Argument #2

I found the following in this Al-Jazeera English article; it was not the main point of the article, but I’m using it to demonstrate that these sorts of things arise all the time and are in everything.  These ideas are unavoidable; they should be expected, and should be dealt with as something expected.

I know that this discusses policy from a long time ago, but should I really have to feel lucky that I am not subject to this?  If it’s your right, you shouldn’t have feel lucky, you shouldn’t have to beg and you shouldn’t have to thank anyone.  That anyone would dismiss this as something irrelevant from a long time ago says that they have a narrow-minded and egotistical belief that their generation is different from all other generations, and that they do not see reflections of this same thought lurking in their peers (author Corey Robin points out how similar this sounds to current rhetoric on consent); the situation is tenuous at best.  Instead of pretending like things have changed so I can boost the ego of my male peers about how generous they are for not stealing from me, I will acknowledge this reality and continue to work with it in the best way I know how: whoring.

“Until 1980, for example, it was legal in every state in the union for a husband to rape his wife. The justification for this dates back to a 1736 treatise by English jurist Matthew Hale. When a woman marries, Hale argued, she implicitly agrees to give “up herself in this kind [sexually] unto her husband”.1 Hers is a tacit, if unknowing, consent “which she cannot retract” for the duration of their union. Having once said yes, she can never say no.

As late as 1957 – during the era of the Warren Court – a standard legal treatise could state, “A man does not commit rape by having sexual intercourse with his lawful wife, even if he does so by force and against her will”. If a woman (or man) tried to write into the marriage contract a requirement that express consent had to be given in order for sex to proceed, judges were bound by common law to ignore or override it.2

Implicit consent was a structural feature of the contract that neither party could alter. With the exit option of divorce not widely available3 until the second half of the twentieth century, the marriage contract doomed women to be the sexual servants of their husbands.”

1.  I agree that if a woman enters into a sexual relationship with a man, especially one that is expected to be monogamous, it is part of her responsibility to give him sex, or else let him go to another woman (temporarily, or permanently through divorce).  But if a wife has not freely consented to her marriage contract this responsibility does not stand.  People readily ignore this need for true consent in order to obligate women into being poorly-compensated whores.  Marriage contracts that require sex can only be validated by the existence of divorce, the possibility of short-term agreements, and the option to stay single.

2.  If prostitution were legal (decriminalized), people could write these types of contracts and they would have to be recognized as all contracts are.

3.  See 1.


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