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Concerning the question about a definition of rape answered by Nicholas D. Smith and Alan Soble (http://www.amherst.edu/askphilosophers/question/768), I have the following comment/questions.

In all *legal* definitions of rape that I have seen, the main point of argument is not whether or not "sex" (which can generally be defined as a whole range of conduct outside of intercourse) was "wanted" or even "consented to" (as was inferred in the previous posting), but rather, whether or not specifically "penetration" (i.e. invasion of any bodily orifice by a foreign object) was "forced" against a person's "will". I don't see how there could be any argument here, though certain pedants might squabble over an acceptable generalized definition of "will".

Here is my concern: I was attacked by a stranger who broke into my apartment late at night and roused me from sleep. He punched me in the face a couple of times, then placed my pillow over my face and threatened to smother me to death if I didn't cooperate with him. He showed intention to penetrate my body, but clearly made a decision not to when he discovered that I was menstruating; yet the attack continued. In order to bring the episode to closure ASAP, I agreed to masturbate him to ejaculation (consenting, but not willingly), after which he left, but not without first stealing money from me. The charges filed against this man did not include rape because there had been no penetration. But, there was never any question about whether a crime had been committed. That's one point.

Here's another point: Because of the charges, the "wrong" authorities were handed the investigation (i.e. the burglary division, as opposed to the sex crimes division). This decreased the probability of the man being caught (he was not), and a week later, my roommate was raped according to the legal definition in our apartment while I was at work; probably by the same man, from her description.

According to the answers to the question I referred to above, it sounds like you are suggesting that I am mistaken in thinking that agreeing to the unwanted behavior with the intention of preventing further harm to myself and preventing myself from being forced to harm my attacker in some way was a morally positive act. I consented not out of romantic love for another, not out of vindictiveness, and not for masochistic reasons, but out of self preservation and a sense of compassion for a person who appeared to be deeply troubled. Are you implying that since I consented, a violation against me had not been committed? If so, I must disagree!

Second, because the law does not consider harmful sexual misconduct without penetration to be similar to rape (it defines such misconduct as "assault", which, in the state in which I was attacked, is a lesser charge to burglary, which is a lesser charge to rape!), is it not immoral and/or unethical NOT to consider such misconduct to be carried out with similar intent as with rape and legislate it as such? For example, doing so may have helped the authorities catch this man before he was able to rape my roommate or anyone else; and doing so would have afforded me the same rights and allowed me access to the some of the same needed services that my roommate was automatically offered as a legally defined "victim of rape." Likewise, if this man had been caught and convicted only of the charges stemming from his case with me, he would have been closed out of certain pertinent therapies simply because his violation was not considered a sex crime.

Rape is legally defined solely by action, but would it not help more people (victims and perpetrators alike) to define it by action AND intent? Isn't that how various degrees of murder are defined? Why aren't there various degrees of sexual crimes?

August 9, 2006

Response from Alan Soble on August 11, 2006
So many interesting questions, so little time. . . . For now, only a few brief comments. (1) See the US Supreme Court case ROSE v. LOCKE, 423 U.S. 48 (1975). A man compelled a woman at knifepoint to submit to cunnilingus; he was convicted of violating Tennessee's "sexual crimes against nature" law; he appealed, arguing that the law was unconstitutionally vague and did not explicitly prohibit male-to-female oral sex; the Court ruled against him; Justice Stewart dissented, agreeing that the law was unbearably vague, but added that the man should have been prosecuted for assault and battery (not "rape"). (2) Debates about the "mens rea" of rape heated up after the 1976 British House of Lords case, Regina v. Morgan. That case is notorious for concluding that an honest even if unreasonable belief in the consent of the raped person exculpates. For more recent thinking on this issue, see Stephen Schulhofer's 1998 book Unwanted Sex. (3) I suggest that a more careful survey of contemporary rape statutes will be useful and illuminating. Consider, for example, Utah's law: It is a felony for a person to engage in sexual penetration or sexual contact with another person without that person's consent (from A Guide to America's Sex Laws by Richard Posner and Katharine Silbaugh). Note: contact alone without penetration counts as rape; "force" against one's "will" is not required; absence of consent is decisive. (4) I do not believe that the author of this question [legally] consented to the act(s) that she performed. There was sufficient coercion and intimidation to nullify her "agreement."
Response from Jyl Gentzler on August 11, 2006
I agree with you that the distinction, on which the law must rely in such cases, between genuine consent and non-consent is tricky. If you agreed to do a sexual act that you regard as repulsive in order to save your life, did you or did you not “consent” to the action? If I give a kidnapper $100,000 in order to obtain the safe return of my child, have I acted willingly? You might worry that Nicholas Smith suggested a positive answer to these questions when he suggests that a loving spouse can find sex distasteful but nonetheless “consent” to sex with her husband “out of love.” She doesn’t want to do it, he suggests, but nonetheless, since she consented, the sex wasn’t rape. I don’t, however, think that Smith’s suggestion has the implication that victims of coercion, such as you experienced, count as having “consented” to their actions.

So what is the difference between you and the dutiful and loving wife? In both of these cases, a person agrees to do something that she would not otherwise have desired to do had it not been for the existence of someone else’s desire. However, this similarity distinguishes these acts from almost no other acts. In almost every case, our actions would not have been pursued had it not been for the desires of others. Because most of our actions take place within a social context of other desiring individuals, given our social nature, most of our acts wouldn’t make any sense to us outside of this context.

Instead, it seems to me, the difference between you and the dutiful and loving wife is this.

The dutiful and loving wife wishes to satisfy the desires of her husband; for surely, part of what it means to love someone is that, unless his desires are in some way objectionable, one wants those desires to be satisfied. Perhaps she finds the experience distasteful. However, the presence of this displeasure can’t be sufficient to remove her consent from the act; otherwise, many of the unpleasant things that parents do for their children would be acts to which the parents couldn't give genuine consent (which is not to suggest that children aren’t capable of genuine coercion!).

In the case that you had the misfortune to experience, another person threatened to take away from you something that was rightfully yours unless you gave him something of less value to you that was also rightfully yours. In the case that Smith imagines, I assume, the husband is making no such threat. Were he to threaten to kill his loving wife or to harm their children or to do some other act that he had no right to do, if she didn’t have sex with him, then it would be a different story. In your case, a person did threaten to take away from you what he had no right to take on the condition that you did something that he had no right to demand. In such a situation, your giving in to his demand does not constitute “consent” for any legitimate legal purposes. The tricky question, of course, is how to specify what one has no right to demand of another.

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