Though it may seem like an obvious analogy, a comparison of consent to sex and consent to contract has rarely been explored in such detail. The legal concepts protecting bargainers to a contract can be applied to analyses of sexual coercion in consent to sexual encounters, thereby affording survivors with greater protection against instances of sexual violence that seem to consistently slip through the cracks of our criminal justice system. More importantly, this analysis has never before been applied to the Title IX campus sexual assault adjudication process and policies. As a procedure involving civil law, rather than criminal law, and arising from a university’s funding contract with the government, campus rape adjudications would be the perfect venue to implement what I call the “enlightened contract doctrine.” This is where various contract doctrines are expanded to recognize systemic inequalities in a sexual encounter, thereby affording greater protection to individuals with inherently weaker “bargaining power” on college campuses.
This Note also uniquely frames the limitations of sexual consent contracts using Carol Pateman’s analysis in “The Sexual Contract.” Patememan’s analysis explicates the challenges of bargaining power and freedom of contract for women, due to the fact that we exist within an overarching social contract (a la Locke, Hobbes, Mill, and Rousseau) that excludes female interests and active female participation from society. It explores what adequate sexual experiences might look like if our desires were freed from patriarchal pressures, and what consent laws would look like should they be informed by these untainted desires and cognizant of gender-specific notions of harm. Finally, this Note translates this exploration into a policy suggestion—how can we alter consent standards to foster a legal culture that reflects the sex we want to have and the ways in which to ask for it?
Kelly Jo Popkin,
Meeting of the Minds and Bodies: Contract Law and the Mutuality of Sexual Exchanges,
DePaul J. Women, Gender & L.
Available at: https://via.library.depaul.edu/jwgl/vol6/iss2/1