RAPE AND THE REASONABLE MAN?

Abstract

ABSTRACT. Standards of reasonability play an important role in some of the most difficult cases of rape. In recent years, the notion of the “reasonable person ” has supplanted the historical concept of the “reasonable man ” as the test of reasonability. Contemporary feminist critics like Catharine MacKinnon and Kim Lane Scheppele have challenged the notion of the reasonable person on the grounds that reasonability standards are “gendered to the ground ” and so, in prac-tice, the reasonable person is just the reasonable man in a gender neutral guise. These critics call for the explicit employment of a “reasonable woman ” standard for application to the actions of female victims of rape. But the arguments for abandoning a gender-neutral standard are double-edged and the employment of gendered standards of reasonability is likely to have implications that are neither foreseen by, nor acceptable to, advocates of such standards. Reasonable agent standards can be dropped, in favor of appeals to the notion of a “reasonable demand (or expectation) ” by the law. However, if reasonable agent standards are to be retained, gendered versions of such standards are not preferable to gender-neutral ones. The essential difference between rape and ordinary sexual inter-course, we believe, is the presence of consent: the latter is consented to, the former not. This view is not uncontroversial; not all states define ‘rape ’ in terms of non-consensual sexual contact and not all commentators agree that they should.1 In what follows, we will assume, rather than argue for, the view that rape is to be defined in terms of non-consensual sexual intercourse.2 For purposes of this paper, then, it is definitionally true that rape requires non-? For very helpful comments on earlier versions of this paper, we are grateful

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