Is consent really relevant to rape?

[atonal chaotic]

This thought occurred to me the other day for some odd reason. Rape is commonly defined as sex without consent. But what's really objectionable about the rapist isn't that he didn't obtain consent, but that he didn't even care about consent. That may not be the best way to put it. But what matters is the intent of the criminal, not the intent of the victim.

So our hypothetical rapist goes after someone (known or unknown) with the intent of raping them (whether by intimidation, emotional manipulation, drugs, blackmail, etc.) Suppose the victim is the mythical nymphomaniac who can't say no, or the even more mythical girl who likes rape? Suppose it's someone who might have wanted to have sex with our rapist anyway? Is it still rape and morally wrong with such consent?

I say yes. It's wrong because the rapist wanted to have his way regardless of what the victim wanted. Even if the victim would have wanted sex, he wouldn't care if she hadn't. Therefore rape is not sex without consent, but sex without regard or concern for consent, whether consent is present or absent.

[CanoeMan]

I can't see how you can rape someone without them not-giving consent (withholding consent? What word am I looking for here?). Sure, if you drug someone they never get the chance to consent or not, but if you just jump someone in a park somewhere, they have the chance to consent or not (usually expressed as "Get the hell away from me, you sick fuck!").

[Scifinerdgrl]

This argument sounds like Catholic catechism thinking: thinking of doing a sin is tantamount to doing it. In the U.S., the law only takes intent into account when there's actually a crime. If the "victim" in your scenario actually wants to be beaten up and penetrated (rape is rarely just sex), would she file charges or testify? If not, there's no case.

[Johan]

This thought occurred to me the other day for some odd reason. Rape is commonly defined as sex without consent. But what's really objectionable about the rapist isn't that he didn't obtain consent, but that he didn't even care about consent. That may not be the best way to put it. But what matters is the intent of the criminal, not the intent of the victim.

So our hypothetical rapist goes after someone (known or unknown) with the intent of raping them (whether by intimidation, emotional manipulation, drugs, blackmail, etc.) Suppose the victim is the mythical nymphomaniac who can't say no, or the even more mythical girl who likes rape? Suppose it's someone who might have wanted to have sex with our rapist anyway? Is it still rape and morally wrong with such consent?

I say yes. It's wrong because the rapist wanted to have his way regardless of what the victim wanted. Even if the victim would have wanted sex, he wouldn't care if she hadn't. Therefore rape is not sex without consent, but sex without regard or concern for consent, whether consent is present or absent.

No, rape is sex without the consent of the victim. The missing penal concept you're looking for to complete this picture is "Impossibility," which applies to all criminal offenses, not just rape.

Suppose Bill has the intent to steal a soda pop from a pushcart vendor, and so he grabs one. This is the attempt to commit a crime. But unknown to him, today the vendor is giving away free sodas. Or suppose Bill wants to murder Jack, so he walks up to him in bed and puts a bullet through his head. But unknown to him, Jack died of a heart attack hours before.

In these circumstances, it is impossible for Bill to commit the crime of theft or murder, just as it is impossible for him to commit the crime of rape if, unknown to him, the victim does in fact consent. But in each of these cases, Bill is guilty of attempted theft, attempted murder, and attempted rape. The magic language in criminal law is "a person is guilty of an attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. It is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be."

[CanoeMan]

The magic language in criminal law is "a person is guilty of an attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. It is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be."

Ooooh, that is interesting. Does this take mental illness into account? For example, if I believe that you will die if I shout "ooga booga" at you from a distance, is it technically attempted murder if I do so? Because that would be hilarious.

[Christina Mirabilis]

I got the sense that the OP was asking if it was morally wrong and not just if it was legal.

I'm not willing to define morality for anyone but myself, but I would consider any action of mine that had the intent to harm someone to be morally wrong.

[ApostateAbe]

Do you think "rape" with consent should have the same punishment as ordinary rape?

[Johan]

Ooooh, that is interesting. Does this take mental illness into account? For example, if I believe that you will die if I shout "ooga booga" at you from a distance, is it technically attempted murder if I do so? Because that would be hilarious.

Usually a mental illness that has progressed to the point where a person believes this would be causally efficacious is sufficiently ramified as to affect other aspects of the person's judgment; but provided that the illness is specifically limited to the false belief that you can kill someone through telepathy or sorcery, then it would still be attempted murder because the person had the requisite mens rea.

[Christina Mirabilis]

Do you think "rape" with consent should have the same punishment as ordinary rape?

I don't think that there is such a thing as "rape" with consent. If you're talking about role-playing and consensual rough sex, I don't think that there should be any punishment for anything that goes on between consenting, mentally competent adults.

[Johan]

No, there is no such thing as rape with consent, anymore than there is such a thing as murder without death or theft without property.

[atonal chaotic]

This argument sounds like Catholic catechism thinking: thinking of doing a sin is tantamount to doing it. In the U.S., the law only takes intent into account when there's actually a crime. If the "victim" in your scenario actually wants to be beaten up and penetrated (rape is rarely just sex), would she file charges or testify? If not, there's no case.I was thinking more as a corollary to the Categorical Imperative (You are morally wrong to use others only as a means to your ends.) And I was avoiding any consideration of legality or how to build a case for or against someone's conviction. Simply a question of what is morally blameworthy.

As an analogy: (1) Say I go to the Grand Canyon, grab some tourist at random and throw him off the edge.
Alternate scenario: (2) I go to the Grand Canyon, grab a tourist at random and throw him off the edge. A search of his hotel room later reveals a suicide note stating his intention to throw himself off the edge.
Another: (3) I go to the Grand Canyon, grab a tourist at random and throw him off the edge. There's a suicide note as above. Suicide and assisting in suicide are both considered ethical and legal.
Last thing I just thought up: (4) I go to the Grand Canyon looking to kill someone. I stalk tourists and discover one writing a suicide note stating his intention to throw himself off the edge. Suicide and assisting suicide are commonly considered ethical and legal. With no other contact or communication with him, I grab him as he's approaching the overlook point and throw him over the edge.

I contend that all of these scenarios are murder and morally wrong, with (4) being the only possible fuzzy area, for the same reason that intent, not consent is the primary concern in judging the moral wrong of a rapist. Because the rapist and murderer are each acting with no regard for the will of their victims, not necessarily against the will of those same victims.

I'll leave it to someone else to pseudopsychoanalyze why I'm willing to use first-person in a hypothetical murder scenario but not a hypothetical rape scenario.

[Dhaeron]

Ooooh, that is interesting. Does this take mental illness into account? For example, if I believe that you will die if I shout "ooga booga" at you from a distance, is it technically attempted murder if I do so? Because that would be hilarious.Dunno about US law. Here, yes. There are cases were people were convicted of an attempted crime despite an unbelievable display of incompetence.
If you're as far gone as to believe ooga-booga kills people, you'll find yourself in a state-run hospital (the ones with bars on the windows) instead of prison.

[dmarker]

Do you think "rape" with consent should have the same punishment as ordinary rape?


This sounds suspiciously like, "well, it ain't a real rape if she was a skank ho and might have fucked him anyway"

Back to the five dollar analogy:


If someone has 20 five dollar bills in his wallet, and he decides to give his five dollar bills out to random people because he just feels like it. And when he just has one five dollar bill left, someone mugs him and takes that five dollar bill. Should the fact that he had passed out 19 other five dollar bills be a mitigating factor for the mugger?

"Your honor, it wasn't a real mugging because he gives away his five dollar bills and he might have given one to me," she says.

"Your honor, it wasn't a real rape because she puts out for everyone and might have fucked me," he says.

[Johan]

This sounds suspiciously like, "well, it ain't a real rape if she was a skank ho and might have fucked him anyway"

Back to the five dollar analogy:


If someone has 20 five dollar bills in his wallet, and he decides to give his five dollar bills out to random people because he just feels like it. And when he just has one five dollar bill left, someone mugs him and takes that five dollar bill. Should the fact that he had passed out 19 other five dollar bills be a mitigating factor for the mugger?

"Your honor, it wasn't a real mugging because he gives away his five dollar bills and he might have given one to me," she says.

"Your honor, it wasn't a real rape because she puts out for everyone and might have fucked me," he says.

It would not be real rape, or real theft, if the victim actually consented.

It would be real rape, or real theft, if the victim did not actually consent for the perpetrator to perform the act. "Might have" is not the same thing as "actually".

But now we're talking about the state of mind of the victim, not the perpetrator.

[JerryM]

It would not be real rape, if the victim actually consented.




But, there's a legal exception.

It could still be prosecuted if the "victim" was a minor, or someone considered legally incapable of giving consent. Just consider Joey Buttafuoco, or Roman Polanski, or Mary Kay Letourneau. Though in some places, if a teenager close to the AoC is involved, it's considered criminal sexual conduct with a minor, which is usually a lesser charge than statutory rape.

[Johan]

But, there's a legal exception.

It could still be prosecuted if the "victim" was a minor, or someone considered legally incapable of giving consent. Just consider Joey Buttafuoco, or Roman Polanski, or Mary Kay Letourneau. Though in some places, if a teenager close to the AoC is involved, it's considered criminal sexual conduct with a minor, which is usually a lesser charge than statutory rape.

But someone considered incapable of giving consent is, by definition and tautologically, considered incapable of giving consent. So the argument is that there is no actual consent in such cases, despite appearances, because there was no consent to give.

[dmarker]

But someone considered incapable of giving consent is, by definition and tautologically, considered incapable of giving consent. So the argument is that there is no actual consent in such cases, despite appearances, because there was no consent to give.

It's like contract law.

I loan a 15 year old $500 and have him sign a promissary note. Since 15 year olds cannot legally enter into contracts, there is no contract and I have no legal recourse to collect the $500.

[dmarker]

It would not be real rape, or real theft, if the victim actually consented.

It would be real rape, or real theft, if the victim did not actually consent for the perpetrator to perform the act. "Might have" is not the same thing as "actually".

But now we're talking about the state of mind of the victim, not the perpetrator.

If you have legal consent, it is not rape.

But what I'm talking about is the attitude that if the victim was a skank ho then raping her should be a lesser crime than raping someone who was not a skank ho.