Sexual Autonomy and Law

DOIhttp://doi.org/10.1111/1468-2230.00322
Date01 March 2001
Published date01 March 2001
REVIEW ARTICLE
Sexual Autonomy and Law
Mary Childs*
Stephen Schulhofer,Unwanted Sex: The Culture of Intimidation and the
Failure of Law, Cambridge, Mass. and London: Harvard University Press, 1998,
xii + 318 pp, hb £17.50.
One striking development of Anglo-American law in the late twentieth century was
the intensification of debate regarding legal regulation of sexual conduct. In
England, as in other jurisdictions, there was considerable public discussion about
the scope and application of laws addressing rape, pornography, prostitution,
sexual assault, child sexual abuse and sexual harassment. Some of this debate was
instigated by feminists who challenged the split between public and private realms,
and who argued that sexual exploitation and coercion were just as much matters for
legal regulation as were the presence of coercion or undue influence in matters
relating to property rights. The increasing presence of women in formerly male
environments has given rise to a greater awareness of the problematic overlap of
professional and sexual relationships, and greater awareness of child sexual abuse
has contributed to increased concern about the dangers of power misused for
sexual purposes. Numerous social phenomena have given rise to new concerns and
new calls for legal responses: fear of AIDS, advances in reproductive and
contraceptive technology and the increasing political activism of sexual minorities.
Sexual matters are now of public concern and debate, and the parameters of the
interface of law and sexuality are highly contested. In England, recent years have
seen changes in the law of rape, high-profile prosecutions for sexual offences
relating to children, registration of sex offenders, legal battles over the rights of
transsexuals and same-sex couples, and the defeat and reintroduction of a Bill
which would have criminalised sexual relations between teenagers and adult
carers, while equalising the ages of consent for same-sex and heterosexual sex.
Most recently, the Home Office has published ‘Setting the Boundaries’,1the
lengthy and detailed report of a review of sex offences announced in January 1999.
An appendix to that document contains a Law Commission Report entitled
‘Consent in Sex Offences’.2This draws upon and adds to the previous work of the
Commission on consent in the criminal law, although unfortunately it largely
overlooks the growing body of jurisprudential and philosophical writing on sexual
behaviour and the role of consent.3
ßThe Modern Law Review Limited 2001 (MLR 64:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 309
* School of Law, University of Manchester.
1 Available on the Home Office website at: http://www.homeoffice.gov.uk/atoz/sex_offence.htm
2 Available at: http://www.lawcom.gov.uk
3
See, among others, D. Dripps, ‘Beyond Rape: An Essay on the Difference between the Presence of
Force and the Absence of Consent’ (1992) 92 Columbia LR 1780; M. Chamallas, ‘Consent, Equality
and the Legal Control of Sexual Conduct’ (1988) 61 S Cal LR 777; N. Lacey ‘Unspeakable Subjects,
Impossible Rights: Sexuality, Integrity and Criminal Law’ (1998) 11 Canadian Journal of Law and
Jurisprudence 47; N. Naffine, ‘Possession: Erotic Love in the Law of Rape’ (1994) 57 MLR 10; and the
two special issues on ‘Sex and Consent’ (1996) 2 Legal Theory.

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