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Professor Dripps's provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our "negative" right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory.

Furthermore, according to Dripps, the expropriation of sex through nonviolent means may also be wrong, and even criminally so, depending upon the means used. It is much more difficult, however, to distinguish those sexual transactions that result from impermissible, albeit nonviolent, pressures from those that result from pressures that, although perhaps not commendable, are not sufficiently egregious to be made the target of the criminal law. Eschewing reliance on the presence or absence of the woman's consent as a means of distinguishing between criminal expropriations and permissible bargains, Dripps suggests that we focus instead on the "means" used to procure sex, and develop some set of guidelines by which to distinguish those means that are "legitimate" from those that are "illegitimate." Through consideration of a series of hypothetical cases, Dripps reaches the conclusion that expropriation of sex accomplished in part by disregarding an expressed, verbal protestation should be the paradigm for this lesser offense of nonviolent expropriation; a refusal to heed an expressed desire not to have sex violates rights of autonomy and should be criminal, although not punished as harshly as those expropriations accomplished through violence or threats.

Although this new offense -- nonviolent expropriation of sexual services in disregard of a verbal "no" -- would expand the criminalization of sex, it would leave untouched two important classes of sexual transactions, the first of which Dripps concedes may be problematic, but the second of which, Dripps argues, although viewed as problematic by a number of feminist writers, should not be so viewed. First, it leaves uncriminalized a wide range of sexual transactions that result from fraudulent misrepresentation. Surely these transactions are illegitimate, since they would be criminal if the commodity were anything but sex. However, primarily for pragmatic reasons (namely, that it would involve a "sweeping criminalization of sex," and particularly the recriminalization of adultery), Dripps argues that such sexual transactions should not be regarded as criminal. Second, it leaves untouched a range of sexual transactions that might concededly result in unwanted, undesired, and unpleasurable sex for the woman, but that are a part of what Dripps calls "complex relationships," in which sex is given in exchange not for pleasure, but rather for some bundle of goods presumed desirable by the woman -- including, for example, fidelity, economic security, or friendship. Those relationships, Dripps argues, may well involve nonmutual and unpleasurable sex, but the "means" by which the sex is obtained are "legitimate." Since the woman has in some way acquiesced in the totality of the bargain, an exchange of goods for sex does not constitute an infringement of the woman's rights or a denial of her autonomy, even if the sex itself is far short of ideal.

In these comments, I recapitulate my understanding of Dripps's argument, then suggest what seem to be some of the strengths and weaknesses of his suggested reform of rape law. I then comment in more detail on what I take to be the most serious danger of Dripps's proposal: the "commodity theory" of sex legitimates what should be regarded as morally problematic (whether or not criminally culpable) sexual transactions. I conclude by suggesting a way to retain some of the structure of Dripps's proposal without accepting its undesirable normative consequences.

Publication Citation

93 Colum. L. Rev. 1442 (1993)