Problem with defining rape as absence of consent

1. Introduction

This paper will argue that the concept of consent, as a centre piece to the legal definition of rape, is too problematic to act as a moral and legal pivot-point regarding sexual interactions. I shall argue that it should be replaced by a more comprehensive concept. In section 2, I shall: (a) highlight problems with consent, documented by (among others) Michelle J. Anderson, in her work 'Negotiating Sex'; and (b) argue that using consent as such a pivotal concept in rape law, could prove unjust for the socially inept, because requiring the socially inept to interpret body language accurately in order to avoid committing a criminal act, may simply be an unreasonably thin line to draw for the most socially unskilled among us. In section 3, I shall argue that the problems highlighted in section 2 can be surmounted via the concept of 'negotiation' (Anderson 1421). I shall conclude that while negotiation is not a perfect concept with regard to preventing rape, it is a great improvement over mere consent.

2. Problems with the concept of consent

2.1 Consent as subordination

In the UK and the USA, the concept of consent still plays a central role in the mechanics of rape law. For the UK's definition of rape, the 2003 Sexual Offences Act states, 'A person (A) commits an offence if (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents'. Rape law in the USA is not significantly different, and centres around the same basic concept of consent, though unlike the UK definition, it does not restrict the sex of the rapist, and is altogether more comprehensive: 'The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim' (The US Department of Justice).

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This essay will not focus on physical force in conjunction with the definition of rape, namely, because in the present day, neither UK nor US law requires such a criterion to be met.1 At the time of Anderson writing 'Negotiating Sex', the US Department of Justice defined rape as 'the carnal knowledge of a female, forcibly and against her will'. Anderson highlights two possible reforms to this rape law: the 'no model' (NM) and the 'yes model' (YM) (Anderson 1404). Both models are still relevant for highlighting the problematic nature of consent, despite current law in the UK and the US seeming to depict more intuitively what should constitute rape. Under the NM, the female must withdraw consent by a 'no' or by a violent struggle, in order for any following penetration to count as rape. Under the YM, consent must be given by the female with a 'yes' or by non-verbal means, for any following penetration to be lawful (Anderson 1411). Thus, the NM assumes consent by default, whereas the YM assumes a lack of consent by default. Both of these interpretations have problems which spring directly from their use of the concept of consent as a centrepiece of their mechanics. As Katherine MacKinnon states, 'Intrinsic to consent is the actor and the acted-upon' ('Rape Redefined' 440). Therefore, given that the concept of consent requires one party to submit to another, the concept of consent, itself, implies subordination on the part of the one who submits. Thus, if consent implies submission, and submission implies subordination, then consent implies subordination.

Therefore, given that both NM and YM assume consent is required by some means from (traditionally) the female, and given that consent implies subordination, then both NM and YM either seek to subordinate, or assume subordination by default: in the case of the YM by seeking consent, and in the case of the NM by assuming consent by default (Whisnant). Additionally, neither the NM nor the YM has a built-in means of accounting for common reactions to emotionally overwhelming situations such as the freezing and disassociation linked with peritraumatic paralysis on the part of a victim during a rape (Portugal et al.). Given that this type of paralysis is common in rape situations, it seems the NM (arguably also the YM) allows passivity resulting from a victim's trauma-induced paralysis, to be misinterpreted as actual consent. This level of ambiguity is unacceptable.

2.2 Consent as a danger for the socially inept.

As detailed by Anderson, under the YM, 'a woman’s silence can’t mean 'yes'' (1405). Anderson notes this is how the YM distinguishes itself from the ambiguity of the NM's assumed consent. While the benefit of this difference should be clear, it still leaves a great level of ambiguity as to what exactly can, under the YM, legally be taken as a 'yes'. It is my claim here, that this ambiguity may also create a profound danger for any males who are particularly socially incompetent, as according to this understanding of consent, a potential mis-reading of a female's body language could result in a socially incompetent male, committing rape that he was effectively unaware of committing in the moment. If my claim is valid, then both the NM and the YM seem to make it likely that socially incompetent individuals (whose perception of morality may begin and end with a basic understanding of the law, together with basic-level emotional communication) may actually be primed to commit immoral acts (such as rape and sexual assault) by an ambiguous concept of consent. Adolescents and young adults, who otherwise have no immoral predilections, could potentially find themselves committing terrible acts such as rape, through nothing more than the misreading of social and emotional cues. These young males may not have exposure to complex views of rape from the first-hand perspective of those who have suffered it; nor considered the life-derailing consequences such an act has on its victims. If these males are below 25 years of age, then they still do not have a fully developed, prefrontal cortex (the part of the brain correlated with rational behaviour and self-control), and thus, are less able to use self-control and restraint (Casey & Caudle). Adolescents and young adults are also far more predisposed to risk-taking behaviour than either younger children or older adults, and they favour potential rewards more heavily than they fear potential losses (Duijvenvoorde & Crone). Given the physical underdevelopment of the prefrontal cortex, and the cascade of hormones in young adults, which cause the behavioural differences mentioned above, ambiguity in the concept of consent could lead the emotionally inept to misread body language with horrendous consequences. For this reason, rape law should be re-engineered to protect not only potential victims, but also those emotionally and socially inept enough to guide their actions solely by the letter of the law. Perhaps such a mixture of legal ambiguity combined with social and sexual ignorance, is to blame for some of the shocking attitudes expressed by teenage males on US university campuses as demonstrated by a study in which 81 male students were asked if they had any conscious intention to elicit sex from a woman by force at any point in the future, to which 31.7% said they did (Edwards, Bradshaw & Hinsz). These shocking attitudes, and others like them, have led to the term 'rape culture' being used widely in recent years (Boswell & Spade; Burnett, Mattern et al.; Rentschler). It has been claimed that such attitudes can be linked to the negative depiction of women in popular culture, media, erotica, and pornography (Dworkin, Pornography; MacKinnon, Feminism Unmodified), however, opinion on this is by no means unanimous, due to confusion between the categories of erotica and pornography, which has led to inconclusive results in studies (Padgett, Brislin-Slütz & Neal).

3. Surmounting the problems of consent

Given that consent seems so problematic, it would seem logical to create a new concept to circumvent such moral issues. Indeed, Anderson's purpose for highlighting problems within the NM and the YM, was to argue for a new conceptual centrepiece in the operating definition of rape; a concept that she called 'negotiation' (Anderson 1407). Negotiation differs from consent in being an ongoing and interactive process that begins before intercourse and continues on through it. Anderson's description of 'negotiation' (1421) aligns with the Oxford English Dictionary definition of the word: 'To hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement' (Oxford English Dictionary 302-303). Negotiation as a necessary requirement of lawful penetration, would seem to provide a way by which emotional immaturity could be detected in an individual, prior to them causing devastation to another via a sexual encounter. Given that the majority of rapes committed in the UK are by a male known to the victim; and more than 40% are committed without the use of physical force; while 18% are committed when the victim is asleep or unconscious ('Sexual Offences in England and Wales' sec. 7-8); it seems that a process such as negotiation would be of great help in avoiding such destructive sexual interaction, as it may, prior to a crime being committed, give the non-malevolent, socially ignorant perpetrator a window into the mind of the person who would otherwise become their victim. However, negotiation would still leave some problems unsolved. For example, consider a 'he said/she said' situation. While sexual negotiation would seem to be a good measure to stop socially inept people from unknowingly violating the boundaries of others, after a rape has been committed and the case goes to court, short of having an audio recording of the negotiation, it would seem to be as hard to prove negotiation or the lack of it, as it would be to prove consent or the lack of it. Additionally, it may be noted that in particular circumstances such as intoxication, unconsciousness, and duress, both consent and negotiation can reasonably be assumed to be illegitimate. Thus, negotiation would seem to have many (if not all) of the same situational defeaters as consent.

Moreover, it is not clear that negotiation would be required for couples in long-term relationships in which sexual boundaries are known. From an intuitive perspective, it may be felt that inside a long-term relationship, the NM in combination with the YM could become the preferred model of sexual navigation. As preferred patterns of sexual action become established between individuals and they come to know their partner's preferred sexual patterns, it may be assumed that A is a good enough judge of B so that A can infer consent from B until such time as it is rejected by B if A is wrong. Anderson admits as much and posits that negotiation may not be necessary for long-term couples (1426) but should be required for first-time or new sexual relationships (1425). It seems, that negotiation despite not being perfect, levels the sexual playing field somewhat, in that it does not assume anything about either sexual partner's state of agreement to any sexual activity.

As well as negotiation being an advantage for females, negotiation also provides socially and emotionally inept males the chance not to commit a deeply horrible act before their brains have had a chance to develop fully. In this respect, making negotiation a sexual, social, and legal norm, could act as a mechanism to prevent actions being committed that could prove life-destroying for those involved.

4. Conclusion

In section 2, I showed that because consent implies subordination, definitions of rape centred on consent, implicitly subordinate females. I then, showed that because legally, consent need not involve discussion between sexual partners prior to penetration, this leaves socially and emotionally inept males (and females) at the mercy of their underdeveloped brains. In section 3, I showed that these problems can be surmounted by replacing consent with a discourse-based norm such as Anderson's 'negotiation'. The introduction of such a norm would: (a) prevent the default subordination of females, by ending the legal requirement for submission via consent, prior to penetration, and (b) protect the emotionally and socially inept, from misjudging a sexual situation and costing themselves and their sexual partner a great deal of well-being. Thus, while Anderson's negotiation does not stop bad people from doing bad things intentionally, it may stop good people from doing bad things inadvertently.

Works cited

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