Rape and non consensual sex

Question

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?

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 4

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.

Answer 5

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.