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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, 2014 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, 2014 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, 2014 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, 2014 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, 2014 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, 2014 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, 2014 at 7:17
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    feel free to ask a question to that effect.
    – virmaior
    Aug 15, 2014 at 6:45
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The legal defitnion of 'rape' where I am includes the condition that someone does not reasonably believe the other party freely consents. So I would suppose it allows reasonable use of coercion, e.g. a woman sleeping with a man she knows is gay (without threatening to out them) may well be reasonable, just as having sex with someone that you have tricked with AI may be a reasonable use of coercion (in this instance, deceit). cf even a dimly implied threat of overwhelming force or lying about if you have a penis: these are not reasonable for someone to do in this context, and consent is almost certainly lacking there.

We certainly may call it rape when it is reasonable to believe the other party does freely consent yet they do not, and surely it does happen, but I usually feel that the legality of something is a good indicator not of how to use words but how gratuitous something is.

Consent (free consent) is multifacted, and indeed someone may call me a rapist e.g. for lying about my sexual history to them (I don't do this!), even-though retroactively deciding it was coercive (rather than deceptive) may not suffice (at least if not mad drunk).

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  • the only remaining questions on this, and this answer was always on the tip of my tongue, so to speak, are whether a) an unreasonable deception in some contexts may be reasonable in a sexual encounter (perhaps yes, e.g. giving evidence to a court) and b) whether "rape" can also be/involve infidelity (one assumes yes, and not least due to how fidelity is negotiated)
    – user67675
    Nov 24 at 7:13
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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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  • This answer does raise the question of whether not indicating consent Is sufficient to reasonably believe the person does not consent and the legal definition of rape. Clearly, labeouf did not indicate consent, neither at the time nor in the installation of his work (it is not reasonable to suppose he intended to agree to people acting way toward him: as I doubt he foresaw anyone would). A freak outlier? But I am skeptical that the so called "affirmative consent" concept is a new thing courts use when deciding whether someone reasonably believes consent occurred. The law, who knows.
    – user62133
    Aug 11, 2022 at 2:34
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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.
    – Frank Hubeny
    Aug 5, 2018 at 13:26
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This was on my mind again. I think that any explicit threat to someone (I will leave you if you don't, I will take the house/children/money) means that it is rape, you are forced into sex (assuming it matters to you). Implicit threats are more difficult to assess, but if it's reasonable to suppose they will take the house/children/money, then I see no reason to think that it's not coercively forcing someone into sex.

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  • Assess in what context? Court? Peer-group? People are legally allowed to sell sex. Also coercive control laws exist. What philosophy or philosophical stances in ethics or psychological ideas are you relating your definition of coercion to? Sartre for instance said we are condemned to be free, our inner freedom is inescapable, so he would say it is living in bad faith for a person to deny their capacity to decide, regardless if external coercion.
    – CriglCragl
    Aug 20 at 10:14
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Rape is non-consensual sex.

There's no "just an unwanted sex act". The integrity of the body is a fundamental human right and another person may only interact with that without your consent. Period. Anything else is an act of hostility.

And by permission I do not mean waving away of rights before the act, but a continuously expressed consent. So if at any point you are no longer ok with it, the other person has to accept that and would commit a crime if they proceed.

The problem is, while you can formulate that in no uncertain terms, the practical enforcement of that is a nightmare. There are usually only two people involved in that, meaning you've no witnesses and two directly contradicting accounts with little chance to verify either and the juridical principle of in dubio pro reo (when it doubt for the accused) often shields the perpetrator (or the falsely accused, it's not that easy). So from the law enforcement perspective the focus is often on penetration, bruises and physical violence, because that is the kind of things the forensics team could verify.

While the juridical part has to prove the "guilt of the defendant". Which is as hard of a task as it sounds and even in the case of such marks of force, a defendant could argue with "they liked it rough" and "they consented at the time" and you'd have a hard time proofing that wrong.

So in the worst case scenario in the face of a lack of demonstrable dissent, it's not rape, but not because it isn't rape, but just because the court can't proof it.

However regardless of whether a court convicts the perpetrator or whether the perpetrator is aware of their wrongdoing, the action itself nonetheless can have a traumatizing effect on the survivor of it. Which may or may not correlate with the amount of force the perpetrator has used. So just because an act of rape didn't leave bruises and visual markers of any sort or involve penetration doesn't mean that the experience is any less severe and traumatizing.

So from the perspective of the survivor any action that can cause that effect could legitimately be called rape. From the perspective of law enforcement it's only what can be proven and from the perspective of the accused it's only what happened in malicious intent.

Not to mention that the specific legal definitions may vary from country to country and would be better suited for a law stackexchange.

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    "no just an unwanted sex act" agree, but i am a little reluctant to include post hoc decisions, after the act, in that, though psychiatrists treat them as very similar
    – user67302
    Aug 19 at 16:26
  • What exactly do you mean by that?
    – haxor789
    Aug 21 at 0:10
  • just what i said! i have filled in and discussed forms that ask if you've had sex which was unwanted before or after the act. psychiatrists don't just lump together completely different things. obviously consent is consent, but yeah so called ugly seductions and so on fall under the same kind of trauma.
    – user67302
    Aug 21 at 1:39
  • @legoman That still uses a lot of implied context not in the answer and terminology that I don't know of. So idk I can only imagine what specifically "ugly seduction" is supposed to mean? Seduction of someone that is ugly, by someone that is ugly or where the act of seduction is "ugly" (read criminal)? Though overall that seems to be just an extension of "legally the focus is on the provable guilt of the perpetrator" while practically speaking the harm of the survivor might be irrespective of that malicious intent and be a result of the act itself.
    – haxor789
    Aug 21 at 10:29
  • by an "ugly seduction" i clearly mean sex that is only retroactively unwanted. it's unclear what's strange about that. anyway, forget it
    – user67302
    Aug 21 at 17:02

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