Disabling consent, or reconstructing sexual autonomy.

• Author: Fischel, Joseph J.
• Position: I. Sexual Autonomy Trashed: Overinclusive, Underinclusive C. Sexual Autonomy (Not Equal to - For Persons with Disabilities

3. Sexual Autonomy [not equal to] Consent

   Despite Rubenfeld's and Spindelman's otherwise contrary critiques of sexual autonomy--overreaching and under-protective, respectively--both authors equate sexual autonomy with consent. If sexual assault law is premised on consent, warns Rubenfeld, we are obliged to send teenagers to prison for lying about their age in order to have sex. (67) If sexual assault law is premised on consent, warns Spindelman, gay men can infect one another with HIV with impunity, and there is no actionable harm. (68)

   But what if sexual autonomy denotes something other than, or something more than, first person present active (or passive) consent? Before elaborating that something--that is, before retrieving and then defending a reconstructed, relational, and feminist sexual autonomy--we revisit Rubenfeld's and Spindelman's cases of sexual autonomy gone wild. What inklings are there, in these authors' own examples, of sexual autonomy theorized otherwise?

4. Three Seventeen-Year-Olds

   In his gauntlet-thrown offensive, as well as in the reply to his critics, (69) Rubenfeld repeatedly circles back to teenagers and teenage sex, and specifically to sex with and between seventeen-year-olds. (70) The seventeen-year-old, on the eroticized precipice of majority, (71) is the character that dramatizes the deficiencies of sexual autonomy. But each of his three teen sex scenarios could and should be spun differently, shoring up the possibilities, rather than the pitfalls, of sexual autonomy. We briefly summarize each of his scenarios and amend them with a few provocations--provocations to be fleshed out in Parts II and IV.

   1. Seventeen-Year-Old #1

      If sexual autonomy is equivalent to consent, then sex-by-deception--any deception--is, concludes Rubenfeld, equivalent to sexual assault. If a seventeen-year-old lies to have sex with an older partner, consent is thereby compromised, the teen therefore assaultive. Rubenfeld appeals to a liberal-leaning, feminist-friendly audience. Are we prepared to incarcerate a seventeen-year-old girl for lying about her age to have sex with an older man? (72) If not, there is but one plausible option: junk nonconsent and reinstate force requirements. (73)

      First, we should recognize the statistical infrequency of this teen lie, or mootness of the lie (if the lie is told to convince an otherwise law-abiding but libidinal citizen). Rubenfeld mistakenly (or misleadingly) presupposes that the age of consent for sexual conduct is eighteen, a commonly held misperception. But in nearly all states the age of consent is sixteen; (74) so too, nearly all states include age-span provisions in their sexual assault codes. (75) In many states, for example, it is legal for anyone of any age to have sex with a sixteen-year-old, but only those seventeen and under are permitted to have sexual relations with fourteen-year-olds. (76) To the extent that this lie occurs, and occurs to convince a suitor of the ensuing sex's legality, the more likely scenario would be the following: a fourteen-year-old lies about her age to have sex with someone eighteen or nineteen. (77) To compete on Rubenfeld's rhetorical plane: a high school freshman lies about her age to have sex with a college freshman or college sophomore. In this circumstance, we may more justifiably conclude that the high school freshman is not accountable for sexual assault, but because she is not accountable to sex. In other words, we do not hold her criminally accountable for the lie for the same reason the law proscribes sex with her: she is not as capable a decision maker--on account of experiential, educational, and developmental differences--as an older teenager or adult. This legal fiction--an incompetent and thus innocent fourteen-year-old--is more palatable to liberals and sex progressives than the fiction of the incompetent and thus innocent seventeen-year-old. (78)

      This observation about the extant age of sexual consent law segues to the second and more important criticism of the lying teenager hypothetical. In the rare jurisdictions where the lie would be advantageous, maybe it is the jurisdiction, not the teenager, that is in the wrong. (19) And that wrong is a violation of sexual autonomy, both the teen's and her partner's. The seventeen-year-old lies because the law infringes on her sexual autonomy. In that case, the restructuring of legal relations, rather than the simple performance of individual consent, is componential of sexual autonomy. (78) This initiates a broader, dedramatized (and de-eroticized) perspective unthinkable in Rubenfeld's focus on immediate sexual encounters. The corrective in criminal law in the case of the lying teenager is to expand rather than contract the ambit of sexual autonomy, extending its normative and material coverage to older adolescents.

   2. Seventeen-Year-Old #2

      If we jettison sexual autonomy as Rubenfeld advises, we cannot, he concedes, convict a high school principal of sexual assault for coercing a seventeen-year-old into sex on the threat of expulsion (the principal could, though, be charged with some form of professional misconduct). (81) Like deception, explains Rubenfeld, coercion vitiates consent. Coercion is thus no longer a touchstone for sexual assault once the question of consent is immaterial to rape. (82) But this only holds true if autonomy is equivalent to consent. If sexual autonomy also entails protecting choice and choice structure from undue interference, and entails guarantees against impermissible impediments to future decisions and decision- making, then the law might more strenuously regulate status relations and relations of dependence, regardless of consent. In other words, there might be a version of sexual autonomy that prohibits sexual relations between high school principals and their students, whether or not the sex is consensual. (83)

   3. Seventeen-Year-Old #3

      If the open secret of age of consent laws is that we all know seventeen-year- olds can consent to sex, writes Rubenfeld, then his revised rape law, tethered only to force, does not reach sex between minors or between minors and adults. (84) But morality does, assures Rubenfeld. (85) States are free (within the limits of other constitutional guarantees, like equal protection or privacy) to enact statutes proscribing sexual conduct deemed immoral. (86) This backstop to Rubenfeld's obliteration of modern sex law comes at an unacceptably high cost: the very totalitarian reach into citizens' intimate lives that animated Rubenfeld's critique from the outset. (87) If morality is reintroduced as a legitimate basis for the regulation of sexual conduct, what is to stop the state from restricting sex among unattractive people, overweight people, gay people, (88) or people with disabilities? Rather than re-open the door that Lawrence v. Texas shut, (89) it is both more practically feasible and normatively defensible to retain consent while reconstructing sexual autonomy.

5. Other Sexual Death-Blows

   Spindelman's most dangerous misstep in "Sexuality's Law" is the equation of HIV/AIDS with death, the sine qua non predicate of Spindelman's broadside. For Spindelman's critique to find traction, for there to be an ideology of sexual freedom "laying waste" to gay men, Spindelman must figure HIV/AIDS, and HIV nondisclosure and transmission, in a particularly invidious and phobic way. (90) At Spindelman's rhetorical peak, HIV appears as a weapon brandished by sex-crazed, death-crazed homosexuals hell-bent on spreading, with impunity, their virus. (91) Spindelman conjures Patient Zeroes, predators primarily responsible for the stubborn incidence and prevalence of HIV among United States gay men. (92) HIV-positive men are both Spindelman's sex victims and sex offenders. In this way, HIV/AIDS literalizes the "erotics of death" that sits at the heart of gay men's alleged fidelity to sexual freedom. (93)

   Spindelman might counter that our critique performs a disavowal of gay male responsibility for the perpetuation of sexual injury and "sexual death" in the form of HIV/AIDS. (94) But such a rebuttal misapprehends opposition to HIV criminalization laws. HIV nondisclosure and transmission laws were codified mostly mid-epidemic and midpanic. (95) They overestimate risks of certain sexual activities, assume risk where none exists, add stigma to an already stigmatized identity category, take little or no account of risk-reducing behavior (like taking antiretrovirals), and may very well deter HIV-testing by incentivizing ignorance. (96) Enforcement of potential HIV exposure laws is often vindictive, racially disparate in impact, and disproportionately targeted against straight- identified men of color. (97) There is no evidence that criminalization lowers either risks or rates of HIV transmission. (98) Meanwhile, safer sex campaigns, antiretroviral therapies, serosorting, harm reduction practices, and pre-exposure prophylaxis did not materialize solely so that men could have sex with other men without consequence. (99) These are efforts to redress the harms of HIV without assuming maniacal evildoers and to change the medical and cultural import of HIV so it is not a death sentence but a manageable health condition. If we care about reducing HIV rates of infection and if we care (like Spindelman does) about generating less-toxic sexual relations, we should advocate for lowering the costs of treatment, making screening and treatment more accessible, and increasing funding for comprehensive sexuality and prevention education. (100) Because Spindelman is wrong about the medical and cultural meaning of HIV, he is wrong to support the criminalization of HIV transmission.

   On the other hand, Spindelman exposits another equation: sexual autonomy as realized through any consensual sexual activity whatsoever. (101) And this equation, not the equation of HIV with death, rightly troubles the good liberal's normative priors. Hiding in...