Prof. Catharine McKinnon: Rape Redefined:
(Scroll right down to see the piece) McKinnon has a useful perspective on the issue of consent and why it is out of step with rape and assault laws.
6. Consent definitions – in which the prosecution has to prove nonconsent – require a woman be believed concerning a sexual fact that is by its nature subjective. This is why it puts the victim on trial. Essentially, it attributes victimization to the victimized. It makes the case be about what she was thinking, or what he thought she was thinking, rather than about what he did. It makes rape occur in someone’s mind, not by his body on her body.
7. It is therefore no surprise that, in legal application, consent has been found when women are married, drunk or drugged, repeatedly said no, were asleep, comatose, just seen to be raped by several other men, threatened with deportation or false criminal charges or loss of her job. In legal operation, consent to sex is routinely found in situations of despairing acquiescence, frozen fright, terror, absence of realistic options, socially situated vulnerability, and even death. Prostituted sex is regarded as consensual because it is paid. All this is what consent actually means legally, not mistakes in what it legally means.
The often accompanying standard of mistaken belief in consent means that if the accused is found to have believed she consented, whether she did or not, it is not rape. In societies saturated with pornography, a lead pipe over the head can sincerely be believed to produce consent to sex. Further no surprise that “rough sex” is such an increasingly effective consent defense.
In other words, consent is often found in situations where considerable force was used, building into law the misogynistic assumption that women want to be forced into sex. This is the real meaning of requiring a showing of both force and nonconsent, as prevails in US state laws. The same assumptions tend to be attributed to a gay man when he claims another man raped him. He is feminized, reduced on a gendered basis.
If sex occurred, her consent is essentially presumed on the most minimal of acquaintance between the parties; the survivor has to disprove it. Socially speaking, if sex happened, or if a woman had ever had sex before, especially with the accused, consent is effectively assumed. She has to disprove it. It’s a social burden of proof women enter the law burdened by. Consent in law is consistent with economic, psychological, and hierarchical threats, so long as physical injury or life are not threatened (for which purpose rape itself is generally not considered a physical injury).
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8. Consent as a concept was never designed to apply between two people in civil society. It was given its current meaning in Western liberal philosophy, hence Western law, as the basis for legitimizing the obligation to obey the laws of the state. Even as a fiction.. it never envisioned equal parties. It exists to rationalize the exercise of dominant power (ie the state) over its subordinates (the governed). This is what it is for. Applied to sex, he is the government, she is the governed. Its purpose is to attribute and justify the requisite obedience of the powerless to the rule of the powerful. It is about compliance.
madamegandhi.blog/2014/10/28/sex-equality-with-professor-catharine-mackinnon/
Formal version of the Malmo address complete with references:
harvardlpr.com/wp-content/uploads/2016/06/10.2_6_MacKinnon.pdf