This is an archive of the former website of the Maoist Internationalist Movement, which was run by the now defunct Maoist Internationalist Party - Amerika. The MIM now consists of many independent cells, many of which have their own indendendent organs both online and off. MIM(Prisons) serves these documents as a service to and reference for the anti-imperialist movement worldwide.
Unwanted Sex: The Culture of Intimidation and the Failure of Law
by Stephen J. Schulhofer
Cambridge: Harvard University Press

reviewed by MC5
From MIM Notes 182

There is so much wrong with this book that it would take another book to cover all its political errors and factual distortions. Here we will focus on just three areas: communism versus reformism, subjectivism and law, and rape as theft.

Communism versus reformism

Schulhofer is familiar with our arguments about gender and we would not be surprised to learn that he had read our MIM Theory 2/3. "If any disparity of economic or social power is sufficient to establish coercion, then unacceptable force is pervasive in sexual relationships and in all human affairs" (p. 53).

His response to radical and revolutionary feminism is aggressive liberal individualist reform. He proposes a huge array of reforms to sexual assault law and its interpretation in the United $tates -- for everything in every possible individual scenario to be argued in court. He acknowledges that men have more power than wimmin and talks about this problem -- the problem of starving wimmin exchanging sex for humyn needs at one extreme and supermodels sleeping with photographers and movie directors at the other extreme.

Schulhofer considers but rejects the idea of communism. He considers but rejects the idea that the physical act of intercourse is itself rape (see Andrea Dworkin) -- with notable exceptions discussed later. Furthermore, "if sexual interaction is ruled legally out of bounds every time one of the parties has any possible source of power over the other, our opportunities to find companionship and sexual intimacy will shrink drastically. To create a legal barrier to every relationship not formed on the purely neutral ground of the singles bar or the church social would be pathetic and absurd" (p. 14).

MIM would go further: there are no relationships that escape the dynamics of power in our society; yet, as revolutionaries, we do not tell the workers simply to give up working. That is not our solution. Neither do we think that revolutionary feminism means giving up sexual intimacy just because all sex is currently rape. Giving up intimacy is a real option for people right now, especially in the imperialist countries -- but the only complete answer is eliminating the underlying power structure.

The bottom line is that Schulhofer finds it unfortunate that starving wimmin with children might need to find a male to sexually service to survive, but he concludes there should be nothing illegal about that situation, especially in a short-term relationship where there is no divorce. In fact, in Schulhofer's individualist way of thinking, the use of power by professors interfering with wimmin's petty-bourgeois careers is worse than the use of food for the starving! (p. 110).

He spends pages and pages talking about various situations in the workplace ranging from harassment for sexual favors to bribery of superiors by wimmin seeking unjustified promotions -- where there are both spoken and unspoken threats and promises. The simple solution that exists under socialism -- the guarantee of a job -- eliminates the possibility that career power can be used to obtain sexual services the way it is now. Also, with the removal of the profit motive and the creations of a different socialist ethos, the aspiration to "climb the ladder" for persynal benefit will be sharply reduced.

Under socialism, there would be no reason a womyn would keep quiet about threats for fear of her career, because business will no longer be run by private interests. Her job and geographic job mobility would be guaranteed no matter what one particular persyn thought or wanted. In one swoop of socialism, we eliminate what is probably more than a million cases per year in the U$A.

Under communism we would go a step further and eliminate the power of people over people completely. That is the simplest and most enforceable answer to the sexual harassment in the workplace problem.

Subjectivism and the law

Law professor Schulhofer has found a gold mine for attorneys in describing how unwanted sex should be tackled -- subjectivism and individualism. The backlog of cases he wants to create will fill the courts' dockets and lawyers' pockets.

After consciously rejecting simple and revolutionary answers to unwanted sex, Schulhofer seeks to refocus the law on consent (p. 22) and figuring out how to determine if consent is given -- case by ponderous case. This means that he wants courts to enter into the subjective mind-frame of accuser and accused. The reason he gives is that too many rape cases depend on proving the use of violence, when there is also non-violent theft -- as when a thief sneaks in and out of a house undetected.

Once we accept this premise of Schulhofer, we are free to conclude that the same set of actions may result in marriage in one case and a rape case in court in another situation. He fully admits: "Physically assertive conduct that seems alluring to one woman may seem terrifying to another" (p. 49). That is what we mean by subjectivism. The fact that Schulhofer wants each case considered in all its details demonstrates both the hopeless principle of individualist reformism and the nature of legal discourse as pornography.

Schulhofer opposes corroboration requirements (medical examination or witnesses), which existed in the law until the 1970s, that made it impossible for a womyn to convict her rapist based on just her word against his (pp. 18, 19, 26). He claims that such did not exist in other areas of law; although he never deals with the fact that in murders there is usually a dead body or at least testimony to its existence by the accused in rare cases. If someone is shot dead in most cases it won't be because the victim wanted it. Contrary to consistent anti-Liberals like MIM, according to Schulhofer's view, most sex is consensual, so he has no business drawing an analogy with murder.

In thefts there can be recovery of the wallet. So in sex there is no consistent Liberal reason to leave it to the womyn's word in court. Apparently Schulhofer believes that a womyn's word may be so credible that no reasonable doubt could be raised by a man so accused.

Marxists are familiar with such reasoning. Under feudalism in Europe, there were many cases where no standard of proof by the peasant was sufficient to overturn the word of the lord. This is a hypocritical and selective introduction of non-Liberal ideas into the court system, ideas that leave 100% discretionary power to the ruling class to convict when it sees fit, case by hypocritical case. Such discretionary power does not get used to eliminate rape. It only gets used to make people think something is done about rape when in fact the ruling class has an agenda of using rape for oppression.

Some examples of what Schulhofer thought should be counted as evidence of force -- the flexing of muscles (p. 76), an unspecified threat made after sex (p. 44) and the difference in age between a 15-year-old and a 20-year-old (p. 111).

Perhaps the best subjective move made by the courts and backed by Schulhofer was to consider the act of penetration itself force worthy of conviction. Here is Dworkin being used against one man in a New Jersey case of 1992. Schulhofer admits that it was not a case where there was any "tearing of tissue, bleeding, or severe abrasions"(p. 95). There was no damage. "The requirements for a felony conviction -- penetration and physical force -- would be met by the physical thrusting involved in every act of mutually desired intercourse"(p. 95). He applauds because he believes there was no consent, and the law be damned for having to prove force. There were many disgusting cases in the book, from both the defendant's and the accuser's point of view, but this one may be the worst, because it proves that courts will take Dworkin-like arguments and apply them only when they feel like it.

A similar case that Schulhofer wanted raised was one involving a size differential. He was 6 foot 2 and 185 pounds and she was 5 foot 2 and 100 pounds. She did not utter any objections (pp. 268-9). After conviction he only won on appeal. Once again, if size is the fact of force, then we have just condemned the vast majority of relationships, but the court typically employs this kind of reasoning to go after one persyn. In other words, it is yet another discretionary tool of the ruling class available at almost all times when the court needs it.

Not all lawyers agree with Schulhofer. Michigan tried to get out of the interpretation of consent problem, but like others, it failed with its legal reform. A law passed that said any intercourse that occurred while armed was non-consensual by definition. That stood until someone got a life sentence for having a gun in his car and having intercourse with a womyn (pp. 35-6). So then it was back to case-by-case review. For MIM it is back to why communism is the only real solution -- an elimination of the causes of violence. Individualists have taken on an impossible job -- determining individual consent in sexual relations case-by-case.

In arguing for "sexual autonomy" as a humyn right, Schulhofer derives much inspiration from looking at sex as a type of property. He argues that theft of wallets is more protected against by the law than theft of sexual autonomy (p. 13).

MIM considered this idea of rape as theft in place of the idea that all sex is rape. We rejected it almost a decade before this book and Schulhofer's flawed analogies do nothing to persuade us to further build the police-state of Amerikkka.

As a matter of fact, if someone chops off a body part of another persyn, that in itself is evidence like losing a wallet. There is no failure in seeing the body as the same as a wallet within the existing legal system. What happens in contract negotiations between business partners -- that is more like the situation of rape in the United $tates. The problem lies in determining whether a transaction was lawful or not or whether it involved extortion. Just as courts are filled with difficulties determining whether contracts have been met or existed in the first place, so too rape is a question of examining something that could be "mutual" or could be illegal by Liberal ideas.

Schulhofer does admit that some court cases and laws have gone too far in the paternalist direction of over-regulation and thus treating wimmin as permanently frail victims. Yet he considers a simple answer consistent with his own property type arguments and he rejects it -- consent forms. He admits that defense lawyers in some situations are being forced to prove consent, instead of prosecutors having to prove guilt. In one particularly backward case, a court used the "crush" of the accuser on the accused and the romantic setting as evidence of the alleged rapist's guilt (p. 92). It just goes to show that courts mired in Liberal individualism do not apply any consistent logic except that which happens to serve the ruling class. Spreading confusion case-by-case guarantees that the public will never come to a common understanding. Such division benefits the patriarchy and ensures its survival.

Schulhofer ridiculed the idea of requiring signed consent forms for sex, presumably because they would inconvenience the majority and break up spontaneity. In the name of spontaneity and subjectivity, Schulhofer goes so far as wanting the public to adopt universal ideas of "body language" (p. 272), in cases where the word "yes" can't be obtained. We can just see all the lawyers' bucks that will be made on that one!

From MIM's point of view, the rejection of consent forms is typical of what is wrong with people lacking a collective spirit. We see no reason why some people should suffer the trauma of rape or unjust conviction just because the allegedly normal and free majority would be inconvenienced by consent forms. It's obvious that within property-obsessed societies, consent forms are just one more type of contract. Hence we back this idea that Schulhofer considers extremist; even though we do not agree with the "rape as theft" line. We still think consent forms would be better and more consistent than what we have now.

Buy This Book

Back to bookstore Home page