ABSTRACT
Family law and intimate relations have long been central to feminist legal theory. Many first-generation feminist legal theorists wrote extensively about marriage, divorce, and child custody. Violence within intimate relationships has been a key concern for feminists inside and outside the legal discipline. The scholars in this section look to changes that have occurred in family law and continue to extend critiques of our current family law regime. Using the trope “the houses we enter” to mean “intimate relationships,
arrangements, and social practices,” Robin West explores the concept of “blanket consent” in intimate relations, asking why and how women give this form of consent to intimacy without recognizing the future risks or harms they may incur. The chapter begins with a brief look at the traditional or prototypical marriage emanating from the nineteenth century into the twentieth. Under this regime, a woman who married gave blanket consent to a number of things. The concept of marital privacy supported the fiction that marriage was harmonious and that it fulfilled women’s role as wife to submit to her husband sexually and to reproductivity. A woman’s consent to marriage was blanket consent to all future sex, consensual or not, desired or not, and any resulting pregnancies, as well as associated maternal care. Contemporary views of marriage or quasi-marital sexual relationships may
contain traces of this prototypical marriage arrangement. West argues that contemporary women’s consent to intimacy is still often seen as blanketed in or outside of marriage. In particular, West examines the contemporary college dormitory, where resident women are seen as giving “blanket consent” to sex. Sociological data show that dorms are sites of intense sexual activity, some of it nonconsensual and a good deal of it consensual but unwanted. She suggests that this happens first because sex is seen as inevitable and desirable; partners don’t consult own desires but instead the cultural norms encouraging and celebrating sex as natural/healthy. Second, because of the perception of blanket consent by entering dormitories, the fact that women may not actually desire sex in a particular instance is of little consequence. West sees similarities between marriage and dorm life. Rape is illegal, but not strongly deterred or punished. If women don’t desire sex, the problem is understood to be a “psychological”
issue that doesn’t mesh with current social norms regarding the inevitably and desirability of sex. West admonishes feminist legal scholars to pay attention to the lives of women
and commends the feminist counselors, clergy, administrators, and dormitory staff who listen to what university women are telling them about those lives. She encourages academic feminists also to listen to the women in their classrooms, to teach them about desire-that listening to one’s own desires is essential, that it is both personal and political. Laura Kessler’s chapter explores the impact on family law of the de-centering
of marriage as family law’s central focus and tensions surrounding the displacement of marriage, and she makes predictions about the future of family law. Using the metaphor of the “frontier” allows Kessler to demonstrate how new family law scholarship is at the margins of a “developing territory,” one ripe for exploration. In the new frontier scholarship, marriage is not the privileged site of intimacy; rather attention is focused on sexuality, reproduction, and caregiving. We see a shift from an older feminist preoccupation with inequality within marriage to concern about legal inequality between various forms of intimate relations. Considering what the future holds for family law, Kessler offers some possi-
bilities: (1) family law will disappear or substantially recede, as it is disconnected from its traditional “channeling” purpose; (2) family law will become a more general law of intimacy, which she sees has already occurred to a certain extent as evidenced by subjects taught in family law courses; (3) family law will endure, as there is resistance to its entire disappearance, especially by those committed to the patriarchal, marital family. Kessler concludes that the exploration of “alternative conceptual possibilities for studying sexual and intimate relations” will be beneficial. Twilia Perry draws our attention to racial hierarchies that exist between
women, how these hierarchies play out in family law, and some of the obstacles women face in openly talking about them. Perry contends that the existence of a racial hierarchy among woman has been “undertheorized” in feminist legal theory. Her chapter briefly considers the background of the feminist legal theory and the critical race feminism movements and their work to improve the lives of women. Perry then discusses her own entry into both of these arenas of study. Perry forcefully argues that black women are at the bottom rung of an
American racial hierarchy and that feminists must understand this hierarchy in order to better understand our cultural institutions, groups, and relationships. Gender hierarchies between men and women are often softened by the inevitable social relationships that exist between the two groups. However, far less interaction exists between blacks and whites to soften the racial hierarchy between these groups. As a consequence, talking about race across racial lines can be very difficult for women, particularly when the discussion is about issues of intimacy, family, and caretaking.
