Research Handbook on Feminist Jurisprudence
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Research Handbook on Feminist Jurisprudence

Edited by Robin West and Cynthia G. Bowman

The Research Handbook on Feminist Jurisprudence surveys feminist theoretical understandings of law, including liberal and radical feminism, as well as socialist, relational, intersectional, post-modern, and pro-sex and queer feminist legal theories.
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Chapter 9: Sexual agency and the unfinished work of rape law reform

Deborah Tuerkheimer

Abstract

For half a century, feminist legal scholars and activists have worked to reconstruct the retrograde foundations of rape law. In place of chastity protection, I argue that sexual agency underpins the modern law of rape. I begin by describing the construct of sexual agency, emphasizing how feminist insights have enriched the familiar ideal of autonomy in ways that bear directly on sexual violence. I then apply the theory of sexual agency to three areas of relatively successful law reform efforts – substantive, evidentiary and procedural. I also consider the limits of rape law’s progress, again by reference to sexual agency. The agency frame recasts how a set of necessary reforms has fallen short of its intended target. I consider one final challenge to women’s agency that has become increasingly salient in the current #MeToo moment – acquiesced-to (unwanted consensual) sex. I conclude that, while the promise of female sexual agency remains unfulfilled, it should endure as the desideratum of reform.

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