Forthcoming, S. Cal. L. Rev., Vol. 78, 101.


“Negotiating Sex” is a response to the two major proposals for rape law reform in legal scholarship today, as well as a proposal for a third way. Susan Estrich and Donald Dripps argue that sexual penetration should be legal unless the victim expresses her non-consent, a proposal I call the “No Model.” Stephen Schulhofer argues that sexual penetration should be illegal unless the defendant obtains affirmative consent for penetration through the victim’s words or conduct, a proposal I call the “Yes Model.” Under this model, according to Schulhofer, if a woman does not say “no,” and “her silence is combined with passionate kissing, hugging, and sexual touching,” one may “infer actual willingness” based on her nonverbal conduct.

Both the No and the Yes Models of rape law reform fail to account for important empirical realities. First, the lived experience of sexual trauma often includes physical paralysis and mental dissociation, which cut a victim off from her ability to object to penetration. Second, men often misinterpret women’s body language, seeing erotic innuendo and sexual intent where there is none, which impedes their ability to surmise consent accurately. Third, people often substitute sexual petting for penetration as a way to limit the health risks of sexually transmitted diseases and pregnancy posed by penetration. It makes no sense, therefore, to “infer” consent to penetration from “passionate kissing, hugging, and sexual touching.”

I propose that rape law abandon the notion of consent. In its place, the law should require negotiation—conversation and mutual agreement—between partners before sexual penetration occurs. Negotiation would require a communicative exchange about whether partners want to engage in sexual intercourse. The Negotiation Model requires communication that is verbal unless partners have established a context between them in which they may accurately assess one another’s nonverbal behavior. The verbal communication must be such as would indicate to a reasonable person that sexual penetration has been freely and explicitly agreed to.


Criminal Law | Criminal Procedure | Sexuality and the Law

Date of this Version

August 2005