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CJ 301 San Diego State University Wk 10 Feminist Jurisprudence Essay

Background:  In our Week 10 class discussion regarding the existence or non-existence of a gender wage gap, there was some discussion regarding a possible reason women may be paid less than men is that women may tend not to “speak up.”

Writing assignment no. 4, undertakes to present a question that combines issues of 1) Feminist Jurisprudence which formed the subject of our Week 10 class and is discussed in Chapter 4 of An Introduction to the Sociology of Law), and 2) Criminal Law, the subject of our Week 11 class and the subject of Chapter 8 of Law 101.

In Chapter 8 of Law 101, Jay Feinman heads a section of his review of Criminal Law writing, “Why is Rape Law So Controversial?”  See Law 101, p. 296.  In his associated discussion, Feinman writes, “Does ‘no’ always mean ‘no’?  Is sex without overtly expressed consent rape”?  Id., p. 297.

Presently, in matters involving certain sexual assault crimes, California defines “consent” to mean “positive cooperation in act or attitude pursuant to an exercise of free will.  The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.”  California Penal Code Section 261.6. [Emphasis added].

Prompt:  Assume the State of California has recently revised section 261.6 to add the following language:

Neither positive cooperation nor positive attitude shall be deemed to exist when the alleged victim did not verbally communicate express agreement to the charged act.  No particular word or words are required, though consent shall not be inferred through silence or by the absence of physical resistance, regardless of other evidence involving alleged positive cooperation in act or attitude.  In the event either the alleged victim or defendant or both suffer from a disability (which is not caused by use or consumption of intoxicating substances) that substantially impairs the individual’s ability to speak or hear, you may consider other evidence relating to express communication of consent.  

Using principles of feminist jurisprudence and theories supporting criminal punishment, discuss the revised statute. 

Here are the text book’s so you can use to support the answer: This is Chapter 4 of An Introduction to the Sociology of Law.and this is Chapter 8 of Law 101.


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