Lois Pineau, in her essay "Date Rape: A Feminist Analysis," argues that the problem with understanding and defining date rape, in order to prevent it from happening and to make it easier to prosecute successfully if it does occur, is a problem of communication. Essentially, she argues that date rape occurs when the man does not take into consideration the pleasure and enjoyment of the woman. She calls this "communicative sex" (Pineau, ?, 345). She suggests that society and the law need to shift the emphasis from forcing the woman to prove "an episodic act of resistance" (344) to the man having to prove the sexual act was accompanied by an effort to communicate with the woman with respect to her desire to have sex, what she wants or doesn't want in sex, whether she is having her desires met, and so on:
On the old model of aggressive seduction we sought evidence of resistance. But on the new model of communicative sexuality what we want is evidence of an ongoing positive and encouraging response on the part of the plaintiff (Pineau, ?, 344).
Society at this point, says Pineau, views the sexual encounter as one in which the man is by sociobiological imperative aggressively trying to seduce the woman, and the woman by sociobiological imperative resists that seduction. In this scenario, reflected in the law, the woman must prove that she has gone beyond the sociobiological imperative and made it clear to the man that she is not merely playing at resistance but is sincerely expressing her desire to not have sex.
The new model prescribed by Pineau, based on communicative sex, "would enable us to introduce a new category of nonaggravated sexual assault which would not necessarily carry a heavy sentence but which would nonetheless provide an effective [legal] recourse against 'date rape'" (344).
Pineau's heart is in the right place. It is absolutely correct to shift the burden of proof away from the victim and onto the perpetr...