Scott A Anderson. Ethics. Volume 127, Issue 1. October 2016.
I. Introduction
Several prominent theorists have recently advocated reconceptualizing rape as “nonconsensual sex,” omitting the traditional “force” element of the crime. I argue that such a conceptualization fails to capture what is distinctively problematic about rape for women and why rape is pivotal in supporting women’s gender oppression. I argue that conceptualizing rape as coerced sex can replace both the force and nonconsent elements and thereby remedies some of the main difficulties with extant definitions, especially in recognizing “acquaintance” rape as such. I argue that this approach helps explain its distinctive badness both for the individual victims and for women as a group.
Wrongful sex acts have long been treated as particularly problematic by states and societies, though there have been significant disagreements and changes in Western society’s ideas about what exactly is wrongful and why. In the last 50–100 years, in particular, the changes have gone in contrasting directions. Broadly speaking, the legal regulation of sexual conduct has been liberalized, and laws of places like the United States now permit much sexual activity that they formerly prohibited. However, the trend with respect to some sorts of problematic sex has moved in the opposite direction, toward more encompassing prohibition. While there has been a crime called “rape” in England and English-derived legal systems for hundreds of years, there have been dramatic changes in the law of rape over these centuries. Many recent changes have come in the wake of arguments by feminists and other advocates for women who seek to maintain the prohibition of the acts that were previously prohibited, while expanding the concept of rape to prevent more kinds of similar predation and making the prosecution of such offenses easier.
The shifting conceptualization of rape has not left things as they were—which has generally been acknowledged to be a good thing. But the possibility of rethinking the nature of the crime of rape can be unsettling in that it raises the possibility that we don’t yet know for sure what we are talking about when we talk about rape, nor do we agree about the extension of the concept. Since any legal standard will apply to and be implemented by people with diverse views about proper sexual conduct, law in this area needs to be grounded in views shared across a wide swath of the population, or else it faces a serious risk of nullification by underenforcement and/or injustice through uneven and unpredictable enforcement. The well-known difficulties in getting authorities and juries to enforce the laws as they are currently drafted, and the fact that they fail to apply to many recognizable rapes, would seem to indicate that the current standard for identifying rape and explaining its wrongfulness have not quite latched onto the essence of the crime or any popular consensus about it.
Though there are many ways in which sexual conduct can be ethically faulty, not all of these ethical failures are equally problematic or equally appropriate for legal prohibition. Law and its attendant enforcement powers are fairly crude and often clumsy ways of setting ethical boundaries and protecting the various interests individuals have in one another’s conduct. So we should not attempt to regulate by law all of the various ways people may wrong one another through sexual conduct. Articulating a rationale for prohibiting rape involves conceptualizing it in a way that tracks fundamental interests people have in protecting themselves from harmful conduct by others and in organizing society in ways that foster social equality for all members. Let us focus for a moment on situations in which a person uses force or violence or threats of such to compel another to submit to sex or has sex with someone incapacitated and thereby unable to refuse or resist sexual activity. Even in such cases of clearly wrongful conduct, there are likely to be a variety of ethical wrongs committed and harms caused to the latter person and various ways to describe what is wrongful in them. Beyond these clearest cases of rape, there are many other ways in which people may impose themselves on others sexually that should be prohibited by law, though the difficulty of conceptualizing the wrong involved in these cognate cases grows the more they vary from the most stereotypical cases. The main question for this article, as it has been for many theorists in this area, is how to conceptualize rape in a way that is useful for codification in the criminal law and that is tuned to its wrongfulness. I will argue that law should focus on the rapist’s use of coercion, which is different from, though a useful generalization of, the current standard which focuses on a rapist’s use of force, violence, and threats of the same. In making this case, I will also argue for eliminating the victim’s nonconsent as a distinct element in the crime, though a defendant may raise the victim’s consent to his actions as an affirmative defense at trial. This conceptualization of rape is intended to identify the most problematic aspects of the activity in a way that makes them perspicuous, makes it possible to draw principled distinctions between more and less egregious offenses, and avoids some of the practical difficulties that recent alternative reform proposals generate.
After surveying somewhat more fully the current context surrounding debates about rape, I will give a brief picture of a coercion standard of rape and distinguish it from the current standard and the main competing reform proposal, which is to identify rape with sex to which the victim did not consent. Sections III–V survey the strengths and weaknesses of treating rape as nonconsensual sex, concluding that this conceptualization fails to provide an understanding of the nature of rape that can both distinguish appropriately between more and less serious sexual offenses and explain the role that rape plays in supporting male gender dominance over women. In Section VI I elaborate the understanding of the concept of coercion at work in this essay and explore in Section VII its advantages as a legal standard for rape in comparison to its rivals.
II. The Current Context of Debates about Rape
“Rape” is both a legal concept and part of common parlance, and as with many other ordinary language terms, there is significant variance in usage and understanding. Even in places such as Canada that have stricken the term “rape” from their criminal codes and replaced it with “sexual assault,” the concept of rape is still much used in ordinary discourse (e.g., about “rape culture”). My aim in this article is to motivate change to the legal definition of rape in a particular direction, one that reflects popular understanding of the crime (though not to encompass all variant views). But this situation leaves me in the uncomfortable position of referring throughout to a collection of acts as “rape,” as though we already all agree on what we mean and which acts we’re talking about, while at the same time urging that at least some parties (in particular, those who are in a position to pass and enforce laws) change the way they define the term. I will proceed on the assumption that there is broad agreement about at least a significant core set of cases that should be regarded as “rape” and that the wrongfulness of such actions is not in dispute (though the best or complete explanation of their wrongfulness may be subject to dispute). These include such acts as the use of violence or the threat of violence to induce participation in certain sexual acts, and acts whereby one person incapacitates another by means such as drugging or intoxicating her without her knowledge and affirmative preapproval and then has sex with her, or when a person finds another in such an incapacitated state and without her sober, affirmative preapproval has sex with her. A definition that ultimately encompassed no more than these cases would fail to protect people from many similarly egregious sexual impositions, so I will not ultimately restrict the concept to covering just such cases. But these are ones about which there is little contention, and so any definition will need to capture at least these, and thus they provide a reasonable starting place for discussion.
Rape is a persistent problem in societies like the United States and United Kingdom, directly affecting a significant portion of the female population. Self-reports of rape indicate that nearly one-fifth of US women today have suffered rapes; rates of a similar order of magnitude are reported in Canada and England. Rape is usually a devastating event for the victim, a fact that has long been acknowledged (though the reasons why it has been regarded as so damaging have also changed over time). It can undermine a victim’s happiness, sense of self, security, and relationships with others to an extent that few other sorts of events do. But rape is also a crime that affects women as a group in ways that few other crimes affect groups differentially. Because of its high rate of incidence, and devastating effects, it conditions the lives of women in myriad ways and gives rise to fears, precautions, and stereotypes that disadvantage many women who have never themselves been the direct victims of the crime. Although there are male victims of rape, there is no similar effect of those particular assaults on men as a group. Hence it is fair to describe rape as a gendered crime, in that it is almost entirely perpetrated by men, predominantly against women, with damaging effects both on individual women victims as well as on women as a group.
Despite its prevalence and immense impacts, many acts of rape are difficult to prosecute and convict, hence few of those who have committed rape are tried for an offense, and many fewer still are actually imprisoned for their crimes. One significant reason for the lack of enforcement and punishment for rape is that the laws and traditional norms reflect a conception of the crime—a violent attack by a stranger—that occurs considerably less frequently than do assaults by acquaintances (including friends, relatives, dates, and intimate partners), which typically involve no weapon or overt threats of significant harm and minimal physical brutality. Such “acquaintance rapes” are often similar to much more violent rapes in the psychological damage they cause their victims, though they are often difficult to depict convincingly as involving force or the threat of force.
Rape was criminalized in English common law, which according to Blackstone’s commentaries defined it as “carnal knowledge of a woman forcibly, and against her will.” According to David Bryden, the law of rape up until recent reforms defined the crime as “(1) sexual intercourse; (2) between a man and a woman who is not his wife; (3) achieved by force or a threat of severe bodily harm; and (4) without her consent.” The limitation of the crime to nonmarital relations (the “marital exemption”) has now been largely stripped from the law, as have the gendered assumptions about attacker and victim, and statutes have been broadened to include penetrative acts besides intercourse. But this traditional definition otherwise continues to hamper prosecution of acquaintance rape, as “in the great majority of states, unless the victim was underage or incapacitated, the prosecution must prove both that the intercourse was non-consensual and that it was obtained by force (or a threat of force).”
In light of the observed difficulties in using the law to secure protection for victims of rape and convictions of their attackers, a number of prominent philosophers and legal theorists have argued in favor of further advancing the reform of rape laws. Advocates for reform have been particularly critical of the dual and seemingly redundant conditions that are required: that it be sex involving “force” and also “without the consent” of the victim. While some sixteen states and the District of Columbia now criminalize nonconsensual sexual penetration without an element of force, they generally treat such acts as lesser offenses, with half of them categorizing it as a misdemeanor. Nearly all current advocates for reforming rape laws seek to remove the force condition, leaving just the element of nonconsent. They hold that the lack of consent best explains what is wrong with rape and suggest that a legal standard expressed in terms of a victim’s nonconsent to sex provides more robust protection for women than the current statutory language. As Stephen Schulhofer puts it, “analysts searching for a single organizing principle had to recognize that legally, the gist of rape was not force but nonconsent. The MPC commentaries state that ‘[t]he law of rape protects the female’s freedom of choice’ and that its ‘unifying principle … is the idea of meaningful consent.’ Perkins goes even further, excluding force from the formal elements of rape, which he defines simply as ‘unlawful sexual intercourse with a female person without her consent.'” This conceptualization would also help to connect a variety of different immoral impositions that can be made against a sexual subject, some of which undermine sexual autonomy in ways unrelated to force, violence, or threats thereof.
I will elaborate the strengths and weaknesses of the definition of rape as “nonconsensual sex” over the next several sections. I want briefly, however, to highlight two possible alternative approaches, which I’ll label the force and coercion approaches. When reform advocates have criticized the historical definition of rape, they have been particularly critical of the requirement that force be in evidence for an act to count as rape. Indeed, this condition was in much earlier times thought to be very important, since it was held that a woman’s chastity should be treated as so valuable that a virtuous woman would fight to her utmost rather than surrender to a rapist. This then created an evidentiary standard for determining whether a rape was committed: if there was no evidence of a struggle or attempt to fight off her attacker, one could assume that the woman did ultimately acquiesce to have sex with her attacker, at which point it no longer fell afoul of the law. This standard clearly put women in a very dangerous and unfair position, and hence there is general and appropriate disdain for the force standard, so conceived.
However, contemporary unreformed statutory language does not exactly require evidence that force itself be used, since it holds that rape can be committed by either force or the threat of force, bodily harm, and the like. Laws and commentators who discuss this element of the law often conflate “the threat of force” and the “use of force” under umbrella terms such as “forcible” rape, though they are not the same. For one thing, evidence that one has been subjected to a credible threat of force is likely to be much different and more insubstantial than evidence that one has been subjected to significant force. Laws that encompass threats of force (inter alia) for sexual aims in the definition of rape may be said to associate rape with the use of coercion. Of course, the direct use of force in order to have sex with someone can also be described as coercive, so the term “coercion” here can with little strain be used to encompass both these sexual impositions.
The term “coercion,” like “rape,” has broad usage in common parlance and has been subject to numerous scholarly attempts to explain what it involves. While I am dubious of much of this work (for reasons I explain briefly below), there is a way of making out the meaning of the term that has both a long history in Western political philosophy and fits well with a number of desiderata for philosophical analysis. The approach I will elaborate in Section VI holds that coercion is best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging. When a party demonstrates an ability and willingness to use such means against another, that party is then in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make. If this picture of the structure of coercion is on track, then we can go on to consider how the concept might capture cognate cases involving the use of more subtle or constructed forms of power—a possibility to be explored below.
In conceptualizing rape as coerced sex, I draw upon the fact that some kinds of people (one such kind being men) enjoy an advantage in the relevant sort of power over other kinds (e.g., women) that allows some of them to impose sexual demands with reasonable expectations of securing compliance with them. I will argue that this picture helps explain why rape has the devastating effects on its victims that it often does, why it is so robustly gendered (male assailant, female victim), and thus how it plays a central role in enforcing a male-dominated gender hierarchy. This understanding should then help police, prosecutors, judges, juries, and the general public recognize and understand a highly persuasive rationale for criminalizing the activity and punishing those who engage in it. Given that in places like the United States it proves very difficult to get police to arrest, prosecutors to charge, and juries to convict assailants for rape and sexual assault, I believe it is highly desirable to define the crime in a way that makes manifest, to the extent possible, why it is wrongful. In at least this area, tuning the definition of the crime to the way the perpetrator wrongs the victim should help combat the significant ongoing underenforcement of the prohibition of rape.
III. Rape as Nonconsensual Sex
In the realm of sexual conduct, individuals should, by default, be able to expect social protection against sexual impositions on their bodies by others, such as undressing, touching, or penetration. But rational adult individuals are also in general able to allow others to engage in sexual activities with them by waiving their claim to protection through the legal act of granting consent to those others whose activity they would allow. In so doing, they then change the legal status of acts to which they have granted consent, from prohibited to permitted. It is reasonable to associate these two sides—the “before” and “after”—of the legal function of consent with two complementary aspects of autonomy, as Alan Wertheimer has done: “To say that sexual relations are legitimate only if B consents is to protect the negative dimension of B’s autonomy or control of her life. … [T]o say that sexual relations are (prima facie) legitimate if (and not ‘only if’) B consents is to endorse the positive dimension of autonomy, the notion that people should be permitted ‘to seek emotional intimacy and sexual fulfillment with willing partners.'” Wertheimer argues that an individual’s sexual autonomy is protected by a variety of prohibitions on the sexual conduct of others in the absence of one’s consent to them; but is facilitated also by the ability to give others consent to perform those acts, perhaps as part of a larger bargain or exchange of rights. As Wertheimer sees it, social respect and protection for individual nonconsent and consent to sex are the means by which society promotes the value of autonomy. We might also see respect for a person’s nonconsent as essential to fostering people’s sexual integrity. David Archard argues that, given a proper understanding of the place of sexual activity as a core human interest, “rape is wrong because it denies that [the victim] is, in regard to what is central to her personhood, worthy of respect. … [R]ape subverts the person for whom agency matters and has value. If rape defined as [nonconsensual sex] is seriously wrongful, this is not because it is a fettering of the achievement of our goals, but rather because it is, in the sense indicated, ‘dehumanizing’ and ‘soul murder.'” Given that rape is widely seen as a violation of sexual autonomy and sexual integrity, if the link between the violation of consent and these harms can be clearly established, then there would be good reason to define rape as nonconsensual sex.
Independently of these matters, there are several practical advantages that might be realized by adopting a legal standard that construes rape as sex without consent and eliminates reference to force. For one thing, though it can be difficult in some cases to discern whether or not valid consent has been given to sex, there are many cases in which it can be clearer whether such consent has been given than whether an assailant has used force to a problematic degree. A consent standard could be made even more perspicuous if law were to establish an overt rubric for determining the presence or absence of consent. For example, if the law came to hold that overt speech acts can dispositively determine whether a party has consented to sex—that is, that “no” means no, or even that only “yes” means yes—then it is likely that it would be easier to obtain agreement about whether such laws have been violated than it is at present. Even today, when there is no longer a legal requirement for a victim to offer stiff resistance to count as having been assaulted, there is still a tendency among many people to view rape complaints skeptically and to regard victims as having consented at the time of their alleged assault, only to change their minds (or to deliberately abuse the law) after the fact. If law could clearly revise the presumption of consent to sex from “yes” to “no,” and thereby bolster the social norm that “no” really does mean no, then among other benefits, doing so would normalize the understanding of sex crimes with respect to other sorts of assaults.
Taking nonconsent as the legal standard for rape is also advocated for the sake of unifying a range of immoral sexual impositions under a single theory, showing a common factor to them. For instance, a number of kinds of acts are widely regarded as rapes, including taking sexual advantage of someone who is physically or mentally incapacitated, or drugging someone first and then doing so, or an adult having sex with a minor. A different range of cases of morally impermissible sex include inducing someone to engage in sexual activity under various sorts of false pretenses. Such cases may include misleading a victim as to the nature of the activity engaged in (for instance, causing her to believe that she is receiving a medical procedure when in fact she is being sexually violated); misleading a victim with respect to the identity (or certain personal data, such as one’s religion, ethnicity, or marital status) of the person she willingly has sex with; or misleading her with respect to various aspects of sexual activity (such as whether one will wear or is wearing a condom or using birth control pills, whether one has had a vasectomy, or whether one is infected by any sexually transmitted diseases). If rape is conceptualized as nonconsensual sex, then all of these immoral activities can be treated as legally similar, thus simplifying and unifying the grounds for their common prohibition.
IV. Difficulties with Conceptualizing Rape as Nonconsensual Sex
Despite the apparent benefits of the nonconsent standard and its potential advantages compared to the traditional standard for defining rape, I am unconvinced that the overriding of consent explains what is so devastatingly harmful to (most) rape victims, or why rape is an especially important underpinning of the systematic gender-based oppression of women. Based on these considerations, I will argue that one cannot adequately appreciate or accurately identify and deter with specificity those acts that are most devastating and pernicious to women by defining rape principally in terms of nonconsent.
One issue which I will largely set aside is that there are difficulties in determining exactly what is meant by “consent” in law, and in particular whether the term should be understood as a mental state or as an expressive external act (or some hybrid of the two). Given that part of the legal function of consent (and the withholding of consent) is to give fair notice to others as to what they may (or may not) lawfully do, there are strong reasons in favor of treating consent as an expressive act. Considerable legal difficulties are brought on by regarding consent as principally an internal mental state rather than an external expression. (Consider the possibility that a defendant might claim the absence of mens rea, perhaps due to mistake, because “while her lips said ‘no,’ her eyes said ‘yes.'”) However, not all expressions of consent will have a legally transformative effect—for instance, an expression of consent that results from coercion or is based on a misrepresentation does not actually manifest consent. This suggests that there must be some relationship between the external expression and an internal willingness or acquiescence for the expression to have the requisite effect. Conversely, one who has sex with another, while ignoring the lack of any expression of consent, incurs a risk of legal liability for wronging her, regardless of her actual state of mind. In any case, a legal standard that treats consent as an external communication need not take a stand on what exactly the mental state (or states) is (are) that will suffice to render an expression of consent legally valid.
Those who favor conceptualizing rape as nonconsensual sex may nonetheless insist that it makes most sense to treat consent as an internal state. Surely part of what they hope to capture in defining rape as nonconsensual sex is the sense of violation that a victim is liable to feel in having her refusal to have sex nullified by an assailant’s refusal to respect her choice. Despite the potential legal difficulties this entails, to be as generous as possible to those who urge conceptualizing rape as nonconsensual sex I will stipulate that to violate a normally rational adult’s nonconsent to sexual activity is always to disregard and override her all-things-considered judgment that she does not wish to have sex. Disregarding such a refusal of consent to sex amounts to both an infringement of autonomy (in that it nullifies the victim’s own choices regarding sexual activity) and an attack on her bodily and sexual integrity (in that it subjects her to unwanted experiences and risks of physical and psychological harms that may be in significant conflict with her broader values, goals, and plans).
Yet even if this much is implied by an assailant’s disregard for his victim’s refusal to grant consent to sexual activity with him, it does not adequately explain the particular extent of devastation that victims of rape frequently suffer, nor does it help explain why rape contributes as it does to women’s gender oppression. I’ll consider these claims in order.
Western legal and moral systems attach great weight to many violations of consent, but people frequently do things that wrong others and in so doing manifest disregard for the aggrieved party’s lack of consent to such activities. Some such actions are grave (robbery, battery, adultery, breaches of fiduciary obligation); most are minor (petty thieving, damaging property, cheating at golf, breaking trivial promises, making too much noise too late). In all of these cases there can be harms, violations of autonomy, and sometimes assaults on bodily integrity to address. It is rare, however, for any of these violations of nonconsent to generate the damage that rape typically does to its victims. Even armed robbery and nonsexual battery, both of which can be quite traumatic and/or injurious, seem rarely to leave the same sort of emotional scars and disruptive aftereffects of rape. So simply disrespecting an agent’s nonconsent in a violent and bodily harmful way seems to fail to rise to the level of damage common in cases of rape and so does not justify the same stringency of prohibition.
One might try to explain the greater importance of consent with respect to sexual activity in terms of the importance of sex and sexuality in human life. Such an argument holds that, by our nature, sexuality is at the very core of our being, so that control over sexual choices is something we need to retain if we are to remain integrated as persons. Because these have special places in the lives of most adult humans, experiencing disregard for a person’s refusal to consent to sexual activity is liable to result in especially grievous damage to her. Archard paints a picture of this sort in arguing that rape is a threat to one’s sexual integrity: “Each of us is a sexed being such that our sexuality, our sexual nature, is central to our identity, to who each of us is,” from which he concludes, “humans have a central interest in their sexual integrity’s not being violated.” So if one is subjected to sexual activity that one does not wish to experience, then one is in danger of having a central aspect of one’s identity altered, disrespected, and injured.
While I am hesitant to deny any of this here, it does not yet seem adequate to explain the extent or prevalence of the sort of injury rape victims report. Virtually all rapes are, after all, events of relatively short duration in the scope of a life. While some result in physical trauma, illness, or pregnancy, these effects are contingent and often absent. Yet the effect of rape seems highly predictable and persistent for many of its victims, even when the physical effects abate quickly. So even if we grant that one’s sexuality is a core aspect of one’s identity and that rape is a grave insult to that identity, it remains unclear why one event of limited duration and possibly no residual physical harms can be such a threat to that identity—why does this sort of event have such a predictable impact on a person’s integrity or identity?
Rape is also quite distinctive among the various ways that one agent might trample another’s refusal to give consent to sex. The propensity of nonconsensual sex to cause damage will depend on a variety of factors, including aspects of the particular situation, but most importantly how the nonconsenting party feels about sex with the aggressor and what means the aggressor uses to engage in sexual activity with the nonconsenting party despite her refusal to consent.
Consider the differences between three cases in which a woman clearly expresses that she is uninterested in sex with someone who nonetheless disregards her rejection and goes on to have sex with her. In one, suppose they are a couple who have been together for a few months and have had sex a couple dozen times during that period. One morning they wake up together, and the man makes amorous overtures. She tells him she doesn’t want to have sex because she is not in the mood for sex, but he persists, and though she relents (in that she stops pushing him away and telling him “no”), she is somewhat peeved and never explicitly gives consent to sex. A second case: a woman tells her occasional lover that he can come over for the evening but that she doesn’t intend to have sex with him that night. After a relaxing evening, they begin kissing. He persists in such foreplay after she tells him it’s time for him to leave and that it’s well past her bedtime. Eventually, she simply gives in and allows him to have sex with her, without giving express consent, figuring that it’s the only way she’ll get to sleep. A third case: a young woman enters the dorm room of a male acquaintance, someone she has talked to before but who is otherwise not well known to her. She sits on his floor and chats with the man. After a while, he moves next to her on the floor and begins kissing and fondling her. She rebuffs him saying “No, I gotta go, let me go,” but he disregards her rejection. He gets up and locks his door (which keeps others out, though does not prevent her exit), picks her up, puts her on the bed, removes her skirt and underwear, and has sex with her, despite her repeatedly saying, “no, no.”
For reasons I hope are obvious, while the first two cases may evidence problematic behavior by the male aggressor involved, they pale in comparison to the badness of the behavior by the man in the third case. It is of course unlikely that the first two cases would generate a legal prosecution, even if the laws governing rape were reformed to focus on a victim’s nonconsent: it seems unlikely that such behavior would produce a legal complaint, though it may well occasion justified moral umbrage by the nonconsenting woman. But it seems quite unlikely that either of the women in the first two scenarios would regard themselves as having been raped; also unlikely that the men involved would imagine they might be committing rape; and also unlikely that the effects on the women who ultimately acquiesced to such behavior would be on a par with the effects that we associate with rape.
Should we then say that these scenarios differ from the third in that the women in the first two ultimately consented? If consent is an internal state, then it’s not clear that they did. I think it is easy to imagine these women feeling resentful over such aggression and even regarding such behavior as sufficiently disrespectful to justify ending their relationship. In the terms I used earlier, each made an all-things-considered judgment that she did not wish to have sex and yet relented. It seems plausible that a person so imposed upon could reasonably insist that she remained steadfast in her all-things-considered judgment despite choosing not to resist her aggressor. Or perhaps she would admit that she changed her all-things considered judgment but only because the effort or cost to resist the aggression was too great. But changing one’s mind in the face of unwanted, heedless aggression should not be regarded as constituting an attitude of consent. If consent is an external expression, it is also not clear either consented. It is true that in many long-standing couples expressing consent to sex may be much more subtle than a verbal agreement to engage in sex. Even then, if one partner has explicitly denied that she consents to sex on a given occasion, it is reasonable then to require that the denial be explicitly withdrawn and replaced with an affirmative expression of agreement that could not be reasonably considered as coerced. Otherwise, to allow acquiescence to serve as consent would be a very troubling standard, since a very large proportion of cases of rape include some form of acquiescence to sex, at least insofar as the victims mentally accept that they cannot prevent their assailant from carrying through with his sexual intentions, perhaps going so far as to feign consent or to facilitate the rapist’s sexual activities (as one might out of fear). So in the first two scenarios, it is unclear that the women would count themselves as having consented (even begrudgingly) or that their acquiescence amounted to an expression of consent. Still, I think we would want law to make an important distinction between these two cases from the third.
Other ways in which nonconsent to sex might be disregarded (or vitiated by fraud) add to doubts that all ways of violating consent deserve similar treatment. First, one partner in a mutually satisfying and amicable relationship might initiate sexual activity (including even penetration) with his partner while she is asleep, without having obtained explicit consent beforehand. Second, one partner might lie about his religion, ethnicity, age, or marital status (or just conceal such facts without dissembling) and have sex with another, where a true appreciation of such facts would have led his partner to withdraw consent to sex had she been aware of them. Third, someone might agree to have sex with another on condition that he use a condom (or that he is sterile, or disease free), conditions which he might fail to meet in a particular sexual encounter, again vitiating her consent to sexual activity with him. While all of these ways of initiating or completing sexual intercourse with another are problematic (or potentially problematic, in the first case, if the initiator is wrong about what his partner might like), all seem likely to affect the nonconsenting parties in ways that are qualitatively and morally different from cases typically regarded as rape or even nonpenetrative sexual assault.
What these sorts of cases suggest is that even if we accept that all nonconsensual sex wrongs (or risks wronging) the nonconsenting party, not all such cases seem to be experienced as rapes are typically experienced; predictably, they will typically be less traumatic and disruptive and in some cases may be little more than a minor irritant. So the wrong of disregarding nonconsent does not seem to explain why those cases we would more commonly describe as rapes have the distinctive effects they have.
One might read the above criticisms of the nonconsent standard as expressing concern that this standard is overinclusive and would criminalize too much. But there are also reasons to think that the nonconsent standard would fail to identify cases of harmful sex which it would nonetheless count as consensual. The force of this worry depends largely on how the standard is crafted: if “only ‘yes’ means yes,” then underinclusiveness is less of a worry. But even then, someone in a long-term abusive relationship might give affirmative consent to sex that reflects a generalized fear of displeasing her partner, a lack of self-respect, and hopelessness rather than actual desire. Perhaps we should say that such consent is not valid, given the circumstances in which it is offered, but then it seems that we would need to appeal to something like the coercion standard to judge the validity of this consent. If the law were to adopt a less stringent standard than “only ‘yes’ means yes,” then the possibilities for underinclusiveness grow, as the possibilities of mistaking acquiescence for consent grow. It is hard for me to see how any bright-line standard here can avoid serious problems with either under- or overinclusiveness (and perhaps both), since the thing that it tracks—consent to sex—is not as closely linked to the problem that rape presents as advocates of the nonconsent standard hold.
A similar complaint can be raised about whether conceptualizing rape as nonconsensual sex helps explain the role rape plays in contributing to women’s gender oppression. An advocate for conceptualizing rape as nonconsensual sex might point to the fact that rape is suffered overwhelmingly by women, and perpetrated almost exclusively by men, and argue that its prevalence and unequal frequency explain why it is disadvantageous to women as a group. Any time an identifiable group is subjected to a pervasive form of abuse by another group, it is easy to see how that is likely to undermine the targets of abuse. But even if that much is true, it does not yet explain why rape is as gendered as it is, nor does it explain the full contribution of rape to women’s gender oppression.
We might suspect that it’s just a fact about humankind that men are built so as to be able and inclined to impose on women sexually, and women are not built to do so to men; the resulting significant gendered disparity in the frequency of such impositions then explains their contribution to augmenting women’s oppression. This sort of naturalistic explanation invokes two primary potential explanatory factors: different abilities and different desires. Consider first the possibility that men are more capable of overriding women’s nonconsent than are women of overriding men’s. Given that many ways of disregarding nonconsent do not rely on possessing superior physical strength (the use of weapons, drugs, incapacitation, fraud, or nonviolent threats), it would seem women might be able to override the nonconsent of men much more frequently than they appear to do so. Of course men seem by virtue of their relatively greater size and strength able to overpower women more frequently than women are able to overpower men, and so the opportunities for men to disregard the nonconsent of women are more numerous than otherwise. Yet many women are larger and stronger than many men, so the potential for women to overpower men is not nearly as implausible as one might initially suppose. And women do engage in violence against men with greater frequency than might be supposed. One possible explanation is that various mechanical aspects of heterosexual sex may make it unrewarding for women to use weaponry or narcotics to make up for their comparative lack of strength and size. Yet fraud and nonviolent threats would seem to be as easy (or difficult) for women to engage in as men; yet this too seems much less common for women to use than for men.
So it seems that differences in individual ability alone do not explain the much stronger difference in behaviors. The other seemingly plausible explanation is difference in desire, that is, that women desire to have sex with relatively few different men, whereas men desire to have sex with many different women, leading to a certain sort of imbalance in the supply and demand of sexual partners (though not necessarily in a difference in the extent to which either group desires to have sex, quantitatively speaking). Hence the gender pattern to sexual offenses might be attributable to a broad imbalance of supply and demand. Might this be true? It’s hard to rule it out a priori, but if this were a key general factor explaining differences in predatory behavior, it would seem likely to weaken men’s social position relative to women, rather than strengthen it. On this assumption, women on average possess a good much scarcer but much more in demand than that which men possess. If only women can satisfy most men’s sexual desires, women would seem to possess a tremendous bargaining advantage over men, which should then allow them to lever the disparity in sexual demand into advantages in other domains (at least insofar as the vast majority of sexual bargains respect rules of consent). Although some men might manage to “steal” sexual benefits from unwilling women by disregarding their nonconsent, this would hardly weaken women’s greater bargaining power, any more than petty thieves and armed robbers undermine the advantage of capital owners and retailers. Of course women as a group do not seem to have successfully exploited their bargaining advantage over men; rather the opposite is broadly agreed to be true. So it is dubious that the supply/demand situation is as lopsided as this picture would suggest. This pushes us back toward an explanation in terms of men’s greater ability to override women’s nonconsent. If individually many women have the ability to take sexual advantage of men, and possibly the desire as well, yet extremely few women do so, we might look for an explanation of their observed stark difference in behavior not just in individual capacities and proclivities but rather in terms of a more general power dynamic between the sexes that arises as a result of social organization.
V. The Role of Rape in Gender Oppression
Leaving aside momentarily how to explain why rape is so starkly gendered in its frequency, it seems dubious that we can explain the overall importance of rape to gender oppression simply as a matter of the frequency with which men disregard the nonconsent of women to sex. While rapes significantly affect women, especially the victims of rape, they constitute a relatively small portion of the interpersonal rights violations that take place in any given year. Overall, men suffer considerably more violence than do women (though not at the hands of women) and so have their nonconsent to assaults and batteries violated much more often than women do. Since conceptualizing rape as nonconsensual sex did not explain why rape was especially harmful to particular victims, it doesn’t then yield an explanation for why the proliferation of sexual aggression against women is especially prejudicial to the interests of women in general. While it is possible that feminists have overstated the role of rape in supporting gender oppression, the generalized fear that many women feel with regard to rape and the contortions their lives take to avoid it suggest otherwise. I will now argue that attending to gendered power dynamics—starting from gendered differences in the willingness and ability to use force and violence, and a generalized awareness of these differences—is a useful explanation for rape’s gendered frequency and the role it plays in the sexualized oppression of women.
If not all nonconsensual sex is as problematic as rape, and if part of what makes rape more problematic is its contribution to gender oppression, then we need to look for something more than the rapist’s disrespect for the nonconsent of his victim to explain these phenomena. Radical feminism offers an account of rape that is helpful in this regard. On the surface this may seem unlikely, since feminists like Catharine MacKinnon have argued that rather than being an exceptional and anomalous experience, for many women, rapes are not especially distinctive compared to the circumstances and phenomenology of “ordinary” heterosexual experience. Rather than treating rape as a distinctively violent and unusual imposition on women’s sexual choices, MacKinnon and others have suggested that many women engage in sex with men against a shared set of background assumptions that include a persistent though tacit threat of force and violence by men, especially but not exclusively those who are denied in their sexual aims. Although most women who have been raped distinguish rape from other sexual encounters as especially awful and personally destructive, MacKinnon’s point is that women’s sexual choices are by and large conditioned by social forces that depict women as sexual objects, deny their autonomy, expect their eventual acquiescence to men’s sexual interests, and punish those who attempt to assert control over their sexual choices. On this understanding, rape turns out to be part of the enforcement process (along with other forms of gendered violence) of a broader social dynamic in which women’s sexuality is coercively constructed to cater to the interests of men. So even if rapes are phenomenologically distinctive to women who suffer them, “ordinary” heterosexual intercourse is structured to suit men’s desires rather than women’s because sexually noncompliant women in general face the nontrivial threat of being subjected to forced sex.
If such a picture is tenable, it offers an explanation for why rape has both the individual and social effects feminists (among others) attribute to it. An individual who suffers rape will confront the fact that she (or he) is both vulnerable to and has been subjected to the power of the dominant group to impose its will on one’s body and sexual choices. If the victim is a woman, then she also confronts the fact that because of her sex, she is marked out for such treatment by men; she cannot reasonably expect to avoid the possibility of such imposition by other men, especially those she knows and comes into close contact with. While men are not in general inclined to commit rape, there is no easy way in general to determine who are the ones who are so inclined, and so to avoid them in particular. And even men who are not inclined to rape can take advantage of the fact that some men are so inclined when pressing their case against reluctant women. Since men in general are known to be capable of resorting to force and violence in pursuit of their sexual aims, a man would have to take affirmative actions to defeat the assumption of this possibility if he wants to disavow himself of this advantage. While some heterosexual men do make a point to disavow these advantages, and others seek only egalitarian terms with female sexual partners, such seems not to be the norm among heterosexual men. Thus women in general (and especially heterosexual women) confront the fact that their sexuality and sexual opportunities are conditioned by the realistic possibility that a man or men will use force or violence to impose themselves sexually on them. For that significant portion of women who suffer rape, this possibility becomes a reality, and tends to undermine what sense of security and self-determination they might have previously possessed with respect to their sexual choices.
Even if this analysis is correct, it does not directly answer the question of how the crime of rape should be defined in law. What it does suggest, however, is that to define it simply in terms of the victim’s lack of consent will tend both to overgeneralize (insofar as not all cases of nonconsensual sex have the same devastating impact as those just described), as well as to underdescribe the nature of the wrongfulness of rape. A law that conceptualizes rape in terms of the victim’s lack of consent will draw a less clear picture of what is wrong and harmful about rape than might other possible conceptualizations. It thus undercuts the pedagogical function of such a law, and risks encouraging underenforcement and its attendant injustice. This should motivate us to consider a different conceptualization.
VI. Coercion Elaborated
As is widely recognized, to define rape as requiring force or threats of force or violence presents a significant difficulty for encompassing the variety of rapes that are both most common and also hardest to positively identify and prove—namely, those between acquaintances in intimate settings where the parties may disagree about what took place (or at least express disagreement) but agree that the assailant did not inflict egregious violence on his victim nor threaten to use such force or violence. In such cases the assailant will almost certainly have used some force on the victim’s body, but there is a difficulty in determining whether such force is exceptional—that is, whether it is greater or distinctive compared to the amount of “force” that is generally required for sexual intercourse to take place. Schulhofer analyzes the situation as follows: “Existing law prohibits only excessive force. The effort to distinguish permitted from prohibited force pulls the law into a hopeless quagmire, with underenforcement the inevitable result. But this problem can’t be solved by moving the line between the two kinds of force to a slightly different place. What is perhaps more surprising, and certainly more frustrating, this problem can’t be solved by prohibiting all uses of force. That approach won’t avoid the vagaries of distinguishing permitted from impermissible force, because physical activity, some of it forcible, is inherent in intercourse.” Beyond this, it is also very likely that the victim will perceive herself to be at risk of suffering additional force or violence if she resists her assailant enough to defeat her assailant’s intentions, though this fear may arise not from any overt threat made (there may be no such overt threat), but rather from other factors, such as her assailant’s demeanor, out-of-character behavior, or her generalization from her understanding of what such men have done to women in other cases. Thus the force standard, as it has been used, turns out to be problematic for being too narrow and restrictive, but taken more loosely, to include sex that involves any amount of force, would seem to break the standard entirely and criminalize virtually all sex, as Schulhofer suggests.
The words “force” and “coercion” are often used without distinction in English, and there are clearly reasons to connect them. Both invoke ideas of compulsion, constraint, and overtaking by means of superior power. But “coercion” is also used to refer to a broader range of activities, including a wide variety of conditionalized threats intended to alter action (“she coerced him to marry her by threatening to leave him if he didn’t” or “the teacher coerced the students to turn in their papers on time by threatening not to accept them if they were late”). Though many ways of conceptualizing coercion may be too broad or loose to be of help in establishing a criminal offense, there is here the germ of an idea for how to supplement or replace the force standard to capture more precisely the range of cases we wish to criminalize as rape.
The idea of a “coercion standard” to define rape is not entirely novel, but it has been underexplored in the theoretical literature. One recent discussion of it, by Jed Rubenfeld, dismisses it for being, in essence, not really different from a focus on consent, since he holds that both are concerned to protect the autonomy of sexual choices, a value he believes should not guide law in these matters. However, I think the main hindrance to this way of revising our understanding of rape is due to the general inadequacy of how philosophers and others have recently tried to conceptualize coercion. I will briefly indicate here why such accounts are unsatisfactory for legal use in defining rape, before proceeding to offer a sketch of a more defensible conceptualization.
Although there are notable differences among the many accounts of coercion in the last forty or so years, they by and large share some features that are manifest in the most prominent accounts. First, they draw a categorical distinction between force and coercion, since coercion is held necessarily to operate on the will of the coercee, whereas force works directly on her body. Relatedly, they hold acts of coercion to be constituted by a certain class of proposals, namely, conditionalized threats (and sometimes offers) that meet further conditions. These accounts will often go on to require that the threatened consequences are significant, that the coercee finds the threat credible, and even that the coercee actually capitulates to the threat. But these accounts virtually never attend to what the credibility of a threat consists in, how some (though not all) agents are positioned to make credible threats, and what prevents an agent subjected to coercion by a threat from reasonably ignoring, evading, deflecting or usefully threatening to retaliate against a would-be coercer. By insisting that coercion must operate through the will of the coercee, and insisting on the categorical distinction between force and coercion, rather than attending to their important connection, these accounts obscure the role that power differentials play in making coercion possible, as well as the way employing particular enforcement powers makes coercion frequently problematic.
Focusing the analysis of coercion on the content of a coercer’s proposal generates several obstacles to using such an analysis to identify cases of rape. For one thing, if an assailant makes no specific proposal, threat or otherwise—he simply refuses to take “no” for an answer—these accounts are hampered in recognizing the activity in question as counting as coercion. When there is a discernible proposal, these accounts engage, but then pose the issue in terms that do not track what is distinctively troubling about rape. Consider Wertheimer’s analysis of coercion: Suppose P proposes to bring about consequences C for Q if Q fails to do act A. To determine whether this proposal coerces (assuming that Q regards it as credible and does A) one asks whether (i) the proposed consequences C would make Q worse off than she is morally entitled to be (her “moralized baseline”), and (ii) the proposed consequences C are sufficiently adverse to Q’s interests to entitle Q to succumb to P’s demand to do A (taking into consideration whatever else may be at stake), while not being held responsible for the normal consequences of doing A. The first criterion is designed to distinguish threats from offers; coercion involves a proposal to make the coercee worse off than some relevant baseline, which is what it means to be a threat. The obviousness of the first criterion belies its insignificance here: while it is perhaps true that coercive proposals are those that involve threats—that is, that propose to worsen the coercee’s situation—many things people do or propose to do to each other make them worse off, sometimes significantly so, yet only some should be counted as coercive. So all of the work in this criterion falls on the determination of the baseline. A moralized baseline (e.g., the treatment one has a right to) rules out some proposals as possible threats, but it still does not tell us whether those that count as threats are such that the recipient need be concerned with them—not all threats to do immoral things are suited to coerce. So the second criterion, whether the proposal is sufficiently adverse to justify the recipient’s relenting to the coercer’s demand, turns out to be the crux for determining whether P coerces Q. But this criterion, in the case of rape, amounts to determining whether Q was justified in relenting to P’s sexual demands to avoid the potential consequences of resisting, while retaining the right to complain of being raped (a right which is ordinarily waived as a consequence of choosing to engage sexually with someone). While no doubt this is a question one might ask in a case of rape, the analysis here gives little guidance as to how to answer it. In fact, rather than being able to appeal to the fact that Q was coerced to determine her (freedom from) responsibility for A-ing, we have to determine her (lack of) responsibility for A-ing to determine whether she was coerced; thus the concept of coercion does none of the explanatory work here. Moreover, to answer this question would seem to require an inquiry into Q’s relevant values and judgments in ways that have frequently proven to be pernicious to victims of rape. I argue therefore that this approach to coercion, at least as a means of defining rape, is much less helpful than it might initially appear.
We might, however, revise how we think about coercion, taking up a more traditional view of it. This approach begins by considering how it is possible for one agent to make threats against another that are credible and to which acquiescence is reasonable. In deciding whether P coerces Q by threatening Q, it should not be taken for granted that P’s threat is credible, or that Q will need to acquiesce even if P’s threat is credible, since Q may be able to evade, neutralize, or retaliate decisively against P. So to understand the possibility that P coerces Q, we need to look at the differential in power and dynamic aspects of the relationship between them. If P is able to use direct force or violence that Q is unable to defend against (or retaliate against afterward), then that can be used to constrain Q’s actions or impose other disadvantages on Q (pain and injury) that may convince Q of P’s powers and willingness to use them. Q may also have a history of encounters with P that convince Q that P is willing and able to impose significant disadvantages on Q at will. In other cases, it may be unnecessary or counterproductive to both parties to seek a demonstration of P’s powers. Especially between agents who are relative strangers, a threat may be reasonably convincing to its recipient if the threat maker appears to have the characteristics of other agents who have been known to make and enforce such threats in the past. Policemen and back-alley armed robbers do not typically need to demonstrate their own personal propensity to harm those who defy them in the course of making arrests or mugging passersby. Rather, both police and muggers are able to threaten successfully most of those they encounter because of the reputation they inherit from others like them who have made and enforced similar threats before. A threat from someone who apparently possesses a gun, and who indicates a willingness to use it, draws a connection between himself and those who have acted similarly in the past. It is not the bare propositional content of the threat itself—say, the proposal to disadvantage the recipient—that accounts for its coerciveness but rather the factors making its execution plausible, such as the use of similar powers by others in the past and the threatener’s forging a link between himself and those who have used those powers. This also explains how it is possible for some agents to coerce by means of bluff threats: such bluffers tap into the broader existing relations of power between the agents they simulate and those they threaten.
The principal power requisite to coercing another is the ability to disable or hinder that party from a broad enough range of actions that we can thereby explain why the target cannot usefully or reasonably ignore, deflect, evade, or work around the enforcement of the threat. I call this sort of power enforcement or stopping power. When one agent has the ability and willingness to broadly interdict the actions of another (or can emulate those who do), and is unchecked by fear of retaliation, then that agent is able to require that the target of such force meet any arbitrary conditions the powerful agent may set as a condition of doing anything at all. On this account, uses of significant force and violence to constrain the activities of another, disable them, or impose actions on their body, are paradigmatically coercive, as are credible conditionalized threats of the same. Taking these powers as a model, we can then extend this picture of coercion to incorporate other significant but intermediate or tertiary powers agents can use to hinder the activities of others. In between significant direct force or violence and threats of such, actions that engage in bodily constraint, manipulation, touching, disrobing, penetration, and so on, that proceed without active assistance or encouragement, or that provoke fear, can count as coercive. Tertiary powers, such as economic power over economic dependence or disability, can also be used to coerce; however, these powers also frequently depend on background institutions that regulate the use of force and violence and thereby prevent the weaker party from rationally and effectively resorting to force or violence to overturn the imbalance in the tertiary power. So the ability to use force and violence effectively stands as both the exemplar for the sort of power advantage that is needed for one agent to be able to coerce another effectively, as well as a condition on the possibility of utilizing other broad powers to coerce effectively.
In sum, instead of defining coercion in terms of its effects on the coercee’s choice situation or the magnitude of the stated threat, I advocate identifying coercion with certain ways of using a kind of relative power generated and deployable by some agents, namely, the ability to overpower another or broadly inhibit her actions. While this approach diverges from much contemporary discussion of coercion, it is in line with the views of numerous prominent historical theorists, such as Locke, Kant, and Kelsen. I will now illustrate the value of this approach by showing how it helps us better understand, recognize, and prohibit rape.
VII. The Advantages of Conceptualizing Rape as Coerced Sex
If we understand coercion to encompass uses of force, threats of force and violence, and other enforcement techniques based on the willingness and ability of some to create and/or employ stopping power against others, I believe that we can reconceptualize rape as an assailant’s use of coercion to achieve sexual penetration with another, and therein discard both the force and consent conditions typically used to define the crime. Doing so would improve on the current conceptualization of rape both for purposes of understanding its wrongfulness as well as for purposes of framing its legal prohibition in terms of its actus reus and mens rea. The regulation of private coercion in accordance with justice is one of the key functions of any well-ordered state and is required for state legitimacy and domestic peace. All stereotypical cases of rape clearly manifest coercion as I’ve described it and so justify the state’s prohibition of them on that basis. All of them involve assailants who either create or take advantage of preexisting differentials in the ability and willingness to use force or violence between agents like themselves and their victims. They can create such differentials by arming themselves, harming or disabling their victims, and surprising and/or terrorizing them. They make use of preexisting differentials when they make threats or tacitly rely on their target’s fear or freezing in light of their superior size or strength, a prior history of violence, and/or the physical or mental incapacity of the victim. All of these advantages are couched in the broader context in which men have aggressively used these techniques against women in the past and are assumed to be capable of and willing to do so at present (though such context matters little in cases where the victim is severely incapacitated).
Conceptualizing rape as coerced sex will clearly prohibit all of the assaults prohibited by the traditional legal formulation. The next and most crucial test for a reconceptualization of rape, however, is whether it can accurately and persuasively explain what is happening in cases of acquaintance rape which involve, at most, modest uses of direct force and little or no violence or overt threats of violence, such as when an aggressive man simply refuses to take “no” for an answer. Uses of force and intimidation in intimate settings rely on contextual features such as a background of male social dominance and a propensity toward violence. In disrespecting her “no” and then using force, however seemingly minimal, to undress, position, and penetrate a woman who gives no encouragement, a man shows he is willing to make use of his presumed advantage in recourse to force and violence, and thus engages in conduct continuous with and based in the acts of other men who have used force and violence to achieve their sexual ends with women. So if we start with the proper understanding of the way inter-agentic power works in ordinary cases of coercion, then it is possible to see these cases of acquaintance rape as employing coercion as well, and thus justifiably prohibited on the same basis as more stereotypical cases.
Based on the understanding of coercion at work above, I can now sketch the actus reus for rape. Rape can be understood to involve coercion for purposes of obtaining sexual gratification from another, or causing her sexual humiliation or degradation. Attempts to constrain or alter the action of another through uses of direct force, violence, threats thereof, and behavior that intimidates by causing fear of force or violence are all species of coercion and can be explained as such. Using intoxicants surreptitiously to disable another is cognizable as a use of force with little stretching. Taking physical advantage of another who is independently incapacitated (either physically or mentally) may not fit traditional definitions of coercion, but if we look at it in terms of using a differential in physical power between one who is capable and one who is incapacitated, it does not appear to be much different from the use of overpowering force against someone who is of sound mind and body.
These factors also speak to how we can judge the mens rea of a person accused of such crimes. If, in the absence of affirmative prior consent, an aggressor uses violence, threats of violence or significant force, or intimidating behavior in pursuit of sexual ends, the aggressor has constructive knowledge that he is engaging in coercion for sexual ends. Or if, in the absence of prior affirmative consent, an aggressor uses force—even a minimal amount of force—despite an absence of assistance, cooperation, or encouragement from the object of his actions, then he also constructively knows that he is using coercion for sexual ends. Or if an aggressor uses force—even a minimal amount of force—despite an unretracted expression of nonconsent by the object of his actions, then he also constructively knows that he is using coercion for sexual ends. In any of these cases, the aggressor can be said constructively to know he is using coercion because he should know that the particular techniques of violence, force, or intimidation are means to cause a rational person who cares about her safety to acquiesce to sex.
Compared to conceptualizing rape as nonconsensual sex, conceptualizing rape as coerced sex helps explain its distinctively gendered pattern of incidence, as well as its distinctively devastating harms to women. Men are on average larger and stronger than women are. This difference in population means is accentuated by the fact that men and women tend to seek romantic partners who are smaller and larger, respectively, than they are, with men also usually being older than the women they partner with, thus greatly increasing the frequency with which women find themselves in intimate contexts with men larger and stronger than they are. Moreover, there is a general cultural understanding that men are willing and able to use violence against women in pursuit of their sexual aims (among other purposes), while women much more rarely resort to force or violence against men. These factors combine to give most men a threat advantage against most of the women with whom they are likely to find themselves alone. Women, by contrast, very rarely enjoy these forms of power over men. Correspondingly, men do not understand themselves to be disempowered, vulnerable targets of female aggression. Hence it is unsurprising that rape is committed almost exclusively by men and that women rarely engage in sexual assaults against men; the sexual dichotomy with respect to the use of force to obtain sex proves to be self-reinforcing.
The gender dichotomy with respect to the use of force in this domain also helps explain why the sexual aspect of these crimes is especially problematic for victims. To be subjected to rape alters one’s sense of self and understanding of oneself, particularly with respect to one’s gender (which is typically as female, given the extent of female victimization). I would also argue that a significant part of the impact is due to the way such attacks affect broader social understandings of gender. Insofar as women are liable to suffer sexualized attacks in ways that men usually are not, and continually feel the need to take precautions against such attacks (and bear significant stigma and self-recrimination when they fail), such sexual coercion contributes substantially to defining the different subject positions of man and woman in a society. Those who engage successfully in such attacks frequently gain in pleasure, fulfillment, anger-release, and adventure, and those who suffer them frequently lose self-esteem and confidence. To be victimized in this way is therefore liable to influence negatively one’s future sexual relationships, and one’s relationship to sexuality more generally. The ability of men to make coercive sexual use of women thus helps define for many people the meaning of sex and the place of women in a gender hierarchy. Thus there is something especially objectionable when men resort to coercion in pursuit of sex with women.
Conceptualizing rape as sexual coercion will also bring out a common pattern in many cases of sexual abuse through breach of trust and abuse of authority, including victimizing minors. It does not, however, encompass all of the various ways that people sexually abuse each other; in particular, it does not speak to what is wrong with using fraudulent means to induce another to have sex, nor does it grapple with other possibly illegitimate sexual inducements such as are involved in prostitution or many cases of quid pro quo sexual harassment. So it is not an omnibus theory of wrongful sexual relations. But this should not constitute an objection to it, if it helps identify and clarify an important range of criminal behaviors in a way that makes it easier to see what is wrong with them.
It will be apparent at this point that this conceptualization of rape does not avoid all consideration of a victim’s consent as a condition of the crime, nor would it be proper for any legal definition do so entirely. People can and do affirmatively desire and express their desire for sex that involves subjecting themselves to force, violence, pain, incapacitation, intoxication, unconsciousness, and humiliation, among other risky conditions. While statistically uncommon, the mere fact that a man has sex with a woman subjected to any of these particular conditions does not yet indicate that he has raped or assaulted her. Volenti non fit injuria. More problematically, women sometimes express nonconsent to sex when they nonetheless want to engage in sex, and give contrary indications that some men will rightly interpret as encouragement to further sexual activity, and those women’s subsequent behavior will show as much. While there is reason to counsel men that it is better for all involved to be safe than sorry in the face of expressed nonconsent (or even when lacking affirmative expressions of consent), it would be unjust but conceivable for a woman to say “no” but mean yes and to encourage a man to proceed to have sex with her, successfully communicating this encouragement, only to change her mind afterward, and cite her expressed nonconsent as the basis for a charge of rape. Such situations will no doubt be rare, but their possibility demonstrates that nonconsent to sex remains a requirement for a charge of rape, and that a bright-line standard like “‘no’ means no” will court the possibility of wrongful rape convictions, at least up until the time arrives when everyone is able and willing to express honestly and accurately their sexual desires.
Nonetheless, conceptualizing rape in terms of coercion allows us to recast the place of nonconsent in a charge of rape, from being an element to be proved affirmatively by the complainant, to instead being an affirmative defense available to the defendant. That is, when a complainant alleges that a defendant was using coercion to impose sexual activity upon her, if the claim itself is credible, it is reasonable to infer that she did not consent to acts she submitted to under coercion. As is true in bringing charges for other crimes against a person or property, there should be an ex ante assumption that the complainant did not consent to being attacked, rather than requiring the complainant to prove this. Assuming the prosecution can make a case that the accused coerced the complainant into sex, it will fall to the defendant to show either that he did not in fact use coercion to induce her acquiescence to sex, or else that he had reason to believe that she had consented to his activities. Such consent would be transformative of the act, and cannot be ruled out a priori, but neither should it be treated as typical or likely, especially when two people lack significant sexual familiarity with each other. Note, however, that if he is shown to have used coercion to achieve his sexual aims, any expression of consent that occurs after he begins to engage in coercion will be suspect as having itself been less than freely given, and hence inapt to defeat the charges against him.
Some might argue that it is reasonable (albeit possibly a reasonable mistake) for a man to take a woman’s lack of resistance to be an expression of consent to his activities, or, if not an expression of consent, it might at least signal that she did not find his actions especially objectionable. This view would be made more reasonable if a woman could, with minimal risk to her own safety, put up sufficient resistance to her aggressor to sidestep having sex with him. Evidence that this is so is found in two recent articles in which Sarah Ullman surveys published studies of women’s responses to sexual assaults and especially the efficacy of rape avoidance techniques, such as physical or verbal resistance. Based on these surveys of published results, Ullman concludes that forceful physical resistance, while not a common response, does not correlate with increased physical harm to the victims but instead reduces the likelihood of a successfully completed rape by the attacker. Women who engage in physical resistance preemptively, before being harmed by their assailant, are no more likely to be harmed than those who do not resist, or resist only verbally.
While this might provide grounds for altering women’s perceptions and strategies of their prospects for resistance when threatened by rape, it does not show that women are wrong about men’s propensity to violence or the harms women frequently sustain in rape. And if women are mistaken about their prospects for successful resistance, then this too is a reasonable mistake. Ullman notes that historically women have been taught that their safest rape avoidance strategy is to restrict their activities and contacts with risky men but that, once attacked, it is safest to use only nonforceful resistance, in order to minimize the chances of harm. Given the commonplaces above about men’s frequent recourse to violence, though a woman may underappreciate her own defensive capabilities, the fact that a woman fails to resist someone who is physically aggressive does not show that she consents to have sex with him or finds it unobjectionable. As has long been recognized, it would be an unreasonable burden to require the target of aggression to resist beyond merely expressing nonconsent. Ullman’s research does show, however, that the power of many rapists over their victims does not reside solely in the personal characteristics of aggressor and victim but rather in the broader cultural understandings of men and women’s abilities and propensities.
Conceptualizing rape in terms of coercion also has several other theoretical advantages. This way of understanding rape leaves room for gradations of the offense, at least insofar as we can distinguish degrees of coerciveness. As with assault, uses of great force and violence should be punished more harshly than lesser uses, actual uses more than threatened or intimated uses; uses of weapons aggravate the crime; failing to carry through with one’s announced intentions may mitigate it. If the victim is aware of the attacker’s having a prior history of violence (perhaps because she experienced it), then this should add to the seriousness of any threats, force, or violence he uses on the occasion giving rise to a charge. While the evidentiary requirements for prosecuting the crime understood in this way will still result in epistemic challenges and “swearing contests,” the facts on which a conviction would depend are no more difficult to elicit than are facts about whether the victim consented, relented, or what the defendant thought about such things. Largely they are the same facts as figure in rape prosecutions today but are configured in a way that explains why the use of any force at all, in the absence of cooperative participation from one’s partner (or clear affirmative consent in advance), amounts to a use of private coercion, which is widely agreed to justify state regulation for the protection of autonomy and domestic peace and harmony. This way of configuring the facts also should highlight the fact that the principal issue in rape is what the aggressor did—coerce someone into sexual activity—rather than what his target did with respect to expressing or not expressing (non)consent to sex. Since part of the function of law is to educate and even ennoble a society and its legal functionaries regarding various kinds of interpersonal conduct, it is useful to identify criminal conduct in a way that manifests transparently what is wrong with it. In so doing, we may also hope to achieve more effective and fair enforcement of the law because police, prosecutors, judges, and jurors will be better able to determine accurately when a particular situation will manifest (or not) the activity that the law was constructed to suppress. At the very least, we might reasonably hope for more consistent and assertive enforcement of the law if that law makes good sense to those empowered to do so.
VIII. Conclusion
The principal work of this essay has been to show that there is a tenable concept of coercion that can solve the most troubling problems created by the current force-based conceptualization of rape. Before I would expect others to find my case fully convincing, a number of other topics would need addressing. It would be important to show that statutory language could be drafted that could communicate the idea of coercion developed here to those who would be charged with applying the law. More empirical study of how different formulations of law generate (or fail to generate) different outcomes would be helpful. It would also be useful to say more about how the crime of rape, conceptualized as coercion, is related to other, noncoercive forms of sexual abuse. But if the principal task has been achieved, then it will justify engaging in these other efforts in the future.
Addendum: Model Penal Code Revisions
The American Law Institute has recently undertaken to draft revisions to section 213 of its Model Penal Code (MPC), dealing with “Sexual Assault and Related Offenses.” The original MPC, adopted in 1962, was in some respects a reform proposal relative to state laws of the time, insofar as it defined rape in terms of force and the threat of violence but omitted the “against her will” condition, thus curing the redundancy problem and lowering the evidentiary burden on prosecutors. It also established lesser offenses such as “Gross Sexual Imposition” where compliance with sexual demands is obtained by “any threat that would prevent resistance by a person of ordinary resolution,” and “Sexual Assault,” where one imposes sexual contact on another that is “offensive” to that person. So the original MPC was already a progressive reform proposal rather than merely a distillation of the laws then governing rape. The first, most obvious difference between the proposed revisions and the original MPC is that the revision roughly doubles the length of the model statute, articulating a significantly larger number of specific offenses and degrees of offense. Second, the proposed statute creates distinct offenses for both forcible rape and nonconsensual sex. “Forcible rape” is a second-degree felony tied to the use of “physical force, physical restraint, or an implied or express threat of physical force, bodily injury, or physical restraint” (and a first-degree felony if aggravated); and “sexual penetration against the will or without consent” names two offenses: a third-degree felony offense tied to having sex with someone who has expressly refused consent, and a misdemeanor offense for having sex with someone who has not given affirmative consent to sex. This last offense is notable for amounting to an “only ‘yes’ means yes” standard for legally permitted sexual penetration.
Just as the original MPC was in various ways ahead of its time (and may still be in some respects), the proposed revisions constitute a significant leap ahead of the current state of law and possibly also that of public cognition of the offenses described. If it were adopted by the various jurisdictions in its current form, it would simplify the work of prosecutors by virtue of disaggregating the two conditions for rape (force, nonconsent) and outlawing both. And for many sexual impositions, these prohibitions are appropriate legal responses. But for the reasons given above, there is reason to worry that the two offenses related to nonconsensual sex, particularly the misdemeanor of sex without consent, will fail to be widely enacted, and if enacted will fail to be uniformly enforced. While it is a laudable ethical aspiration to instill “only ‘yes’ means yes” as a social norm, it is a norm that is far from broadly accepted at present. Moreover, it fails to distinguish cases where nothing is said because nothing needed to be said from cases where nothing is said because of shock or fear. And as argued above, “‘no’ means no” as a standard fails to capture any distinction between the three cases of nonconsensual sex I discuss in Section IV. So while there are no doubt reasons to prefer the revised MPC to both the original and to most current US states’ laws, one may reasonably predict that uptake of the revised standards will be sluggish, and the rationale behind its regulation of intimate conduct much less perspicuous and persuasive than one would like. An approach focused on coercion would, if successfully codifiable, avoid at least some of these difficulties.