Rape, consent, and when ‘yes’ means yes.

The concept of consent has come up twice in the news in a week. First, a court denied Tony Nicklinson the right to die. The fact he consented to his death was deemed irrelevant. Now, George Galloway has caused a stir by suggesting that being asleep does not preclude consenting to sex. If the context is correct, Galloway claims – for instance, having recent prior sexual interactions with someone and sharing a bed that night – this might not constitute rape. Cue the typical platitudes flooding the airwaves and the Twittersphere, as people rush to express opposition through bare tautologies like ‘rape is rape’, ‘yes means yes’ and ‘no means no’.

Whilst well intentioned, the problem is that consent is not a simple concept at all. As we shall see, the law acknowledges that it’s deeply nuanced. But here’s Britain’s formal definition:

A person consents if he or she agrees by choice, and has the freedom and capacity to make that choice. The essence of this definition is the agreement by choice. The law does not require the victim to have resisted physically in order to prove a lack of consent. The question of whether the victim consented is a matter for the jury to decide…

And good luck to them. They’re going to need it. I don’t want to condemn this language too strongly, because I certainly wouldn’t want the job of framing a substantive definition. But anyone who thinks that cashing out consent in terms of ‘agreement by choice’ will clarify things is being too optimistic. It’s like explaining the nature of a ‘wrong’ act to a child by telling them that it is bad.

But let’s go through this slowly to see why ‘yes’ does not, in fact, necessarily express consent.

First, there’s the simple fact that a twelve year old’s word when it comes to sexual activity counts for nothing. We take it that the young are incapable of consenting, and so even if they say the word ‘yes’ then this would be rape. So consent requires the person in question to be of an appropriate age.

Second, some states have laws classifying sex through deception as rape. Such cases safeguard against, for instance, a twin brother impersonating his other half and thereby extracting the consent of his brother’s wife. The wife will have said ‘yes’ to the act, insofar as it will have proceeded peacefully without force. And yet we intuitively think she will not have consented. This seems to be because the act was not committed ‘with knowledge’, and so once more ‘yes’ need not necessarily mean yes.

Third, British law recognises a context of ‘fear’ as valid grounds on which to conclude that consent was not present. For instance, if a wife experiences sustained domestic violence, and knows refusal of intercourse will lead to severe beatings, when she proceeds to say ‘yes’ to sex this does not mean that she has not been raped. Now ‘consent’ is starting to look like a mental state. It is something you think, not something you say.

Fourth, in relation to Galloway’s comments, most people agree, and the law recognises, that someone who is unconscious cannot consent, and this means that sex with an unconscious person is rape. We may wish to add a provision that this person would have dissented from the act if they were awake, and do so once they learn of what happened. I’m not too sure, but it seems to be that sort of plausible if awkward thought that Galloway is having. Regardless, if a person was unconscious when another person had sex with them, and they would and later do oppose that, this is evidently rape.

Fifth and finally, British law argues that a person may reach a state of drunkenness where they are similarly incapable of consenting to sex, even if they are not unconscious. So a drunken person who says ‘yes’ to sex may still be raped due to an allegedly deficient mental state.

So ‘yes’ does express consent, except, perhaps, when the person is too young, too drunk, too scared or ignorant of the nature of the act they are committing. I say perhaps because I now want to show why each and every one of these qualifications, whilst prima facie intuitive, can cause some real problems upon reflection, leaving that legal phrase – ‘freedom of choice’ – even more slippery and useless than before. Unfortunately, the only crystal clear cases of rape involve sober adults being physically coerced.

The first and fifth qualifications – age and drunkenness – can be taken together. Both are classic cases of what philosophers call the Sorites paradox. I know that if you only have four hairs on your head, you’re bald. In contrast, a million hairs ensures you’re not bald. But it’s baffling to imagine a discrete, definable point at which baldness forms or fades away. It seems that the concepts of maturity and drunkenness are similarly vague. It’s hard to imagine anybody judging that a person who is sixteen tomorrow and decides to have sex the day before is raped. It’s also laughable to say a person who consents to intercourse after half a pint of beer is raped. And yet we also think that twelve year olds definitely cannot consent and neither can anyone drunk on ten shots of vodka and five lagers. Again, I’m glad I don’t have the job of defining the thresholds.

The second qualification was that sex through deception may be rape. Again, the case of a cunning twin brother deceiving his other half’s wife is a powerful one. But if our underlying thought is that this is rape because the woman has sex with a different person than she thinks she does, where is this headed? If someone is waiting for a blind date and asks a stranger if they’re also standing in this public spot to meet them, and they say yes, is any ensuing intercourse rape? What if someone lies about their entire identity, manufacturing a name, job title and income level, likes and dislikes? It’s hard to see how to capture the first case whilst keeping the others out. Richard Chappell has had similar worries.

Finally, the third qualification – that sex within a violent relationship is rape – is possibly the most powerful of them all, but once more the slope seems slippery. Aristotle and Hobbes famously considered the question of whether a man that throws his cargo off a ship to prevent the ship from drowning acts ‘voluntarily’ when doing so. They both end up arguing – yes. Acting from fear does not preclude voluntary action. On the contrary, when you act under fear your act is very voluntary. The same worry can be put here by imagining less fierce threats that test our thoughts. If, for instance, a person says they will cheat on their partner unless they have sex, is this act committed through fear, thereby rendering the expressed consent void and leaving the act classifiable as rape? Take this as a call to help me distinguish the two.

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7 thoughts on “Rape, consent, and when ‘yes’ means yes.

  1. Okay, so this is going to be more a set of instinctive responses/queries than any kind of sustained answer, because I don’t have one.

    Your paragraph on age/drunkenness and the Sorites paradox is correct, but it seems that there’s an inference there which I don’t agree with: that the problems we experience defining fair thresholds means perhaps we shouldn’t try to do so at all. Much the same as we do with drunken driving, we can pick a threshold which might not (indeed, almost certainly doesn’t) accurately reflect the point at which most people are too drunk to drive, but which we deem fair because we know we need to put a threshold somewhere and having it *there* works fairly well. Wouldn’t doing the same with age (whatever the precise laws might be) and drunkenness (e.g. ‘x’ mol/ml of blood alcohol = too drunk, or even ‘x’ mol/ml/kg, or something yet more complex than that…) be better than not trying?

    On sex through deception – I think this is legally close to impossible to sustain. I think we’d need to be satisfied that both parties regarded the subject matter of the deception as a critical condition for intercourse, that the ‘victim’ believed that answer 1, given, was true, and that the ‘perpetrator’ knew this, and knew that it wasn’t. Perhaps the example of the twin brother comes close to standing up, but I think the twin would only have to be able to maintain that he thought the wife knew she was cheating on her husband for it to collapse.

    The bit I think we could have the most interesting discussion about is what I mentioned on Twitter. I’m yet to be convinced by Hobbes and Aristotle that actions which are subject to psychological coercion (i.e. fear) are more ‘free’ than actions subject to physical coercion. I gave the example last night of asking what meaningful distinction we can make between a man who is forced to sit in a chair by having his limbs manipulated by force into a sitting position, and the same man having a gun held to his head and being told to sit? Clearly, there is a difference – in the latter case, the man can choose to say “no”, in the former, he has no such choice. Yet if we want to define “choice” in this sense, then my question would be “why would I be interested in that kind of choice?” I’m more interested in a meaningful choice – where we have multiple courses of action open to us, and can take either/any with a minimised degree of coercion.

  2. Jon – Thanks. The problem that bugs both Aristotle and Hobbes (and me) is that if we endorse:

    A – An act is not performed freely if its motive is fear.

    then it’s not only gun-to-head acts that are no longer free. We also have to say I do not act freely when I choose not to do something because it’s against the law and would be punished. If I fear jail, and thus decide not to do X, then according to A I do not act freely. If I fear public shame, and do not do something for this reason, then again A says I do not act freely.

    That’s clearly false. So you can’t cast the net so wide as to exclude all acts motivated by fear.

    • Okay, but is “fear” – i.e. fear in the same sense that we mean when we’re talking about a gun-to-head situation* – really the main driver that we want to believe underpins deference to the law? Respect for community, willing employment of the legal code as a moral compass, affection for the principles of democracy etc might be higher up my list.

      Of course, in some instances, we can see nothing but a fear of incarceration as the motive for obedience, but would it be so terrible if there was little choice for the agent in such situations? When MPs debate whether the severity of punishments are sufficient to act as a deterrent, isn’t their end goal effectively the minimising of choice?

      *If I wanted to be a dick, I could pretentiously try to set out different types of fear…

      • It seems irrelevant what the actual motives of real people are in obeying the law – the hypothetical man that no doubt exists who does not rob banks primarily out of fear of prison is, according to the anti-Aristotelian view, not acting freely, he does not consent to his own action, and so on.

        But I think I see what you’re trying to get at: this might not be such a big bullet to bite as it first appears if we can show that it rarely is a real motive, so we could retain the conclusion that most people do, in fact, obey the law freely.

        I get that. But I still really struggle with it. I guess I see no good reason for concluding that acts out of fear render choices unmeaningful – your key premise. Why would this be? What does ‘meaningful’ mean here?

        It can’t mean, for instance, that several options feel reasonable to you, that an individual doesn’t feel only one path is on the table. After all, several people are convinced they face a moral imperative to tithe to relieve Third World poverty. They feel obliged to do this. They can’t conceive of acting otherwise. Does that render their acts unfree, their choice unmeaningful, too?

  3. Your analysis is intelligent and very Western, so that will not convince George Galloway. He is a fan of the sort of Islam in which a woman’s consent to sex is meaningless because her purpose is to please her man. Come to Britain and speak to Muslim women campaigning against, for instance, female genital mutilation, and ask them what they think of George Galloway. And prepare yourself for some not pretty language.

  4. It’s rape even if the person does say yes if it’s under threat,violence, or coercion. Point blank. This happened to me before and I had given consent only because I was scared for my safety. Plus I had tried to take it back right before by saying I didn’t wanna do it and he intimidated me once again so I did it. Even if that didnt take place thats definitely rape.

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