 Woman
Responsible
for Sex Acts:
Film at 11
by
Wendy McElroy
Last
Friday, the Nebraska Supreme Court ruled that Judy Iwanski could
not sue her gynecologist and employer for having sex with her or
for the suicidal urges caused when Dr. William Gomes terminated
their sexual relationship. Once jilted, Iwanski had sued Gomes in
District Court. When the decision did not go her way, Iwanski then
appealed to the Supreme Court, which affirmed the lower court. In
doing so, Supreme Court Judge Gerrard stated, "Not only does
Iwanski’s own testimony indicate that she was able to consent, but
also that Iwanski was aware of the decisions she was making..."
The
decisions Iwanski made included having sex in Gomes’ van at a truck
stop, post-PAP smear intercourse, having sex in the office during
work hours, and repeated refusals to have sex when she wasn’t in
the mood...all over an eight-year period. Yet Iwanski claimed she
had been unable to render true consent "due to the pressures
exerted on her by the surrounding circumstances." Gerrard pointed
to the fact that she had often withheld consent as evidence that
she could do so.
Mainstream
and radical feminists are almost certain to view the legal decision
as a setback for women. There is great irony in this. In the 19th
century, women fought diligently for the right to consent and to
be held legally responsible for doing so, especially by entering
into their own contracts. In her essay entitled "Legal Disabilities
of Women" – a famous plea to have women’s consent taken seriously – the
individualist feminist Sarah Grimke compared the legal status of
married women to that of slaves. She wrote, "All contracts
made with her, like those made with slaves by their owners, are
a mere nullity."
Grimke
did not want women be taken seriously only when it was to their
legal advantage. She wanted women to bear legal responsibility for
their bad acts as well. For example, she decried a law that stated,
"A wife is excused from punishment for theft committed in the
presence, or by the command of her husband." Grimke considered
this law to "destroy the responsibility of woman as a moral
being, or a free agent....[S]he may break the eighth commandment
with impunity, as far as human laws are concerned." Such pioneering
feminists struggled not only for women’s rights but also for women’s
responsibilities so that their sex could stand erect and equal with
men. They would be appalled by the attack on women’s responsibility
that has been led by feminism in the last two decades.
Radical
feminism has declared repeatedly that intelligent adult women are
incapable of rendering consent for one reason or another. Pornography
has been labeled "violence against women" regardless of
whether the women involved willing pose for and consume it. In her
book "Surviving Sexual Violence," Liz Kelly offers a typical
definition, "Sexual violence includes any physical, visual,
verbal or sexual act that is experienced by the woman or girl, at
the time or later, as a threat, invasion or assault, that
has the effect of hurting her or degrading her and/or takes away
her ability to control intimate contact."[Emphasis added] In
other words, the woman can say ‘yes,’ then later change her mind
and nullify the consent. Prostitutes are all abused women who have
lost the capacity to make a healthy choice.
In
the feminist attack on surrogacy, a key element has been a contention
that the surrogate mother’s contract is invalid. In general, the
feminist case against surrogate contracts rests largely on two arguments:
the woman is selling herself into a form of slavery and this invalidates
any contract; and, the woman cannot give informed consent because
she does not know how she will feel later about the child.
1) The
woman is selling herself into slavery. But there is no difference
in kind between a woman ‘renting’ her womb and doing the same
with other parts of her body. A physical therapist rents her
hands and a lawyer rents her brain. So what constitutes slavery?
An
essential aspect of slavery is alienation of the will. That
is, a person sells not only the use of her body but also her
moral and legal jurisdiction over it. This is the difference
in kind between a slave and a wage earner. A slave transfers
her self-ownership to another person, whereas a wage earner
temporarily rents out an aspect of herself. Clearly, a surrogate
mother does not surrender the moral and legal jurisdiction over
her own body. This is clear from the fact that she is not deprived
of the right to breach the contract and pay penalties for doing
so. The real problem with surrogate contacts is not that they
constitute slavery but that the partial rights being temporarily
relinquished and the consequences of a breach are usually ill
defined.
2) The
surrogate mother cannot give informed consent because she does
not know how she will feel in the future. This is not an attack
on surrogacy so much as the negation of the possibility of contracting
itself, since a similar statement could be made about almost
every contract. If I sell my family home, for example, I do
not know how much I will miss the memories it holds until later.
If I agree to paint a portrait, I do not know how emotionally
attached I will become to the work until it is finished. If
I agree to mow a lawn on Saturday, I do not know how personally
important free time might be to me until Saturday rolls along.
To say that I am able to breach a contract with impunity simply
because I have second thoughts is, in essence, to make the act
of contracting impossible.
If
women cannot be bound by consent and contract – if they cannot
legally assume the rights and responsibilities of being taken
seriously – then radical feminists will have returned them to
the status of slave from which they claim to be rescuing them.
It is enough to make a self-respecting woman long to erase the
last century of feminist theory and return to the day of Sarah
Grimke and her sister Angelina.
In
her essay "Human Rights not Founded on Sex," Angelina
proclaimed, "Human beings have rights, because they are
moral beings....Now if rights are founded in the nature of our
moral being, then the mere circumstance of sex does not give
to man higher rights and responsibilities, than to woman. When
human beings are regarded as moral beings, sex, instead of being
enthroned upon the summit, administering upon rights and responsibilities,
sinks into insignificance and nothingness....My doctrine then
is, that whatever it is morally right for man to do, it is morally
right for woman to do."
And,
as the logical corollary that 19th century individualist
feminists eagerly willingly embraced, whatever it is morally improper
for a man to do, it is improper for a woman to do. This includes,
first and foremost, denying responsibility for actions willingly
taken.
June
15, 2000
Wendy
McElroy is author of The
Reasonable Woman. See more of her work at ifeminists.com
and at her personal website.
Wendy
McElroy Archives
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