In my previous essay, I presented some groundwork and stage setting for the discussion to follow. In this essay I will look at consent.
Intuitively, what makes some activities wrong (and often criminal) is lack of consent. Theft, for example, is taking property without the owner’s consent. Kidnapping, as another example, is transporting a person without consent. In the case of rape, the activity is sexual in nature (to be deliberately vague) and occurs without consent. While these simple definitions have appeal, the matter of sorting out what counts as consent and what constitutes acting without consent is complicated. To focus the discussion, I will revisit a controversial example.
Years ago, conservative intellectual George Will triggered a firestorm among liberal columnists and bloggers with his June 6 column. 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 raped. While some awful people believe that, this reading is probably not Will’s actual position. Another interpretation, which is supported by the rest of his column, is that some women will embrace a broad definition of “rape” and interpret their experiences to match that definition. The motivation, at least as it seemed to Will, is to gain a “coveted status” that “confers privileges.” My concern here is not with whether Will is correct. Rather, I want to re-examine what he takes as an example of how one becomes a member of this “privileged” class of 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 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. Setting aside the topic of motivation, there is an important question of whether the incident was rape. As Will showed, those embracing a specific form of conservative ideology presumably consider it to not be rape.
On the face of it, it is easy to argue the incident was rape. While the man did not threaten or use force, he did engage in a sexual act after she had 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 use my truck, but then we decide (or so I think) that this will no longer be part of our relationship. She comes to borrow my truck and I basically say “No, I don’t want to.” She stops but then returns, takes the keys and drives away. She has engaged in theft by taking my truck without consent. Our previous agreement and behavior are not relevant, since we ended the agreement.
While this view has merit, it is worth considering an alternative. One complication is that consent is a matter of communication and communication can be imperfect. This creates the practical (and moral) problem of sorting out when consent has been given, when it has not, and when (and how) a person should know the difference.
In the specific case, 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, before COVID moved the game online, I used to keep beer and snacks on hand for my Sunday D&D game. My longstanding friends did not need to explicitly ask permission to get the beer or snacks, since there is a reasonable assumption that they have standing permission. I would, in fact, have an obligation to tell them if certain beers 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” and ended the sexual aspect. This would 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 show her lack of consent. The man should have left it at that and not tried again.
However, a devil’s advocate might raise certain points. The first is that the brains of young people are different from adult brains, especially in judgment and impulse control. The second is that the desire for sex can be 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. Thus, it was sex without consent. But the devil might continue and offer an analog.
Suppose my friend Sally likes driving trucks and hates to drive alone. After we have been friends a while, I agree to let her drive my truck and agree to go with her. This goes on for three months and I find I have gotten tired of this aspect of our 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 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 after the key again. 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.
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 said something when she reached for the keys a second time—by letting her simply take them and drive away with me without another word would seem to show I consented. After all, her reaching for the key and so on could be seen as requests for consent—I could have said “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. One should not need to repeatedly say “no” just to maintain the “no”, especially when it comes to sex.
Some might reject the truck analogy while holding the original case was rape. One avenue of reply is to argue that the requirements of consent differ in different contexts, which seems reasonable—the challenge is working out the rules of consent. For example, one could argue that sex always requires affirmative consent each time it is initiated and that if consent is withdrawn it must be explicitly restored.
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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