Presupposition and Consent

I argue that “consent” language presupposes that the contemplated action is or would be at someone else’s behest. When one does something for another reason—for example, when one elects independently to do something, or when one accepts an invitation to do something—it is linguistically inappropriate to describe the actor as “consenting” to it; but it is also inappropriate to describe them as “not consenting” to it. A consequence of this idea is that “consent” is poorly suited to play its canonical central role in contemporary sexual ethics. But this does not mean that nonconsensual sex can be morally permissible. Consent language, I’ll suggest, carries the conventional presupposition that that which is or might be consented to is at someone else’s behest. One implication will be a new kind of support for feminist critiques of consent theory in sexual ethics.

Bestiality

The focus of this chapter is on bestiality, involving sex between humans and nonhuman animals. Some animal rights and feminist scholars have suggested that bestiality should be thought of as a form of nonconsensual sex. But to do so presupposes that animals can be harmed or wronged within the meaning of the liberal harm and wrong principles, which is far from clear. And even assuming that it does make sense to think of bestiality as involving nonconsensual sex, it needs to be asked if there is a coherent justification for criminalizing such conduct while so many other serious harms and wrongs to animals, including with respect to their sexual functions (such as breeding, neutering, spaying, and castrating) go unrestricted. Central here is the question of whether bestiality fits within the narrow sliver of animal mistreatment that is, under current law, considered sufficiently cruel to merit criminalization.

Rape by Deceit

This chapter considers the offense of rape by deceit. Unlike rape as nonconsensual sex, consent here is communicated but is found to be defective by virtue of the complainant’s false belief, typically induced by the defendant’s deceit. Should it be rape if a defendant falsely represents himself as being free of STDs? What if he obtains communicative consent by falsely claiming to be single? The common law was extremely limited in what it recognized as impermissible deceit. With the reconceptualization of rape as nonconsent-focused, reformers have begun considering the possibility of broadening the definition of rape by deceit. But how broad is too broad? The problem is that almost everyone, at some point, has engaged in or been the target of some form of deception in the context of sex, and any of these deceptions could serve as a “but for” cause of another’s consenting to sex. The question is how to sort out those deceptions that should count for purposes of rape (or another, lesser offense) and those that should not. The particular focus here is on cases in which a defendant obtains invalid communicative consent through fraudulent medical procedures, impersonation, or lying about matters related to STDs.

Rape as Nonconsensual Sex

This chapter considers rape in its most basic form, referred to here as rape as nonconsensual sex. In theory, a legislature could simply define rape as “nonconsensual penetrative sex” and leave it to factfinders to determine if the evidence presented was sufficient to support the charge. But such a definition would probably be too open-ended to give potential offenders, law-enforcement officials, and courts adequate notice and direction; and for this reason, there has been an attempt to articulate more specific conditions under which rape as nonconsensual sex occurs. The question is how to do this in a way that is neither under- nor overinclusive. The chapter considers three approaches the law has taken to defining such an offense: as obtained by force, in the face of a no, and in the absence of affirmative consent, paying particular attention to concerns about under- and overinclusiveness. The chapter also includes a brief discussion of rape law’s mens rea requirement and the availability of the mistake-of-fact defense.

Autonomy and Consent

This chapter considers the concepts of sexual autonomy and consent. Sexual autonomy is conceived of as a “bundle” of prima facie rights organized around the idea of securing for the holder various forms of sexual self-determination. There is a distinction between negative sexual autonomy (the right not to engage in, or be subject to, one or another form of sexual conduct) and positive sexual autonomy (the prima facie right to engage in such conduct). Sexual autonomy is violated either when a person is subjected to nonconsensual sex (usually by another individual) or when a person is prevented from engaging in consensual sex (typically by operation of law). To consent to sexual contact is essentially to waive the right not to have such contact. Consent also relieves those to whom it is given of the obligation to refrain from contact. Consent involves a “binary” judgment reflecting various “scalar” qualities (meaning that it is a yes/no kind of judgment that typically turns on the existence of a property that is a matter of degree). Of particular concern here is the distinction between consent and mere “unwantedness.” A fundamental distinction is also made concerning consent in an “attitudinal” or “mental” sense (a state of mind of acquiescence), consent in a “communicative” sense (consent that is conveyed to another in words or actions), and consent in a “prescriptive” sense (consent that is regarded as normatively or legally valid). Further, for consent to be prescriptively valid, it must be voluntary, knowing, and competent.

Pausanias’ Careful Language of Sexual Violence

This article considers the vocabulary of sexual violence in the Periegesis Hellados. The vocabulary of sexual assault in the Periegesis encompasses the related noun and verb pairings ἁρπαγή and ἁρπάζω, αἰσχύνη and αἰσχύνω, βία and βιάζω, and ὕβρις, ὑβρίζω. All denote ‘rape’ defined as ‘nonconsensual sex’ (though matters of consent are sometimes ambiguous), but they are not used interchangeably in the text. Several patterns emerge from this analysis: first, the language of violence and sacrilege correlates with suffering in Pausanias’ usage, so the more explicitly violent and transgressive the sexual assault, the more likely it is that aspects of the victim’s experience and agency will be included in the account. Second, racial formation is a key operator in the narratives of sexual assault, so Greek stereotypes about barbarian alterity are amplified in the representations of rape in Pausanias’ text.

Does the Stigma of Hooking Up Predict Sexual Assault at College?

This study examines the relationship between the stigma of hooking up and reported sexual assault. Guided by Goffman’s (1963) social stigma theory and Gagnon and Simon’s (1973) sexual script theory, I propose that 1) the more strongly the respondent agrees he or she would disrespect women who hook up frequently, the fewer times he or she reports nonconsensual sex; 2) the more strongly the respondent agrees he or she would disrespect for men who hook up frequently, the fewer times he or she reports nonconsensual sex; and 3) the more strongly the respondent agrees he or she would be less interested in someone who hooks up frequently as a boyfriend/girlfriend, the fewer times he or she reports nonconsensual sex. Using the Online College Social Life Survey data collected between 2005 and 2011, I analyze the attitudes about and reports of sexual behaviors in a non-probability sample of 16,914 students at 21 U.S. colleges and universities. Controlling for sex, age, current religion preference, and Greek affiliation, disrespect towards women who hook up frequently is positively and significantly related to fewer reports of nonconsensual sex. However, the results do not support the second and third hypotheses as there is no statistically significant relationship between disrespect towards men who hook up frequently as well as the lack of interest in people who hook up frequently and the incidents of reported nonconsensual sex. The findings suggest that the efforts to reduce the stigma of hooking up should be taken into consideration in rape prevention programming.