Hanna: "Rethinking Consent in a 'Big Love' Way"

Cheryl Hanna (Vermont Law School) has posted Rethinking Consent in a 'Big Love' Way, Michigan Journal of Gender & Law (forthcoming), on SSRN.  Here is the abstract:

This paper is a working draft of an article that will be published in the MIchigan Jornal of Gender and Law as part of their symposium Rhetoric & Relevance: An Investigation into the Present & Future of Feminist Legal Theory. In it, I explore the problem of categorical exclusions to the consent doctrine in private intimate relationships through the lens of the HBO series Big Love, which is about modern polygamy. There remains the normative question both after Lawrence v. Texas and in feminist legal theory of under what circumstances individuals should be able to consent to activity that takes place within the context of a private, intimate relationship. These tensions between individual autonomy and state interests are beautifully explored in Big Love. Drawing on themes presented in the series, this paper asks if there is any principled way to make the distinction among those relationships in which there is some physical or psychological harm inflicted and those in which the state has proscribed a relationship because of some moral or social harm it allegedly causes. There are four case studies presented to prompt readers to try to answer the question of when consent should be a defense to otherwise proscribed activity. I conclude that the future of feminist legal theory depends on its ability to remain ambivalent about the tensions presented in the consent doctrine as applied to contexts such as polygamy, prostitution, sadomasochistic sex, obscenity, and domestic violence. Big Love seeks to persuade us to accept ambivalence and to be open to changing our minds because of the complicated nature of women’s (and men’s) lives; feminist legal theory ought to persuade us to do the same.

MR