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As I understand it [from the papers - i.e. liberal public perception], rape is non-consensual sex when consent is not just lacking, but can be shown to be lacking.

Is that right?

Is the idea that when consent is lacking, and it can be demonstrated [whether or not it is], it becomes a sexual assault, and not only an unwanted sex act? Like the difference between theft, and aggravated theft.

Or is it just a definition of the legal term "rape", and in the moral sense rape need not involve demonstrable lack of consent?

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  • and demonstrable to whom? it would seem unusual to claim that someone could be raped and not know it. but you'd think that everybody at least when conscious, knows when they have consented. so that's not enough: demonstrable to whom? perhaps the condition is that the non consensual victim would have to know that the offender knows that consent is lacking. this seems a little off tho, if only for the fact that some people have such poor social cognition etc. that they would be unable to know what the rapist knows.
    – user6917
    Aug 13 '14 at 1:41
  • It is the same distinction as that between touching and battery to begin with. If consent to be touched is clearly absent and contrary to the will of the person touched, that is minor battery. If that battery establishes a credible threat of continued or future harm, that is assault. Rape is not just battery, but assault, because it makes clear the possibility of future harm via loss of reputation, public shaming, and unwanted pregnancy. Aggravated crime involves proof of the intended severity of the threat (such as a weapon, or repeatitions). So the distinction is not the same.
    – user9166
    Nov 29 '14 at 17:30
  • Basically, an unwanted sex act is already assault. The threat of potential harm is real and clear, and consent to be touched was absent. So if it was unwanted, that adds up to assault. Battery due to miscommunication is not prosecutable, because guilt relies on intention, but it is still battery.
    – user9166
    Nov 29 '14 at 17:40
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I think you're criss-crossing some distinct notions here. First, there are moral senses of terms like "rape" and "assault." Moreover, there are legal senses. Finally, there are psychological senses* of these terms.

The legal sense of rape is (historically) as follows:

Historically, rape was defined as unlawful sexual intercourse with a woman against her will. The essential elements of the crime were sexual penetration, force, and lack of consent. Women who were raped were expected to have physically resisted to the utmost of their powers or their assailant would not be convicted of rape. Additionally, a husband could have sex with his wife against her will without being charged with rape. (barely respectable source)

Over time, this definition has shifted, but I will leave the details of how and why out of my account here as the ability of the legal definition to shift is part of what it is.

The moral sense would be some specifies of immoral sexual conduct towards others. This could be managed primarily in terms of rights and responsibilities, pleasure and pain, or virtues. In other words, the use of others for sex against their consent could be understood as wrong because of the pain (psychological or physical) it inflicts on another. Or it could be wrong because violating someone's rights by taking without consent is wrong. Or it could be wrong because of what it does to the person doing it. (These are three rough sketches in terms of utilitarian, deontological, and virtue ethics approaches).

The psychological sense of "rape" would refer to either a rapacious intent in sex or to an experience in someone who undergoes what they experience as a rape. Note that for the psychological sense to occur, it is not necessarily the case that someone has been legally raped.

In your question, you seem to identify the moral and legal senses and to believe that we should change the psychological understanding based on these. There are accounts of morality where all 3 are merely unfolding elements in our understanding of ourselves, but there are also reasons to keep them separate.

At a minimum, a good reason to keep them separate is that legal senses deal with what can be proven. In other words, morality seems larger than legality in terms of wrong it identifies. Moreover, the psychological sense and legal sense seem worthy of separation since it is conceivable that someone have the psychological experience of rape without having been sexually assaulted (raped) on any legal definition -- and conceivably any moral definition.

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  • hi, i was asking for a definition, really. i found this plato.stanford.edu/entries/feminism which is pretty much what i meant. but it makes few conclusions. the sense that rape is not just non consensual sex, i got from a guardian article. there is much more reporting of that in surveys etc. thank you for your reply though, i understand what you are getting at even if it wasn't quite what i really meant to ask
    – user6917
    Aug 13 '14 at 1:55
  • wait so are you saying that the legal definition of rape cannot [in principle] be the same as the moral one? that strikes me as wrong.
    – user6917
    Aug 13 '14 at 2:56
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    I severely doubt they could be identical, because a legal definition needs to be litigable whereas a moral one refers to right and wrong directly. You could take the view that morality is identical to legality (or reduces to just legality) in which case you can say that. Or to word it another way, there are those who think moral = legal for which legal = moral. For all others moral is stricter than legal.
    – virmaior
    Aug 13 '14 at 7:14
  • i am asking if a legal definition shouldn't ideally include its moral definition. are we talking cross purposes?
    – user6917
    Aug 13 '14 at 7:17
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    feel free to ask a question to that effect.
    – virmaior
    Aug 15 '14 at 6:45
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in the news right now http://www.theguardian.com/film/2014/nov/28/shia-labeouf-raped-performance-art-project-dazed

i don't think this could be classed as rape, because the lack of indicating non consent, is a spiritual sociological threat, not an actual material threat, of violence, or material loss.

as this is the legal definition of intimidation:

"Threat of harm generally involves a perception of injury...physical or mental damage...act or instance of injury, or a material and detriment or loss to a person."

so rape is a lack of consent, be that explicitly expressed, or merely implied due to intimidation or mental incapacity.

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As per USA law now, consent to the sex act is irrelevant regarding rape.

If one of the two people is over 18 years of age and if the other is not, the one over 18 is automatically guilty under the statutes of rape hence the phrase STATUTARY RAPE regardless of mutual agreement or consent. The sex or gender of either party is also irrelevant.

I don't know about the case of both parties being under 18 years old.

If both parties are over 18, the rule is if one says "NO" even as the other is climaxing, it is rape if the other continues. Fighting off the other is not legally relevant now as the HAMMURABI CODE no longer applies. Any jury might consider otherwise.

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  • I made an edit which I hope clarifies the answer. You are welcome to roll this back or continue to edit it. It would help in the answer to state the laws you are referring to. Also it would be good to quote the Hammurabi code. All of this documenting would strengthen your answer. Aug 5 '18 at 13:26

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