Struggling to Define Rape
Despite the common pretenses of relativism and moral uncertainty among Americans, there yet remain certain moral touchstones that none of us are at all uncertain about. One of these is, of course, that Hitler was evil. Using the Nazis as moral goalposts is so ubiquitous that the internet has described the phenomenon as Godwin’s law: “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.” Another of these moral touchstones, in the West at least, is the fact that rape is about as heinous of a crime as anyone is capable of committing. Before pronouncing judgment, cultural relativists do not first need to dialogue with other cultures past and present which have condoned or even enjoined rape in certain circumstances. Nor do utilitarians first need to scientifically poll rapists and their victims about the relative amounts of pleasure and pain that they’ve experienced. Rape is simply wrong, and we all know it apart from our ethical philosophies. It is therefore curious that rape has become the topic of so much recent controversy.
Part of that controversy is simply those who are well-intentioned but intemperate surrendering to the understandable fear of rapists going without punishment and victims going without vindication. This is a large part of the motivation behind recent attempts to combat rape by revoking the rights of the accused—particularly on college campuses. While the goal is admirable, the means seem to center around 1) facilitating accusations and punishments until their frequency matches blatantly false claims of 1 in 5 college coeds being raped and 2) responding to failures to take accusers seriously by going to the opposite extreme of reflexively believing them. The reason that the accused have such rights (and why we do not call accusers “victims” before guilt has been established) is to protect against the severe harm that false accusations bring. It has yet to be demonstrated by anyone why rape is the one allegation for which the accused are offered no such protection. It is not uncommon to hear claims that false accusations are practically non-existent, but there is no evidence that this is actually true, and plenty of examples to the contrary.
There is, however, a deeper reality behind the fervor to convict, the bogus statistics, and the guilty-until-proven-innocent mentalities. Nowadays, the idea of sexual violation is expressed entirely through the concept of “consent.” However, the ability of this single factor to exclusively undergird our concept of rape is complicated by attempts to divorce consent from every other factor of human experience.
One of the earliest and most famous of these attempts is the “no means no” standard which sought to more firmly establish a woman’s refusal. However, this standard is not without its problems. Though deliberate refusals are what they are and should be treated as such, the standard also promotes a myopia when it comes to the tendencies of many women to be coy and of many men to be boldly persistent—complimentary character traits which facilitate romance and have many innocent incarnations. It also leads to its fair share of absurdities, the most infamous of which is probably the one-free-grope policy feminists were forced into whilst defending some of President Clinton’s alleged dalliances. After all, who is to say that a sexually liberated woman isn’t allowed to enjoy the occasional unsolicited fondle? Surely men need fair warning to the contrary when they try to provide such services. The important thing is merely that the men take no for an answer in the event that they’re told to get lost. Accordingly, this kind of standard not only divorces consent from male-female sexual complimentarity, but also made a mockery of the crime of rape itself.
A more recent attempt to refine and purify consent can be found is Mary Adkins’ response to the suggestion that a woman’s resistance to the use of force play a role in the legal identification of rape. In it, the author suggests that such a standard is unfair because many women do not resist specifically because their relative lack of strength means they probably won’t prevail. In response to an advocate of the force requirement, she writes:
He wants that she should push back, require her rapist to show his full strength so she can accuse him later. Under Rubenfeld’s preferred definition for the law, she should dehumanize herself further for it to be considered a true act of rape (because, by definition, there is no force unless there is resistance). Despite the terrible, visceral knowledge that she is unlikely to win any physical match against him, she has to try and fail.
This response, however, is problematic. First, to describe physical resistance to rape as “dehumanizing” is surely unjust to those who actually have pushed back. Are they really less human for having done so? Though horrible, the red badges of courage earned by those who fought against their violation are surely worthy of more respect than that. Rather than dehumanizing, the character to resist evil even in the face of defeat is one of the bright spots of humanity.
More problematic from a legal perspective, however, is the presumption of violent intent on the part of the alleged rapist. Ambiguous situations are created when weak no’s are intermingled with words and actions that seem to say yes. A physical ‘no’ cuts through that ambiguity and can just as easily result in an end to the encounter as it can in violence. Refusing to give such a clear signal out of fear of a possible future outcome takes a great deal for granted. In many cases, all that is then left to identify a rape are the fears of the alleged victim and a handful of mixed messages. The attempt to cleanse consent from the need for a clear physical manifestation thereof makes it almost entirely subjective. Such is hardly a sound basis on which to condemn someone for a heinous crime—particularly when maintaining a legal presumption of innocence.
Still more comprehensive attempts to distill consent down to its purest form can be found in the recent pushes for affirmative consent laws. By feminist reckoning, the expectation of maintaining an ability and willingness to deliver a clear refusal of sex places too heavy a burden on a woman’s sexuality, and so no-means-no must give way to only-yes-means-yes. But not just any “yes” will do. In order to purify consent, the yes must meet a host of standards to ensure its quality.
The “yes,” for example, must usually be ongoing. In California’s law, for example, “Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.” Furthermore, this revocation cannot depend on a no, but only on continued delivery of the yes, for the law also states, “Lack of protest or resistance does not mean consent, nor does silence mean consent.” The intent here is to divorce consent from any form of commitment. Committing to marriage has, of course, long been seen as far too extreme a requirement to legitimate a sexual encounter. Likewise, so-called long-term-relationships were also deemed too confining. Now it seems that even one-night-stands and hookups constrain the sexuality of a liberated woman beyond all reasonable boundaries. It must be able to be ended at any time for any reason (or for no reason at all) without any kind of notice. In other words, a legitimate encounter can suddenly turn into rape between one thrust and the next without the “rapist” even knowing. Indeed, nothing says that either partner needs to realize it at the time. If recognizing consent requires such cold-sober analysis, then why should it not also be aided by the 20/20 hindsight provided through post-coital reflection? And when last night’s hot dish leaves without even buying breakfast, maybe that’s what it takes to realize that the consent wasn’t pure enough after all.
In some versions of affirmative consent, consent must even be granted anew at each escalation of the encounter. But what counts as escalation? Are there now legally accepted definitions for first, second, and third base? Or perhaps such categories are too restrictive and even harder, deeper, and faster must all count as escalation. Criteria like this divorce consent even from human sexuality itself. Two computers might negotiate a connection for data transfer by explicitly requesting and confirming each step in the process, but this is far removed from authentic human sexuality. Standards like this essentially classify most sexual encounters as rape. They leave the matter of guilt or innocence almost entirely in the decision to prosecute rather than in the act itself. As Ashe Schow recently found, the proponents of affirmative consent laws are unable to offer any suggested means by which the accused could prove that consent was actually granted. Now, this may be precisely what feminism seeks—granting women arbitrary legal power over men—but it cannot be what any just society seeks.
Perhaps the most absurd attempt to distill consent comes from Valerie Tarico who recently wrote about how “rapey” Christmas is. After all, the holiday revolves around God having His way with a young virgin’s reproductive system—a violation second only to His unilateral creation of that reproductive system in the first place without so much as a by-your-leave. I’m sure there are any number of Christian rape-apologists ready to object that the virgin birth (by definition) involved no sexual intercourse in any sense of the term, and that Mary indeed consented—she even sang a song about how wonderful it all was (which is perhaps a little unusual in rape situations.) Though the first point is entirely lost on Tarico, she does acknowledge the latter point about consent. Unfortunately, it doesn’t really count because Mary’s consent was not pure enough. After all, “Mary assents after being not asked but told by a powerful supernatural being what is going to happen to her.” Apparently even God Himself is not allowed to impugn on a woman’s consent by making her an integral part of mankind’s salvation, for this might sway her opinion on the matter. Much like the color-blind are physically incapable of distinguishing red from brown, feminists seem to possess a mental defect that makes them unable to perceive anything other than power and coercion when they encounter things like hierarchy, authority, and even godhood.
The Cost of Reducing Consent to Whim
So what does all this ridiculousness amount to? In their ongoing attempts to purify consent from all outside contamination, feminists have inadvertently turned it into something else. A consent that may flit to and fro from moment to moment and which ought not be subject to any external influences or pressures is, for all practical purposes, indistinguishable from mere whim.
But is a person’s whim even something that is worthy of respect? When critiquing George Bernard Shaw’s worship of human volition in Orthodoxy, G. K. Chesterton observed that “You can praise an action by saying that it is calculated to bring pleasure or pain, to discover truth, or to save the soul. But you cannot praise an action because it shows will; for to say that is merely to say that it is an action. By this praise of will, you cannot really choose one course as better than another. And yet, choosing one course as better than another is the very definition of the will you are praising.” In other words, choice is not meaningful apart from judgment. Now, respecting even poor choices is still a sensible concept, for we treasure the meaningful human capacity to choose better courses of action over worse ones. Whim, however, is a different animal altogether. It does not choose better or worse; it does not really choose at all. It is simply an arbitrary animal impulse. Choices have criteria, but a consent divorced from any other consideration necessarily has none.
Some feminists complain that while parents teach their daughters how to avoid rape, they fail to teach their sons not to rape. I found this puzzling based on my own experience. I was, after all, catechized in the Lutheran church, and Luther’s explanation of the Fifth Commandment included “do not hurt or harm your neighbor in his body” and of the Sixth included “lead a chaste and decent life in word and deed” both of which quite obviously preclude rape. While not everyone was raised Lutheran, most traditions, religious and irreligious alike, include some version of “do unto others…” or even “don’t be a jerk” which also quite obviously preclude rape. It is only when consent is hermetically sealed from anything which might humanize it—when it is reduced into pure whim—that we can fail to recognize such obvious instruction for what it is. It is true enough that many parents do not raise their sons to immediately submit to every feminine whim they might encounter. If failure to do so in a sexual situation is all that defines rape, then one could indeed consider such instruction passed over.
But that is not, by a long shot, all that rape is. Forcing oneself onto a woman against her will is one thing; having sex in a way that does not accommodate momentary whims is something else entirely. Accordingly, understanding rape solely in terms of a dehumanized consent undermines the moral sensibilities upon which the continued criminalization of rape depends. Borrowing a roommate’s blouse without permission is done against consent, but it is trivial. There are no feminists complaining about a blouse-borrowing culture on campus, nor calls to revoke due process for accused blouse-borrowers. The only reason for considering rape to be a particularly heinous crime is because unlike shirts, sexuality is something special and set apart.
But if sex is something special and set apart, then it ought not be treated so casually at all. This brings us back to chastity—precisely the moral virtue that feminism’s myopic focus on consent is meant to bypass. The aforementioned article by Tarico tries to shame Christianity because the Bible “fails” to talk about her dehumanized understanding of consent. The Bible, however, talks about far stronger concepts on which to understand rape: purity, chastity, fornication, propriety, carnal knowledge, and so forth. These are far higher and deeper concepts on which to understand the horror of rape. For example, the Bible talks about sex functionally making a man and a woman “one flesh.” It doesn’t matter whether it is a husband with his wife or a man with a prostitute—sex does what sex was designed to do whether we use it rightly or not. Such an understanding provides one dimension (among others) in which rape is clearly perceived as particularly heinous, for forcibly establishing that kind of intimate relationship with a woman against her will is abhorrent. A grievous wound of this kind can be survived and overcome, but it is what it is and demands retribution. A concept of rape based on mere whim could never plausibly trigger than kind of reaction in the human conscience.
But doesn’t “lack of consent” basically mean the same thing as “against her will?” It could, but not when consent is divorced from every other factor. There is no routine soul-smear by which movements of the will can be scientifically detected; we can only rely on a person’s actions to express her will. The key question in determining beyond a reasonable doubt whether a rape has been committed is therefore whether the alleged victim expressed a refusal to have sex. Answering that question well will always be more complicated than seeing whether a “no” ever crossed her lips at any point or whether a “yes” dutifully crossed her lips at every minute escalation. It requires looking at the nature of the existing relationship between the people invovled, the character of both accuser and accused, the nature of the refusal, evidence of forceful resistance, and so forth. In short, it requires looking at all the very human aspects of a sexual encounter that feminists seek to make off-limits.
Consider, for example, the difference between these two situations: A number of years ago, I remember hearing of a college student who was judged a rapist by his school and treated accordingly. He was involved in some kind of threesome in which he took his turn of consensual sex with his roommate’s girlfriend after said roommate had finished. At some point during the encounter, she informed him that she wanted to go home. He took that to mean “hurry up and finish” and so he said “OK, just a minute” and did so. Unfortunately, what she later said she really meant was “stop this very instant,” and so her partner unknowingly became a rapist. If this should be considered a crime at all, is it really a particularly heinous one? It is entirely fair to ask what that girlfriend even lost from the last couple moments of the encounter other than time. Exactly what harm transpired that requires retribution? Now compare that to, say, the rape carried out by Malcom McDowell’s character Alex and his gang in A Clockwork Orange. There, it is far easier to explain what the victim lost and how she was harmed, nor is there any question of the severity of the act.
No morally sane person could judge these two crimes to be equivalent. They are so far apart that it seems odd to even give them both the same label of “rape.” And yet an understanding of rape based entirely on dehumanized consent is absolutely incapable of making any distinction at all between them, for both violate whim. Neither can one violation be considered greater than the other, for there is no such thing as strong or weak whim. The moment one speaks of a relatively strong whim, one has lent that whim a seriousness that goes against its very nature. Whim simply is what is it is and does not come in degrees.
The intention in conflating these two kinds of crimes is, of course, to extend protection to more women. If rape is all about consent, then the (for lack of a better term) sloppy second thoughts kind of rape described above is as bad as the Clockwork Orange kind of rape. That girlfriend might not need protection nearly so badly as the other victim, but acquiring it is still considered a win by feminists. Unfortunately, that kind of logic cuts both ways. If rape is all about consent, it is just as logical to conclude that the Clockwork Orange kind of rape is no worse than sloppy second thoughts kind of rape.
But could anyone ever think such a horrible thing? Human experience unfortunately says yes. Not all cultures have treated rape as serious, and not all cultures that treat it as serious consider the woman to be the primary victim (think honor killings.) Natural law can be subverted and consciences can be retrained against their own nature. It is entirely possible that our own culture may someday join those ranks. The quickest path to the ignoble circumstance of seriously questioning whether rape is truly wrong is by throwing the falsely accused under a bus and by excessively punishing those involved in the grayer areas. The quickest path to being unable to convincingly answer the question of why rape is even a big deal in the first place is by hanging everything on an increasingly puerile version of consent.
“Rape Culture” is just Unchaste Culture
It is clear that we have problem when women begin thinking that saying “no” is just not worth it. In the aforementioned article, Adkins gives the impression that saying no to an aggressive sexual advance as an almost extraordinary act of strength and bravery that most women cannot muster. So what do they do instead?
In order to avoid victimhood and maintain simple, victimless personhood, women can be extraordinarily, stunningly rational; we can rationalize away acts of violation simply because we don’t want them to have been real. Perhaps if I decide it didn’t happen, it didn’t; perhaps if I decide it doesn’t matter to me, it doesn’t.
Indeed, if whim is all that makes a rape, then avoiding rape is simply a matter of adjusting one’s whims. Think of it as “surprise sex” and its not so bad anymore. The advocates of affirmative consent likewise seem to think that a “no” is beyond the capability of too many women. But whereas feminism inadvertently paints women as being too feeble in mind, body, and spirit to deliver a clear “no,” chastity empowers women to do so by giving them a platform on which to stand which is greater than whim. Chastity highlights the higher values associated with human sexuality and trains people to act accordingly in a way that whim never could. A chaste woman who knows the value of her sexuality can say no to a proposition with confidence. In contrast, a woman who dutifully starts going to town when a stranger at a party pushes her head towards his crotch—who thinks that refusing just isn’t worth the potential trouble—has a shallow and impoverished understanding of her own sexuality.
Chastity also offers women a protection that the law never can. Legal retribution is, of course, a necessity, but it is far better to avoid the need for it in the first place. Much of the drive toward affirmative consent comes from the increasing prevalence of hard-to-prosecute situations such as drunken hookups in which participants were too intoxicated to adequately gauge even their own wills. This is part-and-parcel of a dehumanized sexuality that operates on whim, but the chaste know better than to enter such situations in the first place.
The common rejoinder is that a woman should even be able to walk down the street naked without fear of rape, or dress as provocatively as she wants without fear of provoking an unwanted response. A less-common but actual claim is that a woman should even be able to go to a strange city and a sleep in a strange man’s bed without any sexual repercussions. However valid (or not) one may consider such claims, trading away due process, the presumption of innocence, and even an understanding of the seriousness of rape to secure these abilities is a very poor deal for women and society. The chaste, in contrast, understand the value of propriety because they understand the higher values that propriety is meant to guard. To them, it is no burden at all but simply how one treats her sexuality with respect. None of this is to say that the wanton deserves to be raped—it is merely to say that the wanton has already willingly abandoned protection far better than any affirmative consent law could ever provide for her. It is still good to give her protection, but it is not necessarily a good for which it is worth throwing the rest of society under the bus.
In contrast to the recent over-hyped rhetoric, if there was ever a so-called “war on women,” it was carried out by those feminists who deemed chastity a burden. Their reductionistic and myopic view of rape as the absence of a form of consent from which all trace of humanity has been boiled away does women no favors. There is no rape culture—there is only a culture in which the sexual revolution has so skewed our perspectives that belatedly unwanted gray areas have become a matter of everyday life for women. But broadly expanding the scope of “rape” beyond all good sense is not a viable solution, for if so-called rape truly becomes a matter of everyday life, then it simultaneously ceases to be a big deal in the public consciousness. If women feel sexually disadvantaged in contemporary America, their best bet for improving their position is to do the hard work of reclaiming the virtue of chastity.