If the presumption of the hypothetical fistee is ableist, the presumption of the complainants, juries and judges that masculine-presenting intimate partners have a penis is heteronormative (and the convictions are transphobic). One might reasonably expect her masculine-presenting partner to be penis-bearing. But if that expectation is unmet, the state should not thereby prosecute that partner for rape. Consider a partner with an unforgivingly large, disappointingly small or stubbornly flaccid penis. Here too expectations have been unmet, but no crime is committed.[...]
Second, it is important to understand that some questions are or should be unanswerable as legal truth claims. When it comes to sex, there should be no legally actionable way to answer the question: ‘Are you a man?’ Is gender a matter of genitals, hormones, chromosomes, secondary sex characteristics, social inequality or self-identification? The law cannot bring any clear answer to this question. One should not be convicted of sexual assault for failing to live up to a phallocentric standard of manhood.[...]
As for applicability: many people suppose that sex with nonhuman animals is wrong because animals cannot consent. But are animals really the kinds of creatures capable of consenting? Can Fido ‘consent’ or not to fetch? If you do believe animals such as cows can proffer consent, I would wager they are less likely to consent to becoming a cheeseburger than to sex.
No comments:
Post a Comment