Transactional Rape as Breach of Contract

Posted by Jew from Jersey
19 August 2021

Rape in the strict sense is generally defined as sex absent of consent. This usually means rape by force, but may include other forms of non-consensual sex such as rape by deception. The incidence of rape in the strict sense has probably not changed much over the last century. While this cannot be proved, it cannot be disproved either, as the statistics on rape are famously confusing and their methodology notoriously inconsistent.

The renewed interest and debate over rape stems from second-wave feminists like Betty Friedan in the 1960s and Andrea Dworkin in the 1970s calling attention to the fact that a great number of women are very unhappy with sex. But lack of happiness is not lack of consent. For the most part, the focus of the new concern with rape is sex women consent to, but for a number of reasons are unhappy with. The confusion arises from attempts to remedy this unhappiness by criminalizing sex from which women emerge unhappy. But half a century of tinkering with legal definitions has not led to any less unhappiness, and the would-be legal saviors and sexual emancipators of women become ever more shrill, desperate, and prone to ever more extreme solutions. But all such attempts are similarly doomed to failure, because the assumptions behind them are wrong.

Rape is akin to theft in that something is being taken against the owner’s will. But this is already illegal in the case of sex as it is in the case of property and has been for a long time. So why are women so unhappy? Most attempts to answer this question assume that all sexual unhappiness must be like rape in nature. The most simplistic solutions claim that rape has become more common, that we live in a “culture of rape” and need to “teach men not to rape” or should have stiffer penalties for rapists. Characteristic of this approach was the “No Means No” campaign of the 1980s, which accomplished absolutely nothing. It turns out men already knew that no meant no, but some men were rapists anyway. It also became apparent that even women who had not said “no” were unhappy with sex.

A more subtle approach was to criminalize unwanted sexual advances that stop short of sex as “sexual assault”. At best, this practice has some merit, since an act of rape that stops short of forced coitus is still of a similar nature to a completed rape. But the assumption that criminalizing more acts that resemble rape would lead to happier sex lives for women turned out to be completely wrong, just like the mistaken assumption that men didn’t know rape was wrong or that sentences weren’t stiff enough to deter them. And at their worst, overly broad definitions of “sexual assault” threaten to criminalize sexual advances as such or even far more innocent behavior.

While “No Means No” was essentially common sense, the subsequent turn to “Yes Means Yes” was anything but. Under this new approach, all sex was rape even when no “no” had been uttered. Sex only became sanctioned when a woman actively said “yes.” The assumption behind this idea was that women who didn’t say “no” under “No Means No” were unhappy after sex because they had meant to say “no”, but felt intimidated, and so had remained silent and ended up raped, but then had no recourse to the law because they hadn’t actually said “no.” This assumption too turned out to be wrong, as it soon became apparent that women could be coaxed into saying “yes” just as easily as they could be intimidated into to not saying “no.” So yes didn’t really mean yes either.

“Yes Means Yes” had hardly been tried before it was found inadequate and was replaced with the requirement of “enthusiastic consent.” Under this scheme, a simple “yes” is not enough, but a series of additional “yesses” must be obtained at all stages throughout intercourse. The minute the yesses cease to be forthcoming, rape has occurred. Critics of “enthusiastic consent” point out the onerous burden it imposes on women and its detriment to the romantic or sexual dynamic as such. It is not even clear that it has even been tried as designed or whether it ever could be.

The unworkability of “enthusiastic consent” should be the final nail in the coffin of the attempt to criminalize women’s sexual unhappiness. It should be clear by now that even if “enthusiastic consent” could work, women would still emerge unhappy and a new and even more burdensome regime would be required, ad infinitum. Might it not be a better idea to go back to the original definition of rape in the strict sense, keep it criminal, and look for the sources of woman’s residual unhappiness elsewhere?

The vagueness of just how enthusiastic and how frequent a woman’s continual consent during sex has to be for a man to be clear of rape charges suggests the possibility that the ultimate goal of “enthusiastic consent” is precisely to allow women to bring charges against any man she has had sex with. She may indeed have said “yes” loudly 72 times, but the 73^rd “yes” was slightly quieter and the man failed to notice... Of a similar nature are the increasing calls that women be able to convict men of rape on the basis of accusation alone, with normal legal standards of “innocent until proven guilty” being waived for this particular crime. This innovation would have the novelty of making men unhappy too. But like all previous approaches, it would still fail to make women any less unhappy regarding sex. Attempts to criminalize sex if a woman has drunk any quantity of alcohol have a similarly miserable result.

What all these misguided approaches miss is that theft is not the only form of actionable property offense. Instead of trying to make it easier to convict men of the crime of rape or sexual assault, look to contract law.

Colleges and universities, in their zeal to enforce novel sexual behavior codes along many of the lines described above, can serve as an illuminating source of evidence. In numerous cases, women brought action against men they had sought relationships with. The men claimed the sex was consensual, sometimes in multiple occassions, and often had evidence, text messages, even eyewitnesses to corroborate this. The universities took action against the men anyway on various technicalities, alcohol, enthusiastic consent, etc. The one thing I think we can all agree on is that the women were unhappy. But why were they unhappy?

Why do drug dealers shoot each other so much more often than vendors of goods that are not illegal? Because they can’t go to court and sue for breach of contract if they were delivered baking soda instead of heroin. The solution here is obviously not to broaden the definition of illegal drugs and criminalize baking soda, but that is what feminists are trying to do with rape.

Imagine a small claims court where a woman could say, your honor, I had sex with the understanding that it was part of a long-term relationship, etc. It is not clear what penalties could be imposed, but the possibility that such things could be adjudicated would force couples having sex to more clearly articulate their expectations, or else lose the opportunity to seek redress. Instead of the incessant and fruitless asking of “Can I touch you here?” and “Can I touch you there?” what should be asked is “Can I not call you tomorrow?”

Another fertile source of unhappiness is the workplace and professional environments where sex may lead to promotions or influence. As with college hookups, the sex here is consensual and not rape in the strict sense. And as with college hookups, it often makes women unhappy and leaves them with no legal redress. Imagine a small claims court where a woman could say, your honor, I had sex with the understanding that I would be given my own weekly show, etc. There are many, many instances where a woman has sex not for the sex itself but for something she expects to follow from it. This is so common, it may well account for the majority of sex that women have. It is why “No Means No” didn’t work and why no degree of “enthusiastic consent” will ever work. The only way to address the ubiquitous unhappiness is to give some clarity to what is actually causing it.

Before the 1960s, when women had sex under disappointing circumstances, all they could do was feel ashamed, hope that no one found out, and vow to be more careful in the future. And they were unhappy. But subsequent attempts to criminalize the world and everything in it have not made them happier. Contracts don’t have to be in writing to be held in breach. As long as she can say “He said he’d call me!” or “he said I’d get a corner office,” she has a case. Make it contract law. Give breach a chance.

Such suits are not currently legal because contract sex remains illegal. But why should it be? Unlike like illegal drugs, sex itself is not illegal. It is only the sale or barter of it that is illegal. My central conjecture here is that the reason women are so unhappy is that they are using this legalistic discrepancy to slide into transactional sex without admitting it in order to avoid breaking the law, but then end up in the same position as the drug dealer who has no recourse to the courts when the deal goes bad.

But of course my proposed solution will not work either, because the real reason women don’t make explicit their expectations from sex is not that contract sex happens to be illegal at the present time. It is because women hate the thought of transactional sex and hate to admit they are engaging in it, even to themselves, let alone to anyone else, even when it is clear to themselves and to everyone else that that is exactly what they are doing.