Problems with consent

I'm going to stretch myself into an area in which I usually don't write -- legal philosophy. I have no real training in the area, though I've been reading some feminist legal philosophy (MacKinnon and Nussbaum). Hopefully the lawyers in the crowd can point me in the right direction when I inevitably stray off the path.

The feminist blogosphere has been talking a bit about a notion recently promulgated in book and Cosmo-interview form by one Laura Sessions Stepp, a staff writer at the Washington Post. The notion is `gray rape' -- sexual encounters where it's not entirely clear whether there really was consent. Here's a passage from Sessions Stepp that's circulating as an illustration:

Oh, the gray area -- that insidious "if I hadn't gone to that party" place, that "if I had only stopped after one beer" place, that "if I hadn't worn such a revealing top and come on to that hot guy" place where young women go when someone they probably know lays siege to their most private parts and everyone assumes it was at least partly their fault. More than half the time, they're drunk and can't remember details, and most of the time they don't press charges .... some defense lawyers and even some students have taken to calling such episodes "gray rape" out of a mistaken belief that when both parties have been drinking heavily, responsibility for what happened falls into a gray area.

Session Stepp's work is controversial mostly because -- as one can probably tell from the passage above -- she blames `gray rape' on the young women who are going to the parties, drinking too much, wearing revealing clothes, and coming on to the hot guys. I think the feminist bloggers are right to attack this etiology. Session Stepp is straightforwardly blaming the victims for their assaults.

But are they assaults? One thing that seems to have gone mostly unexamined is the idea that responsibility and consent are murky in these sorts of cases. The writers that have looked specifically at this aspect just seem to reject it, as Echidne does here, as an attempt to inappropriately muddy the waters. Note that Session Stepp herself calls the belief that `responsibility for what happened falls into a gray area' to be `mistaken' in the quotation above.

I'm not so certain this is the case. Sexual assault law usually defines rape as nonconsensual sexual penetration, and recognises a notion of implied consent or reasonable consent -- consent need not require an explicit `yes', and denying consent need not require an explicit `no'. But what counts as reasonable? MacKinnon has pointed out that, until very reasonably, anything short of resistance `to the utmost' -- usually, a struggle to escape or death -- was considered as consent under the conventions of `reasonability'.

This definition of rape has other problems. It assumes that a sexual encounter has a very specific structure: the advances of an active penetrator are either accepted or rejected by a reactive penetratee. The agent is not required to give consent; indeed, the idea of the agent denying consent to the encounter is logically incoherent. It is, in particular, incompatible with a model of two autonomous sexual agents, both consenting, coming together in a sexual encounter. And the assumption that the penetrator is the sexual agent is clearly dubious.

Finally, rape as defined in this way is discontinuous with sexual harassment. As both rape and sexual harassment are based on the use of sexuality to humiliate and dominate another, the two should be continuous notions, at least linked with each other in recognition of their similarity of structure.

Thus, I suggest the following definition, to replace `nonconsensual sexual penetration' as the basis for sexual assault law.

Rape describes any sexual encounter in which one or more parties lack real control over the encounter.

Let's walk through the definition

First, `sexual encounter' is vague. But this vagueness is necessary to cover the gaps left by the standard definition's use of penetration. Rape need not involve penetration, after all -- forcing a male to masturbate himself at gunpoint, for example, ought to qualify as rape. Lesbian theorists have long decried the phallocentrism of penetrative definitions of sexuality, but I am not familiar enough with any adequate positive proposals to deploy one here. Suggestions are most welcome.
Second, a sexual encounter may involve two, three, five, or ten parties. My definition does not presume what, following MacKinnon, I call the `subject-verb-object' model of sexuality, on which Man fucks Woman. All the parties in a sexual encounter are regarded as potential sexual agents. The question is whether or not they actually have agency in the encounter.

The third and central component of the definition is the notion of `real control'. This might also be called `actual agency'. A participant in a sexual encounter, for the encounter to not be described as rape, must recognise that she has the ability to exercise control over the encounter. In the first moment, this means she must be able to end the encounter easily and completely. This means any level of incapacitation, whether physical or pharmacological, makes the encounter rape. Likewise, the presence of any coercive factors -- from an explicit threat of grievous harm to verbal wheedling -- make the encounter rape.

It may be objected that I have cut far too broad a swath through the field of human sexuality. Consensual BDSM (Bondage-Domination-Sadism-Masochism) encounters can be immensely sexually satisfying to all parties. Am I not inappropriately ruling these out by explicitly forbidding physical incapacitation, as in the last paragraph?

This objection vastly oversimplifies BDSM practices. The first habit any responsible practitioner of BDSM learns is the use of `safewords' -- vocalisations or other indications that allow any participant, at any time, to easily and completely terminate an encounter. Responsible BDSM, in contrast with its name, is about creating an illusion of domination and torture, and simulating submission and servility. In reality, all parties to a responsibly organised BDSM encounter are autonomous sexual agents, in complete control of the encounter.

This point is one of two critical aspects of the central notion of real control or actual autonomy. BDSM, on my analysis, involves pretending to strip an agent of her or his autonomy, while actually (and explicitly, in the negotiations that take place beforehand) maintaining it. The second critical aspect is that mere formalities of control and autonomy are insufficient. A petite, scantily-clad woman in an unfamiliar neighbourhood may technically be able to leave, but the unknown threats to her safe return home could easily outweigh the more obvious threat of unwanted sex.

Let us return to the notion of `gray rape'. In cases of `gray rape', intoxication and other factors make ascriptions of consent problematic. On my definition, this issue falls out as only indirectly relevant. Consent is neither necessary nor sufficient for a sexual encounter to qualify as non-rape. All that is required is for every agent involved to have control over the situation. In practice, this amounts to a straightforward empirical determination of what coercive factors were in play in a given encounter, from intoxication and threats of force to psychological manipulation and geographic familiarity of the alleged victim. (This would mean that rape cases would be easier to evaluate, if not easier to actually prosecute -- the evidence is entirely empirical and objective, and not dependent on biased testimony of subjective impressions.)

Finally, `reasonable' standards of `implied consent' do not lead to the guilt that Sessions Stepp connects with gray rape. If rape is defined as a lack of control over a situation, then it is impossible for the victim to be in any way responsible for her assault. She did not `lead him on' -- imply consent to a sexual encounter -- by flirting or wearing a skimpy outfit or anything else. Even explicit consent to the encounter is not immediately relevant according to my defintion. Explicit consent can be an indication that actual autonomy is being enjoyed by all participants, but it is not automatically taken to be so.