Rape & Consent

1. Rape & Consent • Feminism Lecture V 7/2/14

2. Introduction • Rape is extremely frequent • Cultural misunderstanding of what rape is • What Counts as Rape • The Distinct Harm of Rape

3. What counts as Rape? • Force: Must rape involve force? • Consent: Rape as non-consensual sex, and what this means • Practical Epistemology: When is it reasonable to believe that someone has consented? • Beyond Consent: Is consent enough? Problems with Consent; Attractions of other models

4. Force • Some people think that rape must involve violent force • Schulhofer: Sexual Assault involves using physical force to force another to submit to sex; Sexual Abuse is a lesser crime that involves the absence of consent • But there are many types of rape that need not involve violence • And these cases can be just as bad and worse • Mackinnon: Rape is sex by compulsion; physical force is one type of compulsion • But why talk of compulsion rather than absence of consent?

5. What counts as Rape? • Rape as non-consensual sex • Should understand sex expansively • What counts as consensual sex?

6. What is consent? • Consent is morally transformative • By consenting one can accrue obligations • Performative Account of Consent: Consent is an act not a state of mind • Consenting is not liking & one can consent to something that one doesn’t like • A consents only if A is aware that she is consenting • One can consent implicitly • In consenting to something we do not consent to that things being accomplished in any manner whatsoever • Appearance, attire, status, relationship to another, sexual history, & location ≠ consent • Problem: Saying ‘yes’ to someone who threatens to kill you. But this is coerced consent

7. How is Consent Given? • Explicit Consent • Tacit Consent • Within particular contexts certain non-verbal behaviours can constitute consent: auctions, • Indirect Consent • Consenting to Q by consenting to P, when one knows that Q must follow from P • Quasi-Consent?

8. Models of Consent in Sex • The ‘No-Model’: If we have sex, we consent unless we say no • Problem: Physical Paralysis as a response to trauma; Disorientation; Fear • Problem: Ad-hoc

9. Models of Consent in Sex • The ‘Yes-Model’: One does not consent to sex unless one says ‘yes’ to sex • Problem: this would criminalise sex in which no verbal consent has been given but it would have been given had it been asked for • Sometimes we can consent to things without saying ‘yes’ to them • Schulhofer, architect of the ‘Yes-Model’ claims, ‘If she doesn’t say “no”, and if her silence is combined with passionate kissing hugging, and sexual touching, it is usually sensible to infer actual willingness’ • If verbal yes not required for consent, then either (i) A can consent without knowing that she consents or, (ii) B can rape A whilst reasonably believing that they are not raping A

10. Reasonably Believing in Consent when there is none • Husak and Thomas: what it is reasonable to belief is an act of consent is partially determined by social conventions… • Women engage in courtship rituals which sometimes involve non-explicit advances to sexual advances • But men and women attribute different meanings to the same behaviour: men read non-sexual behaviour as sexual behaviour • And conventions are general but particular sexual interactions are very particular • Finally: Disagreement about these conventions undermines the status of beliefs on the basis of them • There will be some non-verbal acts that do constitute consent • But if social conventions can license reasonable belief, then rape culture can license reasonable belief

11. Action on the basis of beliefs about the particular case Beliefs about a particular case General set of beliefs about women, sex, rape, and consent Unreasonable Rape myths Is consenting Is consenting Skewed perceptions

12. Reasonably Believing in Consent when there is none • We should not say that those in the grip of rape myths reasonably believe that those they rape are consenting • But being in the grip of these myths does make one not intentionally guilty of rape

13. Reasonably Believing in Consent when there is none • Lois Pineau : Shifting focus to the enjoyment of women • If A was not attracted to the kind of sex offered by B, then prima facie it would unreasonable for A to have consented to have sex with B. • So, epistemically, in such cases, where there is reason for B to believe that they are in such a case, it is unreasonable for B to think that A has consented unless she has explicitly done so • In cases where this is established, B should have the burden of proof to show that A consented • Objections: • Men never know in this situation • Do not go into the lions cage: sexual desire overrides epistemic capacity

14. Problems with the focus on Consent • Problems unless express consent to the particular act is called for • Men misinterpret women’s behaviour. Tendency to see female sexual conduct where there is none • Many people want to consent to sexual intimacy but not penetration - for instance due to HIV and other STDs • Deer-in-headlights responses • Objection: these are only problems with not requiring express consent

15. Beyond Consent • The Communicative/Negotiation Model • Partners must communicate with one another to discern each others desires and limitations before sexual penetration occurs • Instead of consenting - granting permission - negotiating involves an active consultation with someone else to come to mutual agreement • Does not say anything about the content of negotiations • Negotiation must be specific but need not be formal • Communication must lead to agreement • Most negotiations are verbal - but if people establish a customs/patterns of sex through negotiation verbal negotiation and agreement may become unnecessary • Explains what is wrong with the Adrienne & Mike example

16. Beyond Consent • Objections to The Communicative/Negotiation Model • Criminalises unproblematic sex • Response: most sex is consistent with the negotiation model & before making the law a public education programme could be undertaken • How can we find evidence of negotiation? • Response: Perhaps easier to show no negotiation than ‘no’ or ‘yes’. • A negotiation requirement kills romance

17. Beyond Consent • Relationship between Communicative/Negotiation Model & ‘Enthusiastic Consent’ • Both are more radical than the other in different ways • Sex is Not a Slide: Changing your mind about sex effects the permissibility of the other person continuing! • The Communicative/Negotiation Model may be better than the Consent model on this issue

18. Summary • Rape need not involve force • Rape must at least involve consent of the ‘yes’ type • But there are problems with the consent model that can be overcome by the communicative/negotiation model

19. The Distinctive Feature of Rape

20. What is the Distinct Feature of Rape? • Burgess-Jackson: The distinctive feature of rape, which makes it unique, is that it is overwhelmingly a crime against women • 91% of people raped are female; 99% of rapists are male • Rape is not essentially a crime against women - but this is not relevant rape as we know it is a crime against women • Rape treats women as 2nd class citizens. Singles women-out and targets women because they are women • Worry: If this is true of rape, isn’t the same true of sexual harassment? • Worry: If this is true of sexual harassment, then it’s not true that its being overwhelmingly against women is rape’s distinctive feature

21. Does Rape Harm Women as a Group? • Rape as a terrorist institution • Rape is a hate crime • Rape is not anomalous in patriarchal cultures • Rape enacts and reinforces rather than contradicting widely shared cultural views about gender and sexuality

22. Does Rape Harm all Women? • The knowledge of vulnerability to rape undermines women’s opportunities • Cahill: the knowledge of vulnerability to rape leads women to restrict their bodily movements and view their own bodies in negative ways

24. Does Rape Harm all Women? • The knowledge of vulnerability to rape undermines women’s opportunities • Cahill: the knowledge of vulnerability to rape leads women to restrict their bodily movements and view their own bodies in negative ways • Restrictions of bodily movement reflect an attempt to deny unwanted sexual access, which paradoxically serves to highlight women’s vulnerability • From a young age women are led to perceive men and their supposedly uncontrollable sexual desires as dangerous. This leads to perceiving oneself and one’s environment differently

25. What can we do to mitigate this harm to women? • Obvious things: education, better conviction and protection • Cahill thinks that feminist self-defence classes can help fight the harm to women in general • Objections: places too much of a burden on women; is ineffective; increases fear