Emory Law Journal


The need for institutional reform to address the problem of sexual assault, particularly on college campuses, is widely acknowledged. In the midst of increasing moves on campus to codify affirmative consent standards (¿yes means yes¿), rape law remains mired in an archaic view of consent as rather beside the point. This Article recasts the significance of law¿s preoccupation with force by introducing a taxonomy of cases in which force and non-consent tend to diverge. The no-force/no-consent cases raise a question critical to ongoing reform efforts: does the absence of consent make sex rape? Outside of law, this inquiry has for the most part been resolved; what remains is to reconcile competing interpretations of consent¿s meaning. In stark contrast, the criminal justice system¿s treatment of nonstranger rape reflects a doctrine woefully out of step with modern conceptions of sex. Sexual agency provides the theoretical underpinning needed to close this gap.