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Pineau is not trying to argue that date rape is wrong: she is taking this for granted. Rather, her aim is to show that the legal procedure for judging accusations of date rape are biased against the victim of the rape. She argues that the process is biased because it makes assumptions about the nature of sex, and the differences between male and female sexuality, which are totally wrong. To put her argument in a nutshell, she is saying that the law implicitly assumes women want to be raped and lead men on to it.
Pineau starts off giving a definition of date rape: nonconsensual sex that does not involve physical injury. (p. 464). She uses legal terms: actus reas and mens rea. This terminology is Latin: the distinction means that it is not enough, in the eyes of the law, for the woman to refuse to give consent to the sex. The law requires that the man knew she was not consenting, i.e., he had a criminal intention to rape, which is the mens rea. She immediately goes on to point out that a court is less likely to believe a man who says he thought the woman was consenting if it would be unreasonable or irrational to form that belief in the circumstances, judging from what the woman did and said. Similarly, the court is more likely to believe the man's claim if it thinks that it would be reasonable to form such a belief in the circumstances. (p. 464-5).
Pineau says that now (the article was written in 1989) there is very little legal protection from sexual assault for a woman on a casual date with a stranger. This is partly because it is very hard to corroborate the woman's claims that she did not give consent. But even when it is agreed that the woman protested and resisted sex, the courts often do not interpret this as the woman actually withholding consent to sex. (p. 465). For instance, she quotes a standard law textbook which says that when the man is previously known to the woman, she must make use of "all means available to her to repel the man." The textbook author's claim is that when a woman merely says "no" she really means "yes." I.e., he thinks the woman's protests are most likely just a matter of pretense. (p. 466). This makes it virtually impossible to prove in court that the man is guilty. The standard of proof required is "beyond a reasonable doubt" which is the strongest requirement that courts make. Other levels of proof are: clear and convincing evidence, and preponderance of evidence. Pineau will argue that a better understanding of sexuality would make the judicial system fairer for women.
Pineau says that the most common defense given by men accused of sexual assault is that 'she asked for it.' (p. 466). She aims to spell out the underlying assumptions that make this a possible defense. The assumption that she disagrees with is: "If women should not be sexually provocative, then, from this standpoint, a woman who is sexually provocative deserves to suffer the consequences." (p. 467). On this view she is criticizing, when a woman behaves in a sexually teasing, tempting or open way, she is implicitly committing herself to having sex with the man she is with. She is entering into a non-verbal contract to have sex, which she is not entitled to break. The reason this contract is binding is that it is unreasonable to expect a man who has been sufficiently aroused, to respect any subsequent verbal or even physical protestations. The man's sexual need becomes uncontrollable and no longer negotiable. On the other hand women are always in control of their sexual behavior, so naturally, (on the view being spelt out), it is their responsibility to control it. As Pineau succinctly puts it, one does not go into the lion's den and expect not to be eaten. (p. 467).
Furthermore, according to this myth, as she calls it, women actually want to be raped, because it gives them a way to have sexual experience without ever admitting that they actually wanted it, and so they can still conform to the social expectation that they should not pursue sex without love. On this view, women actually enjoy being raped. So when they say 'no' they mean 'yes.' (pp. 467-8).
Of course Pineau completely disagrees with the assumptions about male and female sexuality that are made in this justification of date rape, and suggests that women should be able to be provocative without fearing assault. She points out the absurdity of the myth, saying that if women want sexual pleasure, they are not going to get it through getting themselves raped. She also spends some time carefully arguing against the assumptions that might provide a justification for date rape.
She starts off considering the idea that a woman can contractually bind herself to having sex with a man by being provocative. She points out that in the rest of life, making a contract requires that both people enter freely into it, know what they are doing, and have time to reflect on it. (p. 469). The terms of the contract are either explicitly written out or are defined by a well known tradition. Should a contract be made, and then broken, the only permissible recourse is to go through due legal process. In a dating situation, is there a tradition whereby the woman owes the man sex once he has spent enough money on her and she has flirted with him a certain amount? Are there any 'set rules' of dating which imply that once certain conditions have been fulfilled, the couple will then have sex?
This discussion raises the interesting question whether there can ever be a binding sexual contract between two people. But Pineau does not dwell on this question, since even if there could be such a contract, it could never be legally enforced. At most, a court could order the person who broke the contract to provide non-sexual compensation. (p. 469) Even if a woman consents to sex, she has no obligation to continue with sexual activity if she changes her mind. Consider: is the obligation that Pineau talks about a legal one, or a moral one? If a woman does explicitly or implicitly promise sex to a man, does she have any moral obligation to carry out her promise?
Pineau also spends time criticizing the assumption that men's sexual desire becomes uncontrollable past a certain point in the process. She says that virtually all of our sexual behavior is controllable. (p. 469). What evidence does she cite for this? Is it possible for anyone to have a literally uncontrollable sexual urge?
Pineau suggests that when pressure and force are used in sex, a woman is not likely to enjoy it. (p. 470). Different people have different ways of enjoying sex, and a woman is not likely to be given pleasure by a man if he makes no effort to find out what pleases her. Therefore, she concludes, when is engaging in an aggressive seduction, the woman is not likely to enjoy it. This provides evidence that women are not likely to freely agree to sex when the man has pressured the woman into it. "Where the kind of sex involved is not the sort of sex we would expect a woman to like, the burden of proof should not be on the woman to show that she did not consent, but on the defendant to show that contrary to every reasonable expectation she did consent." (p. 470) Pineau gives a useful summary of her argument at the end of p. 470. Make sure you know it.
The next part of the article is an exploration of the nature of the dating relationship. Pineau says that it is "more like friendship than the cutthroat competition of opposing teams." (p. 472). How does she justify this claim?
On pp. 472-3, Pineau builds an argument with a strong conclusion: even when a woman acquiesces to aggressive noncommunicative sex under pressure, she should not be seen as having consented to it. The myth she is arguing against says that when a woman says 'no', she means 'yes.' Pineau is saying that even when a woman goes though with sex without explicit protest and refusal, she may not have consented to it. So on her view, even that would count as rape. On Pineau's view, what are the minimum conditions required for us to know that a woman has consented to sex?
The final conclusion of the article is this: "All that is needed then, in order to provide women with legal protection from 'date rape' is to make both reckless indifference and willful ignorance a sufficient condition of mens rea and to make a communicative sexuality the accepted norm of sex to which a reasonable woman would agree." (p. 473). Pineau spends the preceding few pages leading up to this. What is communicative sexuality and why does she think this should be the norm?
