The Genesis story of Dinah and Shechem is often referred to as "the rape of Dinah." It is said that Shechem "defiled" Jacob's daughter, but some modern-day religious scholars such as Tikva Frymer-Kensky believe that the incident usually referred to as rape is actually simply a violation of cultural norms that surround the rights of the father in the early Israelite family. In Lacanian terms, it was not Dinah's body that Shechem violated, but the "Name of the Father" that was violated in Shechem's failure to obtain permission to marry Dinah from Jacob. The violation of cultural standards that occurred in Dinah's case is echoed in subsequent statutory rape law, which reflects later cultural ideas concerning the rights of young people over their bodies. A similar law is placed in later juridical history in the area of rape law that concerns mentally disabled individuals.
In the cultural norms surrounding Genesis, a daughter was the property of her father until she became the property of her husband.
However, the Mosaic and Levitical laws offered her special protection as a female. “A father could sell his son into slavery, but not his daughter” (Bible Status of Women 77). Before marriage, a father could negate his daughter’s vow of abstinence, providing that she was under the age of maturity (i.e., under twelve and a half years of age), still living in his home, and that the annulment of abstinence occurred immediately after she made the vow. “The power of a father to interdict his daughter’s vows ceased when she reached the age of twelve and a half years” (Bible Status of Women 81). Similarly, a husband had the power to interdict his wife’s vows, but with limitations. The interdiction had to be made the same day that the wife’s vow was made, and the husband’s ability to override his wife’s decision applied only to “the rash utterance of her lips” (Numbers 30:6, 8) and “an oath to afflict the soul” (Numbers 30:13).
Although marriage contracts have common features with slavery, a daughter over the age of twelve had a legal right to refuse a marriage set up by her father. Through the ketubah, or marriage contract, married women were provided for financially during the course of their lives. However, the ketubah was not the wife’s sole means of support. Rather, it functioned as insurance against divorce or widowhood (Bible Status of Women 86), serving the same function as modern-day prenuptial agreements and alimony.
The legal requirements surrounding marriage served to differentiate between the classes of women. Women of higher status had better luck in maintaining freedom from sexual assault because a high price was placed on their virginity. By having sex outside of a marriage recognized by the family, religious authority and the government, the value of the woman as a bride was severely decreased. When the rape of a woman of an upper-echelon family occurred, the head of the family, usually the father, could demand that the rapist either marry the woman, or pay a high bridal price to recoup the expected economic losses that would occur because no one would ever marry the raped woman. Occasionally, both marriage and a high bridal price were demanded, to protect the honor of the family.
In the case of Shechem, the Genesis story dictates that he was enraptured of Dinah and wanted her for his wife. Instead of going to her father, requesting permission, and paying the bridal price, Shechem approached her on his own. The language used in the story indicates that Dinah was a willing participant, since it differs from the Biblical and Talmudic accounts of rape. While some accounts include the phrase “lay with her by force,” the word used in this case is different from the word for rape. Frymer-Kensky writes, “…the key word, innâ, does not mean rape…The basic meaning is to treat someone improperly in a way that degrades or disgraces them by disregarding the proper treatment due to people in each status” (Gender and Law 86). Moreover, the placement of the word in relation to the word for ‘lay with’ indicates that the sex act was not by force. “Shechem did not rape Dinah, but he did wrong. From the Bible’s point of view, an unmarried girl’s consent does not make the sex a permissible act. She has, after all, no right of consent” (Gender and Law 87).
Clarke’s commentary on this chapter indicates that “the whole was an act of violence” (136), since consent had not been obtained. However, it was her father’s consent that Shechem needed to obtain, not Dinah’s. Therefore, according to Roman law, “Shechem’s act was not stumpa per vim, ‘wrongful intercourse by force,’ but it was certainly stumpa, ‘wrongful intercourse’” (Gender and Law 89). Dinah’s story becomes more complicated when an understanding of what the first paragraph of Genesis 34 means. Because Dinah “went out to visit the women of the region” without a defined purpose, her actions violated the cultural norms. During the time of the story, prostitutes were the only women who were commonly seen walking about without supervision. “The goddess Innana/Ishtar and the female demons and streetwalkers roam the streets; ‘proper’ women do not” (Gender and Law 86). Going “out” meant that Dinah was no longer under the protection of her father and brothers. Moreover, by going out alone, Dinah placed herself in the precarious social position of being associated with a prostitute who has no rights over her own body or its sovereignty. Frymer-Kensky writes, “An Old Babylonian word list identifies…’gadabout,’ wāsitum (literally, ‘goer-out’) with ‘harimtu,’ prostitute” (Gender and Law 86). Dinah’s “brethren,” that is, her family or clan, understand this distinction, and take revenge against Hamor specifically because Shechem has treated her “like a harlot.” Much like the women raped before the advent of rape shield laws, Dinah’s behavior can be used against her.
By going out alone, Dinah knew that she did not have the protection of her family, and she knew what kind of woman the strangers she met would take her for. Knowing this, her clan had to step forward to defend the honor of the women of their family, which, by extension, was their honor.
Mosaic law indicated that when a man desired a woman, he had to make her his wife. Moreover, if he “ravished a maiden or seduced her, he was compelled to make her his wife, if her father gave consent” (Bible Status of Women 96). In order to make Dinah his wife, Shechem would have had to go through the lengthy cultural requirements that governed marriage. By acquiring her through capture, Shechem “provided no dowry, no ketubah and her consent was not needed; no male relative stood on guard to protect her—they were either slain or defeated in battle; her captor was not required to leave his own tribe; genealogy was carried in the husband’s line; the wife had no control over her own person. In a word, she had no rights her captor was bound to respect. Her status was that of a sexual slave of her husband” (Bible Status of Women 72).
Lee Anna Starr later writes, “…wife-capture lowered the status of woman, and in time accomplished the degradation of the sex” (72). According to Tikva Fryner-Kensy, however, the main goal of wife-capture and marriage without paternal consent was to prove that the men whose women were captured were incapable of taking care of their women. “From Dinah’s point of view there is a very big difference if she had been raped. But from the point of view of the family, it may be even worse if the girl has consented rather than if she has been raped. If she has been raped, then Shechem has violated the integrity of the family, breached its boundaries, and left it without honor. But if Dinah has eloped, then Shechem has still transgressed the family’s boundaries, but, in addition, Dinah has not been faithful to Jacob’s right to control her sexuality and, as a result, she too has dishonored him. Shechem has shown its external boundaries to be weak; Dinah has shown its internal order to be chaos” (Gender and Law 90).
While Shechem’s behavior is considered reprehensible because he violates Dinah’s father’s rights over her body, the actual “facts of the case,” as it were, are more similar to modern-day stories of statutory rape. According to Clarke’s commentary, he “literally spake to the heart of the damsel—endeavored to gain her affections, and to reconcile her to her disgrace” (Clarke’s Commentary 136).
To restore the family’s honor, Hamor and Shechem must offer anything that Jacob’s family asks, which is exactly what is done. However, this alone is not enough to restore the family name in the eyes of Jacob and his brethren. They rely on another historical method of restoring honor, the reprisal raid. “Such a raid demonstrates that the men can protect their boundaries and that outsiders encroach upon their territory, property, or personnel at the risk of their own lives” (Gender and Law 91). The principles of honor and self-defense that are eminent in sexual assault cases for the rest of history find their beginnings in Dinah and Shechem’s story.
Lacan writes, “Law does not ignore the bed” (Encore 2), signifying the law’s permanent place in the regulation of sexuality. The Lacanian Name of the Father that functioned to control one’s desires is writ large in the case of Dinah and Shechem. Her father functions not only as a symbolic order, but as an actual controlling agent in regulating her desire, and, by extension, Shechem’s desire. In the symbolic realm, the Name of the Father appears in the text of the Mosaic law itself, when the law places the father or husband as the ultimate head of the household and final decision maker.
In the early 1900s, states began enacting laws that placed the state as the Name of the Father. Each state created its own statutory rape laws, defining the age of consent and the age or age differential that made one a perpetrator. (See Table 1 for details.) Unlike standard rape laws, statutory rape laws apply for a limited period of time, usually childhood, but occasionally including the teen years. “Under laws criminalizing sex with children, childhood substitutes for both force and lack of consent” (Sex Equality 871). Judith Levine writes, “The law conceives of the younger partner as categorically incompetent to either say yes or no to sex” (Harmful to Minors 71). Therefore, as Catherine MacKinnon writes, children’s “will is considered incomplete or immaterial” (Sex Equality 871). However, statutory rape laws are not gender-neutral.
As of the mid-1990s in the United States, all but fifteen jurisdictions had gender-neutralized the crime of statutory rape. Alabama, Arkansas, Delaware, Georgia, Idaho, Kentucky, Louisiana, Missouri, New Hampshire, Nevada, New Jersey, North Carolina, North Dakota, Pennsylvania, and Texas remained sex-specific, the perpetrators referred to as males. Most of the gender-neutral states imposed liability only if an age differential of from two to five years existed and the victim was below the statutory age of consent (Sex Equality 884).
The younger partner, more often than not, is female, while the elder is usually male. In fact, until 1981. “the Supreme Court upheld the constitutionality of criminalizing sex with a female minor but not a male minor” (Harmful to Minors 71). The statistical differential of older men having sex with girls versus older women having sex with boys does not account for the legal application of statutory rape laws. The application of the law suggest that girls who have sex with men are victims, while, in the words of Mary Ann Case, boys who have sex with women “are, what, lucky?” In fact, Catherine MacKinnon suggests that the statutory rape laws may serve to create a commodity of sex with young girls. To the prohibition of objects, Judith Butler writes,
Sexuality is as much motivated by the fantasy of retrieving prohibited objects as by the desire to remain protected from the threat of punishment that such a retrieval might bring on. In Lacan’s work, this threat is usually designated as the Name of the Father, that is, the father’s law as it determines appropriate kinship relations which include appropriate and mutually exclusive lines of identification and desire (Bodies that Matter 100).
Through legislation that affects their partners, the judiciary is exercising control over women’s bodies. The regulation of women’s sexuality extends back into juridical history’s time immemorial. Butler writes, “Is sexuality so highly constrained from the start that it ought to be conceived as fixed? If sexuality is so constrained from the start, does it not constitute a kind of essentialism at the level of identity?” (Bodies that Matter 93). Though Butler writes of sexuality in terms of the gender of one’s object choice, juridical history proves that sexuality is also regulated in when an act can be done. In the United Kingdom, the statutory rape laws become more confounded because a greater regulating age differential was placed on male-male relationships (anything more than three years differential was considered statutory rape if one of the parties was under twenty-one), in contrast to male-female relationships (where statutory rape laws were applied in the case of a three-year age differential if one of the parties was under sixteen).
Because the law is inconsistent, the application of the law is even more interesting from a standpoint of what it says about women. Statutory rape laws have, as Butler writes
…the capacity of the law to produce and constrain at once play itself out in the securing for every body a sex, a sexed position within language, a sexed position which is in some sense presumed by any body who comes to speak as a subject, an ‘I,’ one who is constituted through the act of taking its sexed place within a language that insistently forces the question of sex… (Bodies that Matter 95).
Many of the men who are charged with statutory rape have the charges brought against them by the girl’s parents, reviving the Biblical standard of protecting the child’s virginity, “which was the property of her father” (Harmful to Minors 71). The chastity of young women, as opposed to young men, was considered particularly precious. An 1895 California Supreme Court decision in People vs. Verdegreen stated:
The obvious purpose of [the statutory rape law] is the protection of society by protecting from violation the virtue of young and unsophisticated girls…It is the insidious approach and vile tampering with their persons that primarily undermines the virtue of young girls , and eventually destroys it; and the prevention of this, as much as the principal act, must undoubtedly have been the intent of the legislature (appearing in Sex Equality 878).
Often, men are charged with statutory rape in addition to a misdemeanor charge of contributing to the delinquency of a minor. “The fact that the California Legislature has decided to apply its prohibition only to the male may reflect a legislative judgment that in the typical case the male is actually the more guilty party” (Sex Equality 881). According to some state health officials who pushed for the laws, statutory rape laws were developed to discourage teen pregnancy.
The fact that males and females are not similarly situated with respect to the risks of sexual intercourse applies with the same force to males under 18 as it does to older males. The risk of pregnancy is a significant deterrent for unwed young females that is not shared by unmarried males, regardless of their age. Experienced observation confirms that common-sense notion that adolescent males disregard the possibility of pregnancy far more than do adolescent females. And to the extent that [the statutory rape law] may punish males for intercourse with prepubescent females, that punishment is justifiable because of the substantial physical risks for prepubescent females that are not shared by their male counterparts…That other States may have decided to attack the same problems more broadly, with gender-neutral statutes, does not mean that every State is constitutionally compelled to do so (Majority opinion in Michael M. v. Superior Court of Sonoma County).
This is only an effective deterrent when both parties have the biological capability of procreation. A young girl’s sexuality only becomes particularly dangerous, then, when she is physically mature enough to carry a child. However, “criminalizing sex with children surely includes many girls who are too young to conceive” (Sex Equality 882). Her sexuality, like that of the nurse-receptacle presented by Butler, “freezes that which is necessary for the reproduction of the human, but which itself is not human, and which is in no way to be construed as the formative principle of the human form that is, as it were, protected through it” (Bodies That Matter 42). The issue that the deterrent argument rests on is one of materiality. The difference between the material body of a female and a male is such that the laws become largely enforced against males, because the judiciary believes that the threat of pregnancy is enough of a deterrent to discourage young girls from engaging in sexual intercourse. In fact, only the dissent in Michael M. suggests the idea that “boys and girls are sexual equals; therefore both or neither should be held responsible for sex acts between the two” (Sex Equality 887).
Massachusetts statutory rape law protects those under eighteen who have “led a chaste life,” phrasing that seems to imply that only those who have not engaged in sexual intercourse should be protected from unwanted sex. The interpretation of exactly what it means to “lead a chaste life,” however, may be up to the discretion of judges who are influenced by sexist cultural standards that dictate what is appropriate for a young girl to be or do.
Is it possible to be seen as “chaste” when, as Simone de Beauvoir suggests, “woman…[is] required by society to make herself an erotic object” (Second Sex 529)? The presenting of one’s self as a sexual object is not a phenomena that appears suddenly at the time of maturity. De Beauvoir provides a lengthy description of girls who dress for the consumption of others beginning at an early age. This presentation of self as feminine and erotic is seen at its nexus in women whose exclusive function is as an erotic object, the prostitute. In this distinction, there seems to be a fine line between presenting oneself as an erotic object and presenting oneself as an erotic subject. Perhaps it is in the prostitute’s maintenance of control over her bodily sovereignty through viewing it solely on economic terms that creates the social phenomena of viewing prostitution as particularly problematic to the idealized social view of women’s bodies. The existence of prostitution, de Beauvoir writes, is a necessary social institution to save “one part of the female sex” (Second Sex 555). It was not until the 1990s that the judiciary determined that prostitutes could be victims of rape, and that the rape of a prostitute was not simply a civil crime governed under breach of contract suits. This reformation of rape law actually takes into account the difficult social position occupied by prostitutes. Because of their location on the fringes of society, the legal rights of prostitutes are limited at best.
When young girls are encouraged to dress in a way that eroticizes their bodies and are simultaneously given no means of control over their bodily sovereignty, all sex with minors is legally defined as rape, since there is no way that she can give consent. Thus the issue of ambiguous consent arises. If young women are never taught what it actually means to say ‘yes,’ how can they understand what it means to say ‘no’? Similarly, since the age of consent differs across states, when is the “magical age of consent”?
The ages at which a person can drink, smoke cigarettes, drop out of school, get an abortion without parental notification, see a violent or sexy movie, or be incarcerated in an adult prison [differs between states]… Irrationally, as the age of sexual initiation slowly drops, the age of consent is rising. And while ‘adult’ sex becomes a crime for minors, it is only in the area of violent criminal activity that ‘children’ are considered fully mature… (Harmful to Minors 88)
Statutory rape is not about unwanted sex, otherwise it would just be rape. Statutory rape “is about sex she did want but which adults believe she only thought she wanted because she wasn’t old enough to know that she did not want it” (Harmful to Minors 72). Further, Levine writes “The law makes a distinction between willingness to have sex and informed consent, and since a minor is statutorily ‘uninformed’, if it can be proved that he or she and an adult partner had sex, a crime has been committed” (ibid).
There seems to be no room in the discourse of sexuality for positive sexual expression where young people are concerned. Furthermore, putting a teen’s sexuality in the realm of the juridical denies any possibility for sovereignty. “By categorically abrogating a minor’s right to consent, the law grants adults purview over her sexuality” (Harmful to Minors 77). Is this legal protection in fact protecting the minor from herself, or is it denying the possibility for bodily privilege that will suddenly be granted to her from anywhere from fourteen years of age in some states to eighteen years of age in others?
The issue becomes more complicated when the cultural and historical factors surrounding the increased application of statutory rape laws are examined. Of the increase in the 1880s and 1920s, Mary Odem writes, “As their traditional forms of [familial, religious, and community] sexual regulation eroded, numerous parents—immigrant and native-born, black and white—sought court intervention to restrain their rebellious daughters” (Delinquent Daughters 5). This seems to be a uniquely American phenomena, since most other countries have statutory rape laws that allow for an idea that children above the age of twelve can actually give consent freely. In Holland, “the [overall] legal message here is that children over the age of 12 are sexual and potentially self-determining, and they remain weaker than adults, and should be protected accordingly, but not under the autonomous authority of parents” (Sexual Citizenship 215).
While children will someday mature out of the jurisdiction of statutory rape laws, there are those for whom any sex, even if consensual, is always classified as rape. According to federal rape laws, sex with anyone who is known to the perpetrator to be mentally retarded through disability is classified as rape. Mental impairment is a wide category signifying “an individual [with] the following three criteria: intellectual functioning level (IQ) is below 70-75; significant limitations exist in two or more adaptive skill areas; and the condition is present from childhood (defined as age 18 or less)” (Mental Retardation pamphlet). The federal rape statute, along with the stereotypes that have consistently existed about the mentally retarded (known as degenerates, feebleminded, imbeciles, or morons until the 1960s with the political involvement of disabled persons), has led to the victimization of the mentally retarded by both the legal and the medical communities. The laws relied on the belief that low intelligence or mental impairment were inheritable disease states. State laws, such as the first eugenics law in Indiana, began, “Whereas heredity plays a most important part in the transmission of crime, idiocy, and imbecility…” (Gosney Collection). One of the strong stereotypes is described by Dr. Owens-Adair, who wrote, “The public should inform itself more fully upon the amazing fertility of the degenerates. They procreate at an alarming rate. Statistics show that they increase much more rapidly than normal people” (Human Sterilization 9). Furthermore, a pamphlet from the Human Betterment Foundation authored by Dr. Stoppe, an in-house physician, stated that sterilization was especially recommended for the feebleminded, “as they are likely to be too careless to use contraceptives effectively” (Gosney Collection). Because of this, many medical professionals joined on to the eugenics movement, which advocated the medical sterilization of
genuine cases of severely retarded individuals who could not care for themselves, but it also swept up those who were simply shy, stuttering, poor at English, or otherwise generally nonverbal, regardless of their true intellect or talent. Feeblemindedness was truly in the eye of the beholder and frequently depended on the dimness or brightness of a particular moment (War Against the Weak 55).
The eugenics movement, headed largely in the US by Harry Laughlin and Charles Davenport, saw its role as the protective agent for mentally retarded individuals. In this case, however, eugenicists were protecting the mentally retarded from themselves, and protecting society from more people like them. Mentally retarded girls had the double possibility of being victims, both because of their gender identity and their intellectual identity. Eugenicists even took a hard-line view of “retarded” girls who were raped.
That the danger to these girls of low intelligence is real will probably be admitted by most informed persons, and is illustrated by the history of a girl (not in this group) with IQ 29, who was in addition so physically unattractive (being humpbacked, among other things) that her parents believed she was quite safe in their own home, and used occasionally to leave her there while they were out. On one such occasion she was raped by a deliveryman, and gave birth to a child, whereupon she was sent to Sonoma to be sterilized (Gosney Collection, draft manuscript, Laughlin, p 16-17).
This is a rather confusing case, since although the girl was apparently so hideous that her parents believed no one would ever want to have sex with her, someone indeed did want to have sex with her. Yet she was still the punished party, since there was no word on what became of the deliveryman. Somehow it is unthinkable that she, or any other person of low mental development, would desire sex and be able to consent to it. The flaw in legal reasoning is the wide variety of mental impairments that currently exist. Current theory regarding intellectual reasoning and development would indicate that those with an IQ below 75 cannot exercise informed consent because they are missing even the possibility of the ‘informed’ part. While this is clearly demonstrable in cases where the mentally retarded person is incapable of discernable speech, a semblance of narrative flow, and basic life skills, it is more difficult to discern when the individual can care for him or herself. The Arc, an organization for mentally retarded individuals and their families, indicates that 85% of those classified as mentally retarded are highly functioning, which means that only their ability to quickly learn new information and skills is affected. The majority of mentally retarded persons hold down jobs, pay taxes, live independently of their families, and make hundreds of independent decisions on a daily basis. There still exist simultaneous, yet contradictory beliefs—either mentally retarded individuals are asexual, or they are so hyper-sexual that they are unable to control themselves and are a danger to others (most often the fear with mentally retarded boys and men), or are incapable of understanding the possibilities that arise out of engaging in sexual intercourse. Like women, mentally retarded persons are seen as beasts, “the very figures of [sic] unmasterable passion” (Bodies that Matter 43). Judith Butler uses Plato’s phantasmatic economy to explain the female body, but, just as the “notion of the female body as a human form” is impermissible, viewing the body of the mentally retarded individual as a human form is equally unthinkable (Bodies that Matter 53). This has strong implications for jurisprudence, since, Butler writes, “How can we legitimate claims of bodily injury if we put into question the materiality of the body?” (Ibid.)
In these stereotypes, mentally retarded individuals are like constant children. And, like children, the sex education movement has changed dramatically in the last thirty years. For young people of IQs higher than 75, sex education in the 1960s and 70s began as an informative process, with a wide variety of information being disseminated. Sex education focused on preparedness for sex in terms of maturity, love, and ability to use birth control (Harmful to Minors 108). In fact, until the 1980s, abstinence from sex was not a part of sex education, and, if it was included, made up only a small portion.
The historical backdrop to the sea change in sex education is imperative to understanding the legal changes that followed. Sexual expression through intercourse with others, through kissing or “petting,” or masturbation, is threatening to parents. All the above behaviors are considered especially deviant and dangerous for children and teenagers, as outlined by Freud in “Infantile Sexuality.” Freud indicates, like the judiciary, Victorian society believed that the sexual instinct did not exist in children. While the Victorians believed that at some point a child would grow into an adult with the capability of real, responsible sexual feelings, mentally retarded persons were, and still are, viewed as perennial children. Freud slightly adjusted the idea that children were completely devoid of sexuality and introduced the idea of latency into the discourse.
It is during this period of total or only partial latency that are built up the mental forces which are later to impede the course of the sexual instinct and, like dams, restrict its flow—disgust, feelings of shame and the claims of aesthetics and moral ideals. One gets an impression from civilized children that the construction of these dams is a product of education… (Three Essays on Sexuality 43).
While Freud attributed the latency period to education, it was precisely the fear of education that caused the shift in sex education curriculum. Some parents and conservative groups believed that providing education materials on safe sex was only giving teens the idea of actually engaging in sex. As mentioned, the statistics simply did not prove the case. Instead, sex education became, to paraphrase Michel Foucault, more about what wasn’t said than what was. Perhaps the absence of sex educational materials for mentally retarded persons is simply a reflection of the public view of the retarded as perennial children. Educators and parents were terrified at the fate of their children when, “in 1976, the pro-family-planning Alan Guttmacher Institute released Eleven Million Teenagers, a report announcing a national ‘epidemic’ of teen pregnancy” (Harmful to Minors 96). Subsequently, the Adolescent Family Life Act was passed, which promoted adoption, prohibited any organization receiving federal aid from performing or even mentioning abortion to teens. Instead of receiving sex education, teens began to receive “abstinence-only” education, which, if it included contraceptive information at all, only referred to its failure rate. The failure rate, in fact, was the practicability of abstinence-only education.
By 1997, six studies had been published in the scientific literature showing that [abstinence-only classes] did not accomplish their goal: to get kids to delay intercourse. In one case, male students enrolled in a chastity-only course actually had more sex than those in the control group (Harmful to Minors 102).
Not only were one-fifth of teens still having sex, they were also having riskier sex as a consequence of being told that contraceptives don’t work (ibid). What frustrated advocates for responsible teen sexuality was that comprehensive, non-abstinence sex education actually worked. In western European countries, where comprehensive non-abstinence sex education was de rigueur, teen pregnancy and AIDS rates occurred at a fraction of US rates (Harmful to Minors 101-102).
While “normal” teens were receiving abstinence-only sex education, mentally retarded children and teenagers were receiving little to no instruction on sexuality. The instruction usually received was negative, focusing on how to say no and how to avoid being victimized. Until the Americans with Disabilities Act was passed in 1990, there were no guarantees of equal accommodation for disabled persons in the areas of public accommodation and services, government services, or education. With the passage of the AWDA, some sex education materials that were initially only available for children without mental impairments were adapted for developmentally disabled children and teens. Unfortunately, the adaptations that occurred usually came in terms of changing the age-appropriateness of information to reflect the assigned “mental ages” that supposedly correspond with a Stanford-Binet IQ test.
Much of the distaste that parents have for comprehensive sex education has its root in their fears of their child’s objectivity and penetrability. Levine writes, “A girl can be both a ‘sex object’ and a sexual subject” (Harmful to Minors 162). As sexual subjects, however, current legislation does not allow any real subjectivity. Doubtless, there is an age below which children really are incapable of making an informed decision to consent to sexual relations, be it intercourse or other acts. Also doubtless is the principle that force or coercion of any kind indicates rape. But just as businesses and individual actors can enter into contracts with minors with the knowledge that the risk lies in the adult member if the minor feels taken advantage of at a later date, is there not room for similar regulation of sexuality where minors are concerned?
Further, where is the place of jouissance in the lives of children and the mentally retarded? Lacan defines jouissance as that which “serves no purpose” (Encore 3). For the sexuality of those not capable of reproduction, this definition would prove true. But additionally, if societal standards define purposeful sexual relationships as that which has the reproductive capacity within the institution of heterosexual marriage, the definition of jouissance is also appropriate.
Perhaps the fear lies in the idea that these are people’s children, and as parents they want to protect their children from all possible harm or injury. By removing autonomy and the possibility for consent from children and mentally retarded adults, how much protection are we actually offering?
The regulation of women’s sexuality reaches back to the Biblical story of Dinah and Shechem. A thorough reading of Genesis 34 indicates that Dinah was not a victim of sex by force, but was instead an actor in the patriarchal structure where the rights to the virginity of a daughter rested with her father. Thusly, Dinah is the first historical incident of statutory rape. As statutory rape laws evolved in the 1900s, they took away the possibility that young women could consent to sex in a meaningful way, which detracts from the real meaning and harm of rape. Similarly, current rape laws indicate that mentally retarded persons cannot meaningfully and legally consent to sex by virtue of their intellect. Both statutory rape law and rape law where mentally retarded persons are concerned hinge on the Lacanian Name of the Father as the controlling agent of behavior and the Freudian concept of the sexuality of children.
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