Not so, argues Spindelman, whose deep skepticism is occasioned by Richard Mohr's defense of sexual autonomy in Gays/Justice. (60) First, given how phenomenologically fabulous sex is, for Mohr, and given that sex, if done right, is supposed to break all our boundaries, sexual autonomy is a rearranged deck chair on the Titanic. (61)

Second, though, and more pertinent for the purposes of this Article, sexual autonomy is immanently hospitable to an erotics of death: "If autonomy means anything, it is that one must be able to sacrifice oneself and one's life for one's deepest belief." (62) Consent grants "an immunity ... to deal a sexual death blow. [One's] partner's underlying consent vitiates any notion that his death, sexually achieved as a result, is a harm. There can be no victims in this sex." (63) Sexual autonomy, by licensing all consensual sexual activity, licenses any injury attendant to sex, even death, because sex is the best. For Spindelman, HIV/AIDS is "sexual death" par excellence. (64) Sexual autonomy permits seroconversion. A fortiori, sexual autonomy equals sexual death. (65) By enshrining sexual death into sexual assault law, sexual autonomy violates the obligation of the liberal democratic state to prevent and punish individual harmful conduct. (66)
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Title Annotation:Abstract through I. Sexual Autonomy Trashed: Overinclusive, Underinclusive B. Underinclusive: Spindelman's 'Sexual Death-Blow', p. 428-461
Author:Fischel, Joseph J.; O'Connell, Hilary R.
Publication:Columbia Journal of Gender and Law
Date:Jul 22, 2015
Words:2256
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