Rape isn't just wrong, but it is historically among the handful of the very worst types of crimes, sharing that unhappy position with murder, torture and treason. I take it that every instance of rape is very seriously wrong.
But now consider a spectrum of sexual acts: on one of the spectrum is a sexual act motivated by the man threatening the woman with death; on the other end of the spectrum is a sexual act motivated by the man threatening the woman that if she doesn't have sex with him, he won't take her out to the movie that they planned to go to. In the death case, the sex is non-consensual and hence rape. In the no-movie case, the sex is consensual and hence not rape: the threat is way too mild to invalidate consent.
Somewhere in that spectrum is a transition--be it vague or not--between non-consent and consent and hence between rape and non-rape. But every instance of rape is very seriously wrong. When we have continuously transitioned away from a very serious wrong, we shouldn't expect to immediately land in the territory of moral innocence. Rather, we should expect to land either in the territory of another wrong, either another very serious wrong or a "merely" serious wrong. If we start with an act of torture and continuously reduce the degree of pain, eventually we will get an act that isn't torture--but an act that falls somewhat short of the amount of pain needed for it to count as torture is still a serious battery.
Thus we should expect there to be sexual acts that are consensual, but seriously wrong because they are neighbors to rape. Moreover, we should expect that these acts will still wrong for reasons connected to their sexual nature, just as rape is very seriously wrong for reasons connected to its sexual nature. Consent, thus, is necessary but not sufficient for sexual integrity.
Here's a different way to put the argument. If one thinks that consent is the only condition needed for the permissibility of sex (with respect to sexual integrity--of course, there are other conditions, such as whether promises are broken, etc., but they aren't properly sexual), then one has to think either that (a) we have a transition from a very seriously wrong act to a completely innocent act in the above spectrum without any intermediate cases that are wrong but not seriously so, or (b) there are cases of rape that are non-seriously wrong. I think (a) is implausible and (b) is clearly false.
The spectrum I generated above was based on a spectrum of threats. But one can also generate a spectrum based on degrees of sobriety, degrees of understanding, clarity of expression (consent is a speech act), etc.
This has an important consequence particularly relevant to college judicial policies: If acts that aren't rape but are close to rape are seriously wrong, then in cases where it cannot be shown that a rape occurred, but it can be shown that either a rape occurred or a serious wrong close to rape occurred, it can still be just to levy serious punishment. Of course, this would require due process, and hence a way to operationalize the notion of such acts close to rape.
Note 1: None of my argument is meant to give aid or comfort to those who want to narrow the definition of rape. Rather the point is to widen the scope of wrong acts, for instance in the way that the "enthusiastic consent" movement does.
Note 2: The argument I am giving is not a sorites. Vagueness complicates the argument, but does not, I think, destroy it.
For the record, I am inclined to think the no-movie case to be wrong, but nothing in the argument rests on that.
ReplyDeleteOverall I agree with the spirit of this post. But I did not follow this part:
ReplyDeleteIf one thinks that consent is the only condition needed for the permissibility of sex (with respect to sexual integrity--of course, there are other conditions, such as whether promises are broken, etc., but they aren't properly sexual), then one has to think either that (a) we have a transition from a very seriously wrong act to a completely innocent act in the above spectrum without any intermediate cases that are wrong but not seriously so, or (b) there are cases of rape that are non-seriously wrong.
I would have thought that somewhere in the spectrum were non-seriously wrong acts which did not count as "rape" since we save that word for the seriously wrong acts.
Tangentially related is this post: http://peasoup.typepad.com/peasoup/2015/12/sex-work-is-different.html#more
Heath:
ReplyDeleteI am assuming in the argument that every non-consensual instance of sex involves rape.
Let me rewrite the argument. On the spectrum I gave, we somewhere have a point (where exactly it is may be vague -- but if so, then I'll suppose supervaluationism and fix a particular precification) x such that to the left of x the sex is non-consensual and to the right of x the sex is consensual. All the acts to the left of x are rape, and hence are seriously wrong. None of the right of x are rape. If consent is sufficient for permissibility, then all acts to the left of x are impermissible and all acts to the right of x are permissible. Hence, either (a) all the acts to the left of x are very seriously wrong and all the acts to the right of x are not wrong, or (b) some acts to the left of x are not very seriously wrong, or (c) some acts to the right of x are wrong.
In case (a), we have the implausible transition from seriously wrong to innocent.
In case (b), some rapes aren't very seriously wrong.
In case (c), some consensual acts of sex are wrong. I reject (a) and (b), and that leaves (c).
I really like your sex-work-is-different post. In response to some of the comments, one might add that the state has the right to make one do work that is needed to meet basic needs. Moreover, a paradigm example of the state's exercise of that right is its forcing people to do work that has a high probability of being very dangerous and traumatic -- namely, drafting people into the military. But it would be clearly wrong for the state to force a person into sex-work even if it were needed for the protection of the state (you can fill a story here: enemy general needs to be seduced to get plans from him but no one attractive enough to do the job volunteers for it).
Alex,
ReplyDeleteYour revised argument is clearer. Basically I agree except that I think 'consent' is a vague matter, so there are sort-of consensual cases of sex which are therefore sort-of rapes and sort-of wrong. In my view this is part of what makes college judiciary cases so difficult to untangle (sometimes): the rules are written for a binary concept which often doesn't apply. The criminal law applies a much more black-and-white standard.
The Scott Anderson paper mentioned in the comments of the 'sex work is different' is quite a good paper and covers a lot of this territory (i.e. bad-making aspects of sexual decision-making) very helpfully.
The way I would look at it, the "sort of" cases are still wrong, not just sort of wrong.
ReplyDelete(Of course, thinking that all non-marital sex is wrong makes the typical cases simpler. (Though one can still have marital cases.))
I found this a very compelling argument, but one thing I'm somewhat unclear about is whether, when the law is interpreted, there is always a strict & distinct binary relationship between consent (permissible) & non-consent (impermissible)? Are there, for example, occasions when convictions have arisen from cases where consent was granted but it was considered "shaky", or perhaps the act was of such considerable sexual violence or aggression that it was ruled rape by virtue of its manner. I suppose I'm asking whether in all cases, in all jurisdictions the utterance of consent is always the green flag of permissibility in a way that makes non-consent the sole "hallmark" of rape...
ReplyDeleteI wish I knew. I am not a law scholar, though. Sorry!
ReplyDeleteI like your Note 2: "The argument I am giving is not a sorites. Vagueness complicates the argument, but does not, I think, destroy it." I think it is important for both moral and judicial judgment.
ReplyDeleteThe post also reminded me of a law in the OT mentioned in Deuteronomy 22:23-29. There consent is set against resistance. While the law assumes that resistance would mean that the victim cried out (for help), the meaning of "resistance" obviously is not limited to the act of crying out, but also includes situations where crying is not possible or is vain, as in war situations.
It also reminds of Augustine's answers to the issue of rape in the City of God. "Avoidance" is another issue mentioned, in line with the issue of resistance. Augustine talks of virgins who killed themselves in order to save themselves from rape, and thinks they deserve forgiveness. There is one case of history where a group of women, led by the Queen Padmavati, created a furnace of fire and jumped into it when they heard that their husbands were slain in battle, and they knew that their enemies were coming for them (which is said to be the real purpose of the battle in which the husbands had gone to defend the honor of their wives). This was considered an act of heroism in Indian history...
I do not mean to suggest here what means of non-consent or resistance ought to be employed, but, am just pointing out few cases that shocked history. But, I find it interesting that the Law of Moses includes the criteria of "resistance or no-resistance" in the definition of consensual or non-consensual sex. I also wonder how important this criteria would be... Is it the same as non-consent, though "resistance" seems to have a more active connotation.
Heath:
ReplyDeleteHere's another thought. If rape is very seriously wrong, then sort-of rape is sort-of very seriously wrong. But something that's sort-of very seriously wrong is probably at least seriously wrong.
Domenic:
ReplyDeleteNon-resistance is not at all the same thing as consent. Consent is a positive giving of permission.
Theft is appropriation without consent. If I come home to see a robber carrying out my laptop, the fact that I don't object does not mean that I have consented to her taking my laptop (and thereby signed it over to her). I may be too scared to object or I may be running a sting operation. The sting operation case is particularly interesting because it shows that wanting something is not the same as consenting to it. If the police run a sting operation for a thief, they *want* the person to take the property. But they do not *consent* to the thief's taking the property, since if they consented, it wouldn't be theft, and so they wouldn't be able to arrest the person for it.
Very right!
ReplyDeleteI like the distinction between *want* and *consent* in the sting operation case. Of course, we understand that law-makers try to protect citizens against victimization or entrapment cases of sting operation. And, certainly sex for the sake of espionage is *consent*, and so violates the sacredness of it.
It seems like your entire premise falls on the belief that consent and rape are binary, but wrongness is a continuum. While the legal definitions must in a court of law evaluate to a binary outcome, the question "How much coercion was applied in order to secure consent?" tracks both the rapiness of the act and the wrongness quite closely. If we look at one edge of the continuum of coercion as "I would not be as happy if you did not consent have sex", and a distant edge as "I will commit a violent act if you did not consent to have sex", it becomes clear that there is no clear frontier between what is and isn't coercion.
ReplyDeleteBut the argument does not require a clear boundary. All it requires is that it be definitely true that all non-consensual sex is very seriously wrong. That can still be true even if the boundary is fuzzy. All it takes is that the borderline cases are still very seriously wrong.
ReplyDeleteCompare this: the boundary between genocide and other acts (like multiple murder, inciting a riot, etc.) can be fuzzy. Nonetheless, the borderline cases are very seriously wrong.