Despite the pretense of relativism or moral uncertainty among many Americans, there remain certain moral touchstones that few if any are uncertain about. One of these is that Hitler was evil. Using the Nazis as moral goalposts is so ubiquitous that the Internet has described the phenomenon as Godwin’s law: “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”
Another of these moral touchstones is the fact that rape is about as heinous a crime as anyone is capable of committing. Before pronouncing judgment, cultural relativists do not first need to dialogue with other cultures which have condoned or even enjoined rape in certain circumstances. Nor do utilitarians first need to scientifically poll rapists and their victims about the relative amounts of pleasure and pain that they’ve experienced. Rape is simply wrong, and we all know it apart from our philosophies.
It is therefore curious that rape has become the topic of so much recent controversy. That controversy includes well-intentioned but intemperate surrendering to fears of rapists going without punishment and victims going without vindication. This is part of the motivation behind ongoing attempts to combat rape by revoking the rights of the accused—particularly on college campuses. While the goal is admirable, the means center around 1) facilitating accusations and punishments until their frequency matches the blatantly false claims of one in five college coeds being raped and 2) responding to failures to take accusers seriously by going to the opposite extreme of reflexively believing them.
The reason that the accused have rights is to protect against the severe harm that false accusations bring. It has yet to be demonstrated why rape is the one allegation for which the accused should be offered no such protection. It is not uncommon to hear claims that false accusations are practically non-existent, but there is no evidence this is actually true, and plenty of examples to the contrary.
Dehumanizing Sexual Consent
There is, however, a deeper reality behind the fervor to convict, the bogus statistics, and the guilty-until-proven-innocent mentalities. Nowadays, the idea of sexual violation is expressed entirely through the concept of “consent.” However, the ability of this single factor to exclusively undergird our concept of rape is complicated by attempts to divorce consent from every other facet of human experience.
One of the most famous of these attempts is the “no means no” standard, which sought to more firmly establish a woman’s refusal. This standard is not without its problems, however. Though deliberate refusals are what they are and should be treated as such, the standard also promotes myopia when it comes to the tendencies of many women to be coy and of many men to be boldly persistent—complimentary character traits which facilitate romance and have many innocent incarnations.
It also leads to its fair share of absurdities, the most infamous of which is probably the one-free-grope policy feminists were forced into whilst defending some of President Clinton’s alleged dalliances. After all, who is to say that a sexually liberated woman isn’t allowed to enjoy the occasional unsolicited fondle? Surely men need fair warning to the contrary when their attempts to provide such services are unappreciated. The only important thing is that the men take no for an answer. Accordingly, this kind of standard not only divorces consent from male-female sexual complementarity, but also made a mockery of the crime of rape itself.
Another attempt to refine and purify consent can be found is Mary Adkins’ response to the suggestion that a woman’s resistance to the use of force play a role in the legal identification of rape. In it, the author suggests that such a standard is unfair because many women do not resist specifically because their relative lack of strength means they probably won’t prevail. In response to an advocate of the force requirement, she writes:
He wants that she should push back, require her rapist to show his full strength so she can accuse him later. Under Rubenfeld’s preferred definition for the law, she should dehumanize herself further for it to be considered a true act of rape (because, by definition, there is no force unless there is resistance). Despite the terrible, visceral knowledge that she is unlikely to win any physical match against him, she has to try and fail.
Her response is problematic. First, to describe physical resistance to rape as “dehumanizing” is surely unjust to those who actually have pushed back. Are they really less human for having done so? Though horrible, the red badges of courage earned by those who fought against their violation are surely worthy of more respect than that. Rather than dehumanizing, the character to resist evil even in the face of defeat is one of the bright spots of humanity.
More problematic from a legal perspective, however, is the presumption of violent intent on the part of the alleged rapist. Ambiguous situations are created when weak no’s are intermingled with words and actions that seem to say yes. A physical “no” cuts through that ambiguity and can just as easily result in an end to the encounter as it can in violence.
Refusing to give such a clear signal out of fear of a possible future outcome takes a great deal for granted. In many cases, all that is then left to identify a rape are the fears of the alleged victim and a handful of mixed messages. The attempt to cleanse consent from the need for a clear physical manifestation thereof makes it highly subjective. Such is hardly a sound basis on which to condemn someone for a heinous crime—particularly when maintaining a legal presumption of innocence.
Only A Special Yes Will Do
More comprehensive attempts to distill consent can be found in the recent pushes for affirmative consent laws. By feminist reckoning, the expectation of maintaining an ability and willingness to deliver a clear refusal places too heavy a burden on a woman’s sexuality, and so no-means-no must give way to only-yes-means-yes. But not just any “yes” will do. To adequately purify consent, the yes must meet a host of quality control standards.
The “yes,” for example, must be ongoing. In California’s law, “Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.” Furthermore, this revocation cannot depend on a no, but only on continued delivery of the yes, for the law also states, “Lack of protest or resistance does not mean consent, nor does silence mean consent.” The intent here is to divorce consent from any form of commitment.
Committing to marriage has long been considered too extreme a requirement to legitimate a sexual encounter. In turn, long-term relationships were also deemed too confining. Now, apparently even one-night-stands and hookups constrain the sexuality of a liberated woman beyond reason. It must be terminable at any time, for any reason, and without notice.
In other words, a consensual encounter can turn into rape between one thrust and the next without the “rapist” even knowing. Indeed, nothing in the law says that either partner need realize it at the time. If recognizing consent requires cold-sober analysis, then why not use the 20/20 hindsight provided by post-coital reflection? And when last night’s encounter leaves without buying breakfast, maybe that’s what it takes to realize that the consent wasn’t pure enough after all.
In some versions of affirmative consent, consent must be granted anew at each escalation of the encounter. But what counts as escalation? Are there now legally accepted definitions for first, second, and third base? Or perhaps such categories are too restrictive and even harder, deeper, or faster must count as escalation.
Such criteria divorce consent even from human sexuality itself. Two computers might negotiate data transfer by explicitly requesting and confirming each step in the process, but this is far removed from authentic sexuality. Standards like this classify most sexual encounters as rape. They leave the matter of guilt or innocence almost entirely in the decision to prosecute rather than in the act itself. As Ashe Schow recently found, the proponents of affirmative consent laws are unable to offer any suggested means by which the accused could prove that consent was actually granted. Now, this may be precisely what feminism seeks—granting women arbitrary legal power over men—but it cannot be what any just society seeks.
Perhaps the most absurd attempt to distill consent comes from Valerie Tarico’s seasonal piece about how “rapey” Christmas is. The holiday revolves around God having His way with a young virgin’s womb—a violation second only to His unilateral creation of that womb in the first place without so much as a by-your-leave. I’m sure many Christian rape-apologists are ready to object that the virgin birth (by definition) involved no sexual intercourse in any sense or that Mary consented—she even sang a song about how wonderful it all was (which is perhaps unusual in rape situations.)
Although the first point is lost on Tarico, she does acknowledge the one about consent. Unfortunately, it doesn’t count because Mary’s consent was not pure enough. “Mary assents after being not asked but told by a powerful supernatural being what is going to happen to her.” Apparently even God Himself is not allowed to impugn on a woman’s consent by choosing her as integral part of mankind’s salvation, for this might sway her opinion on the matter. Much like the color-blind are incapable of distinguishing red from brown, feminists seem to possess a mental defect rendering them imperceptive of anything other than power and coercion when they encounter things like hierarchy, authority, and even godhood.
The Cost of Reducing Consent to Whim
In their attempts to purify consent from all contamination, feminists have inadvertently turned it into something else. A consent that may flit to and fro from moment to moment and which ought not be subject to any external influence or pressure is, for all practical purposes, indistinguishable from mere whim.
But is whim even something worthy of respect? When critiquing George Bernard Shaw’s worship of human volition in “Orthodoxy,” G. K. Chesterton observed, “You can praise an action by saying that it is calculated to bring pleasure or pain, to discover truth, or to save the soul. But you cannot praise an action because it shows will; for to say that is merely to say that it is an action. By this praise of will, you cannot really choose one course as better than another. And yet, choosing one course as better than another is the very definition of the will you are praising.” In other words, choice is not meaningful apart from judgment.
Now, respecting even poor choices is still a sensible concept, for we treasure the meaningful human capacity to choose better over worse. Whim, however, is a different animal altogether. It does not choose better or worse; it does not really choose at all. It is simply an arbitrary impulse. Choices have criteria, but a consent divorced from any other consideration necessarily has none.
Perhaps this explains the feminist complaint that while parents teach their daughters to avoid rape, they fail to teach their sons not to rape. I always found this puzzling; I was raised Lutheran, and Luther’s explanation of the fifth commandment included “do not hurt or harm your neighbor in his body” and of the sixth included “lead a chaste and decent life in word and deed,” both of which preclude rape. But Lutheran or not, most religious and irreligious traditions include some version of “do unto others…” or even “don’t be a jerk,” which also precludes rape. Only when consent is hermetically sealed from anything which might humanize it—when it is reduced into pure whim—can we fail to recognize such obvious instruction.
Yes, Sex Is Special
For that is not, by a long shot, all that rape is. Forcing oneself onto a woman against her will is one thing; having sex in a way that does not accommodate momentary whims is something else entirely. Accordingly, understanding rape solely in terms of dehumanized consent undermines the moral sensibilities upon which our ubiquitous condemnation of rape depends.
Borrowing a roommate’s blouse without permission violates consent, but it is trivial. No feminists complain about a blouse-borrowing culture nor call to revoke due process for accused blouse-borrowers. The only reason for considering rape a particularly heinous crime is because, unlike shirts, sexuality is something special and set apart.
But if sex is something special and set apart, then it ought not be treated so casually at all. This brings us back to chastity—precisely the moral virtue that feminism’s myopic focus on consent is meant to bypass. Tarico, for example, tries to shame Christianity because the Bible “fails” to talk about her dehumanized understanding of consent. However, it talks about far higher and deeper concepts on which to understand the horror of rape: purity, chastity, fornication, propriety, carnal knowledge, and so forth.
For instance, the Bible talks about sex functionally making a couple “one flesh.” It doesn’t matter whether it is a husband with his wife or a prostitute with her john—sex does what sex does whether we use it rightly or not. Such an understanding provides one vantage point (among others) from which rape is clearly perceived as heinous, for establishing that kind of relationship against the will is abhorrent. Grievous wounds of this kind can be survived and overcome, but they are what they are and demand retribution. Rape based solely on whim does not trigger than kind of reaction in the human conscience.
But doesn’t “without her consent” mean the same thing as “against her will?” It could, but not when consent is divorced from every other factor. There is no routine soul-smear by which movements of the will can be scientifically detected; we can only rely on one’s actions to express her will. The key question in determining beyond a reasonable doubt whether rape has been committed is therefore whether the accuser refused sex—in a more human sense than preferences regarding granular sexual mechanics.
Answering that question well will always be more complicated than seeing whether a “no” ever crossed her lips or whether a “yes” dutifully crossed them at every escalation. It requires looking at the nature of the existing relationship between the people involved, the characters of both accuser and accused, the nature of the refusal, evidence of resistance, and so forth. In short, it requires looking at all the very human aspects of sexuality that feminists seek to make off-limits.
‘Rape Culture’ Is just Unchaste Culture
It is clear that we have problem when women begin thinking that saying “no” is just not worth it. In the aforementioned article, Adkins gives the impression that saying no to an aggressive sexual advance is an almost extraordinary act of strength and bravery that most women cannot muster. So what do they do instead?
In order to avoid victimhood and maintain simple, victimless personhood, women can be extraordinarily, stunningly rational; we can rationalize away acts of violation simply because we don’t want them to have been real. Perhaps if I decide it didn’t happen, it didn’t; perhaps if I decide it doesn’t matter to me, it doesn’t.
Indeed, if whim is all that makes a rape, then avoiding rape is simply a matter of adjusting one’s whims. Think of it as “surprise sex,” and it’s not so bad anymore. The advocates of affirmative consent likewise seem to think that refusal is beyond the capability of too many women.
But whereas feminism inadvertently paints women as being too feeble to deliver a clear “no,” chastity empowers women to refuse by giving them a foundation greater than whim. Chastity highlights the higher values associated with sexuality and trains people to act accordingly in a way that whim never could. A chaste woman who knows the value of her sexuality can say no to a proposition with confidence. In contrast, a woman who dutifully goes to town when a stranger pushes her head towards his crotch at a party—who thinks refusal isn’t worth the potential trouble—has a shallow and impoverished understanding of her own sexuality.
Chastity also offers women a protection that laws never can. Legal retribution must be available, but it is better to avoid the need for it in the first place. Much of the drive toward affirmative consent comes from the increasing prevalence of hard-to-prosecute situations such as drunken hookups in which participants were too intoxicated to adequately gauge consent. This is part-and-parcel of a dehumanized sexuality that operates on whim, but the chaste know better than to enter such situations in the first place.
The common rejoinder is that a woman should even be able to walk down the street naked without fear of rape, dress as provocatively as she wants without provoking an unwanted response, and even travel to unfamiliar city to sleep in a stranger’s bed without any sexual repercussions. However valid (or not) one may consider such arguments, trading away due process, the presumption of innocence, and even an understanding of the seriousness of rape to secure these privileges is a poor deal for women and society.
The chaste, in contrast, understand the value of propriety because they understand the higher values that propriety is meant to guard. To them, it is simply how one treats her sexuality with respect. None of this means that the wanton deserves to be raped—just that the wanton has already casually abandoned protections far better than any affirmative consent law could ever provide. Redundant protections can be good, but they aren’t always worth throwing the rest of society under the bus.
In contrast to popular rhetoric, if there was ever a “war on women,” it was carried out by those feminists who deemed chastity burdensome. Their myopic view of rape as the absence of a form of consent from which all trace of humanity has been boiled away does women no favors. There is no rape culture—there is only a culture in which the sexual revolution has so skewed our perspectives that undesirable gray areas like drunken hookups have become a matter of everyday life for some women. But expanding the scope of rape beyond all good sense is not a solution, for if “rape” truly describes everyday college life, then it simultaneously ceases to be a big deal in the public consciousness. If women feel sexually disadvantaged in contemporary America, their best bet for improving their position is to do the hard work of reclaiming the virtue of chastity.