No CrossRef data available.
Article contents
Commodification and Phenomenology: Evading Consent in Theory Regarding Rape
Published online by Cambridge University Press: 16 February 2009
Abstract
In a recent essay, Donald Dripps advanced what he calls a “commodification theory” of rape, offered as an alternative to understanding rape in terms of lack of consent. Under the “commodification theory,” rape is understood as the expropriation of sexual services, i.e., obtaining sex through “illegitimate” means. One aim of Dripps's effort was to show the inadequacy of consent approaches to understanding rape. Robin West, while accepting Dripps's critique of consent theories, criticizes Dripps's commodification approach. In its place, West suggests a more phenomenological approach.
The author argues that (1) neither Dripps nor West offers convincing critiques of consent-based theories; (2) the alternatives they offer presuppose the vitality of a consent-based approach to understanding rape; and (3) that both Dripps and West consistently conflate more general moral and political issues with that of the nature of rape.
- Type
- Articles
- Information
- Copyright
- Copyright © Cambridge University Press 1996
References
1. Real Rape, 1987.Google Scholar
2. More specifically, sexual services as property interests. Dripps, D.A., Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent, 92 Colum. L. Rev. 1780, 1786 (1992) (“Dripps”).CrossRefGoogle Scholar
3. Id.
4. There is a non sequitur in the leap from identification of rape with sexual appropriation to a focus on perpetrator states of mind. Dripps seems to assume that expropriation entails intentional states with respect to the expropriation itself. It doesn't. One may expropriate another's property without knowing (or forming similar intentional states with respect to) the property as the other's.
5. Id. at 1803.
6. Id. at 1797, 1799, 1807.
7. Id. at 1787, 1793–94.
8. Id. at 1787.
9. Id.
10. Id. at 1788.
11. Id. at 1788–89.
12. Id. at 1789.
13. Id. at 1791.
14. Id. at 1788–89.
15. Id. at 1789.
16. Id. at 1799.
17. Id. at 1793.
18. Id.
19. Id. at 1799.
20. Id. at 1792–94.
21. Id. at 1794, 1801.
22. Id. at 1792.
23. Id.
24. Id. at 1789.
25. Id.
26. Id.
27. West, R., Legitimating the Illegitimate: A Comment on Beyond Rape 93 Colum. L. Rev. 1442, 1446 (1993) (“West”).CrossRefGoogle Scholar
28. Id. at 1447.
29. Id. at 1446
30. Id. at 1448.
31. Id.
32. Id.
33. Id.
34. Id. at 1449.
35. Id. at 1451.
36. Id.
37. Id.
38. Id. at 1449.
39. Here, as in a number of other works, West's work reminds me of Max Scheler's phenomenology.
40. Id. at 1443.
41. Id. at 1448–49.
42. Id. at 1452.
43. Id. at 1458.
44. Id. at 1452, 1458.
45. Id. at 1458.
46. Dripps, at 1788.Google Scholar
47. Dripps, at 1785.Google Scholar
48. The paucity of imagination in Dripps's exposition reflects a limitation in thought. Just as his view of sex is stilted and narrow, so too is his conceptualization of autonomy, rights, and responsibility.
49. Dripps, at 1789; West at 1443.Google Scholar
50. Dripps, , Reply to Professor West, 93 Colum. L. Rev. 1464 (1993).Google Scholar
51. West at 1453
52. Dripps, at 1788.Google Scholar
53. Dripps, at 1807.Google Scholar
54. Dripps seems to think that there is a failure of consent only when there is a refusal of consent
55. Cf. West at 1450–51 with Dripps, at 1802–03.Google Scholar
56. Dripps, at 1801.Google Scholar
57. West at 1452–53; Dripps, at 1791.Google Scholar
58. Dripps, at 1781.Google Scholar The discussion of causality otherwise seems pointless.
59. Dripps, at 1791.Google Scholar
60. I find this an odd locution, as “sex with” may suggest a cooperative activity. In this case, it may be accurate to say “sex on” or “sex in” W; but this usage may not be proper English.
61. For an example of such a theory, see Bogart, J.H., Reconsidering Rape: Rethinking the Conceptual Foundations of Rape Law, 8 Can. J. Law and Jurisprudence 159 (1995).CrossRefGoogle Scholar