A Philosopher's Blog

Defining Rape II: Consent

Posted in Ethics, Law, Philosophy, Universities & Colleges by Michael LaBossiere on June 27, 2014
George Will

George Will (Photo credit: Keith Allison)

In my previous essay, I presented some groundwork and stage setting for the discussion to follow. In this essay I will take a look at the matter of consent.

Intuitively, what makes some activities wrong (and often criminal) is the lack of consent on the part of the victim. Theft, for example, is taking property without the rightful owner’s consent. Kidnapping, as another example, is taking or transporting a person without consent. These misdeeds are similar to rape in regards to the lack of consent. In the case of rape, the activity is sexual in nature (to be deliberately vague) and occurs without the consent of the victim. While these simple definitions have appeal, the matter of sorting out what counts as consent and what constitutes acting without consent is rather more complex. To focus the discussion I will use a recent and controversial example.

Conservative intellectual George Will triggered a bit of a firestorm among liberal columnists and bloggers with his June 6 column about the alleged epidemic of campus rape. The claim that triggered the most outrage was his assertion that “when they make victimhood a coveted status that confers privileges, victims proliferate.”

Some of those attacking Will interpreted him as asserting that women want to be actual victims—that is, that women want to be raped. While some awful people do believe just that, this reading might not be Will’s actual position. Another interpretation, which seems supported by the rest of his column, is that some women will embrace a very broad definition of “rape” and interpret their experiences to match that definition. The motivation, at least as it seems to Will, is to gain a “coveted status” that “confers privileges.” My concern here is not with whether or not Will is correct in this matter. Rather, I want to examine what he takes as an example of how one becomes a member of this “privileged” class of rape victims.

Will uses an example taken from a report about Swarthmore College. In 2013, a woman was in her room with a man “with whom she’d been hooking up for three months”:

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”

As Will notes, six weeks later the woman reported that she had been raped. Will seems to hold that the woman was not actually raped and that she decided to join the “privileged” class of victims by redefining her experience as rape. Others might claim that she had been “brainwashed” by feminist ideology or political correctness to regard her experience as rape. Setting aside the matter of motivation, there is an important question of whether the incident was or was not rape. Those embracing what some would regard as the ideology of leftist feminism would presumably regard it as rape. As Will shows, those embracing a specific form of conservative ideology presumably consider it to not be rape. Obviously, the adherents of the ideologies will regard their view as self-evident and the view of the other as not only in error but driven by vile and wicked motivations. Since I am not a prisoner of either ideology, I can examine the matter more objectively, looking for merits and flaws in the various accounts.

On the face of it, it is easy enough to contend that the incident is a case of rape. While the man did not threaten the woman or use force to have sex with her, he did engage in a sexual act after she had basically said that she did not want to have sex with him. Sex without consent is rape and thus she was raped.

To use an analogy, suppose for a few months I had allowed a friend to take money from my wallet, but then we decided (or so I think) that this money taking will no longer be part of our relationship. She reaches for my wallet and I basically say “No, I don’t want to give you money.” She stops, but then returns to my wallet and takes my money. She has, obviously enough, committed an act of theft: she has taken my property without my consent.

While this view has considerable merit, it is also worth considering an alternative. One obvious complication of the matter is that consent is a matter of communication and communication can be problematic. This creates the practical (and moral) problem of sorting out when consent has been given, when it has not been given, and when a person should know the difference.

In the specific case under discussion, the two parties had been having consensual sex (“hooking up”) for three months. On the face of it, once a relationship is established then it is not unreasonable to accept an assumption of consent. To use an analogy, I keep beer and snacks on hand for my Sunday Pathfinder game. My longstanding friends do not need to explicitly ask permission to get the beer or snacks, since there is a reasonable assumption that they have standing permission to do so. I would, in fact, have an obligation to tell them if certain beer or snacks were off limit—which would then obligate them to not take the specified beer or snacks.

In the case at hand, let it be assumed that the woman changed the relationship from “hooking up” to friends without benefits. This would legitimately remove the assumption of consent (unless otherwise informed). As such, the man could no longer assume that she was consenting unless he was told otherwise.

The woman also notes that she “basically” told him she didn’t want to have sex with him—which would clearly show a lack of consent. The man should have left it at that and not tried again.

However, a devil’s advocate might make certain claims. The first is that the brains of young people are different from adult brains, especially in areas of judgment and impulse control. The second is that the desire for sex is extremely strong and even the prospect of sex impedes rational judgment. The third is that people in general and young people in particular are bad at communication. The fourth is that communication is not merely a matter words—that consent or lack thereof can also be conveyed by actions. Such a devil’s advocate might allege, in his devilish way, that the young man, driven by basic biological desires and impeded judgment, decided to make another attempt at sex and wrongly interpreted, perhaps due to his immature brain and lack of communication skills, her lack of action as consent. That is, he honestly believed that he had consent and had not raped her. She might have also shared this belief for six weeks.

The obvious reply is that none of the devil’s advocate’s claims matter: what matters is that the woman said that she did not want to have sex and then the man had sex “with” her. Thus, it was sex without consent and hence the man is guilty of rape. While this view does have great appeal, it might be worth considering the following analogy.

Suppose I have a nice truck and that my friend Sally really likes driving around in nice trucks. She also prefers to not drive alone. After we have been friends a while, I agree to let her drive my truck and also agree to go with her on her drives. This goes on for three months and I find that I have gotten tired of this aspect of the relationship and tell her so. As far as I can tell, she agrees.

Then I invite her to come over and sit in my truck. After a while, she reaches for the keys in my pocket and I say “no, I am not letting you drive and I am not riding with you.” Rebuffed, she pulls her hand back. But, a few minutes later she is digging around in my pocket for the key. I do nothing. She takes the key and puts it in the ignition. I say and do nothing. She starts the truck and takes me along for the ride.  I am tired, so I just sit back and let her drive. When she gets back, I take the key out of the ignition. Six weeks later I call the police and accuse her of kidnapping me and stealing my truck.

This situation does seem parallel to the original situation. After all, theft is taking property without consent and kidnaping is transporting a person without consent. If the woman did not consent in the original situation, then I did not consent in the analogical situation. If the man was a rapist, then Sally was a thief and a kidnapper. However, I suspect that people would react to my claim that Sally kidnapped me and stole my truck by saying that I should have at the very least said something when she reached for the keys a second time—by letting her simply take them and drive away with me without even another word would seem to show that I consented to the trip. After all, her reaching for the key and so on could be seen as requests for consent—I could have easily replied by saying “no.” Of course, it could be countered that this view is wrong: Sally is now a kidnapper and truck thief because of my original statement which withheld consent.  After all, it might be argued, saying “no” once suffices—and until an explicit, verbal “yes” is given the original “no” is in place.

Naturally, some might want to reject the truck analogy while holding that the original case was one of rape. One obvious avenue of reply is to argue that sexual assault is a special matter and thus it is not analogous to the truck scenario. As such, the man is a rapist but Sally is not a kidnapper and thief.  I might even be accused of trivializing rape by presenting such an analogy. In regards to the first reply, the challenge is to spell out what breaks the analogy—what is the difference that renders the comparison untenable? In regards to the second, it is a mere ad homimen.

The example considered in this essay did not explicitly involve drinking—however, many sexual assaults on campus do. In the next essay the moral impact of intoxication will be considered.


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23 Responses

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  1. T. J. Babson said, on June 27, 2014 at 8:30 pm

    We need to discuss the distinction between “implied consent” and “explicit consent.”

    I would think that if a woman allows a man to sleep half naked in her bed, and then slips in next to him wearing nothing but her underwear, the man might get the idea she had given implied consent to sex.

    • WTP said, on June 27, 2014 at 10:41 pm

      Surely you understand this is yet another of Mike’s passive-agressive dissings of a conservative.

      We need Magus back. If not here at least at his place. Any idea where he dropped off to?

      • TJB said, on June 27, 2014 at 11:05 pm

        No. It has been several weeks since we have heard from him. I think he is in Hawaii so he should be ok.

        Also, He Who Must Not Be Named has not posted for a while so maybe Magus can return.

    • WTP said, on June 29, 2014 at 3:33 pm

      Also, if you don’t want to have sex with a man, don’t crawl into bed with him, period. This post is so much bullshit, any “thinker” who wants to be taken seriously should be ashamed to makes these arguments. Everyone of these analogies are fallacious in the context of the original subject. At times I’m at a loss for words for how stupid modern so-called philosophers have become. If Mike is stupid enough to think that he can convince reasonable people with arguments this stupid, he is even stupider than I thought.

    • Michael LaBossiere said, on June 30, 2014 at 2:34 pm

      There is, as you have mentioned, a push for active consent. Some people have presented this as a reasonable standard-a person must simply indicate that they are willingly going along by word, sign, or action. Some have presented it as much stricter-that a person must make a clear verbal request and receive a clear verbal agreement.

      From a moral standpoint, I would say that a person initiating sex has an obligation to reasonably believe that consent has been given. If the situation is unclear, the person should wait until it is clear. But, I would also say that a person who is not consenting should be clear about this-especially when the situation could be misinterpreted. As with my snack analogy, if I have given my friends free access to the beer in my fridge, then I have an obligation to clearly let them know if that changes.

      Because of the confusion, I can see why some people push the idea of active and explicit consent-if everyone followed this, then there would presumably be fewer incidents. Of course, it might strike some people as a bit odd or excessive. One counter, as you noted, would be that the consent could appear to be clearly implied. To go with the beer analogy, if someone holds out a beer to you and you take it, you would hardly seem to be a beer thief even though you did not seek active verbal consent.

  2. T. J. Babson said, on June 29, 2014 at 4:14 pm

    Eugene Volokh explaining “Stand Your Ground Law”:

    This is because “stand your ground” simply means that, if you reasonably believe that you face imminent death, serious bodily injury, rape, kidnapping, or (in most states) robbery, you can use deadly force against the assailant, even if you have a perfectly safe avenue of retreat.


    Does this mean the Swarthmore student could have legally killed the guy she crawled into bed with? (Let’s assume Pennsylvania is a SYG state for the purposes of argument).

    • WTP said, on June 29, 2014 at 6:39 pm

      Well, theoretically. Of course that argument is rather weak. There’s no indication in the storyline presented that she told him in no uncertain terms to GTFO, which presumably is to be stated or heavily implied. SYG should only be valid if the perp has a viable exit route. Not versed myself on the details of that, but such should not invalidate the SYG concept entirely. But does a woman crawl into bed with someone she has told in no uncertain terms to GTFO? To even be arguing the circumstances in this presumed swath more situation is itself absurd. Unless I missed it, at no time did she use the resources readily available to have the guy removed from her domicile. Again, SHE CRAWLED INTO BED WITH HIM. There was no reason to do so. The guy was not threatening her, in fact he was not even conscious when she chose to do so. She had every opportunity to call someone, a friend, a relative, the police, to have him removed from her bed. It is a serious indication of the stupidity of our culture that there would be any question whatsoever about this situation. We don’t need analogies to make it any “clearer”. It is nonsense on stilts (a favorite George Will expression) to even waste time with this. Surely there are elementary school recess conflicts with greater merit for our attention.

      • T. J. Babson said, on June 29, 2014 at 7:48 pm

        I think this underscores the importance of having a good definition of “rape.” As I tried to argue before, if there is no violence and no trauma, do we really need to treat the crime as seriously as murder?

        Does the guy who “raped” the Swarthmore girl deserve the death penalty? What say you, WTP?

        • WTP said, on June 29, 2014 at 8:26 pm

          If he was really threatening, and note I use the word “threatening” as understood throughout modern English understanding of the term…Modern being up to the dawn of the 21st century, rape, yes. But he was sleeping at the time she got into bed with him. Seriously, this whole argument is rediculous.

          Here’s a much better use of philosophy. Though I would have expected more from Beckenbaur as he was in his prime then. Also gotta question Martin Luther’s lineup and substitution decisions.

    • Michael LaBossiere said, on June 30, 2014 at 2:39 pm

      Interesting question. If the explanation is assumed to correctly list the conditions (specifically rape), then the answer would certainly seem to be “yes.” Now, what a jury would actually decide is another matter.

  3. punterthoughts said, on June 30, 2014 at 10:51 am

    An argument put forward by radical feminists postulates prostitutes do not really consent to sex. They are “desperate2, taken advantage of by (mainly men). consequently prostitution is “paid rape”. Now it is true that a woman may hate the idea of selling sexual services but through real (or imagined) lack of other options may proceed with the transaction. She does, in my view still consent but to radical feminists she is raped.

    • T. J. Babson said, on June 30, 2014 at 10:55 am

      I would think prostitutes are about the only women who give *explicit* consent to sex. I think men are forced to guess whether or not they have consent 99% of the time.

      • punterthoughts said, on June 30, 2014 at 11:15 am

        I agree with you, however I always ask a woman who I know is new to sex work (I have seen quite a few first timers) whether she is content to have sex, (even if it has been agreed upon prior to the appointment I still like to make doubly sure).

    • WTP said, on June 30, 2014 at 11:20 am

      To even more radical feminists all PIV is rape. As I said, this issue is pointless, yet Mike gets three posts out of it. These are the definitions of the word “rape”. Note the use of words like “force” and “violence”:

      Webster on-line:
      2rape verb
      : to force (someone) to have sex with you by using violence or the threat of violence

      OED on-line:
      The crime, typically committed by a man, of forcing another person to have sexual intercourse with the offender against their will:
      he denied two charges of attempted rape
      he had committed at least two rapes
      1.1 ARCHAIC The abduction of a woman, especially for the purpose of having sexual intercourse with her:

      This is the English language. All else is bullshit, pure and simple. If you don’t want to have sex with a man do not willingly get into bed with him. And alcohol is no excuse either. It’s like arguing someone is not responsible for DWI because when they made the decision to drive they were impaired.

      • punterthoughts said, on July 1, 2014 at 1:53 am

        There was a case reported on in the UK media in which a man got into bed with a woman and the lady believing that he was her partner had sex with him. My recollection of the facts of the case are somewhat hazy but, if memory serves me correctly the man was convicted of rape on the basis that had the woman known that he was not her husband she would not have engaged in sexual activity with him. Obviously this is a very unusual case.

        • punterthoughts said, on July 1, 2014 at 2:14 am

          Apologies, I was getting confused. The news item I am thinking of pertains to the USA, not the UK and is here http://thinkprogress.org/justice/2013/01/04/1396711/california-appeals-court-tosses-rape-conviction-because-the-woman-was-unmarried/.

          • WTP said, on July 1, 2014 at 9:02 am

            Yeah, but once she became aware of who the guy was (or more specifically, who he wasn’t) she resisted:

            she realized it was not Victor and tried to push him away. Defendant grabbed her thighs and pushed his penis back into her vagina. She pushed him away again and began to cry and yell.

            That was rape. There was violence involved. He physically force himself on her after she pushed him away and obviously resisted. He forced himself on her against her will. This is nothing at all like the Swathmore case.

    • Michael LaBossiere said, on June 30, 2014 at 2:53 pm

      In some cases, prostitutes are coerced by those selling them, which would certainly make having sex with such a prostitute wrong. Unless, of course, the person doing so honestly believed the prostitute was freely engaging in the act. In which case, ignorance of the situation would be a morally mitigating factor.

      • punterthoughts said, on July 1, 2014 at 1:38 am

        I agree with you, being in ignorance of the fact that the prostitute was being coerced would be a morally mitigating factor however, in a UK court of law the client would face prison, as having sex with a person who is subject to coercion is a strict liability offense (I.E. ignorance of force having been employed against the prostitute is no defense). To my knowledge no one has been convicted of this relatively new offense. It strikes me as constituting bad law as, to take an anology if I buy a television advertised online genuinely believing that it is the property of the advertiser and it is subsequently found it has been stolen by him, my ignorance of it having been stolen would be a defense in law (I.E. it would be for the prosecution to prove that I knowingly bought a stolen television). Enter your comment here…

        • Michael LaBossiere said, on July 1, 2014 at 8:57 am

          Yes, from a sensible standpoint the prosecution would have to show that you knew you were buying stolen goods. For example, if you bought a TV via eBay and it turned out to be stolen, you should not be charged with buying stolen goods. Buying a TV off a truck in an alley might be different matter.

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