[TW for sexual violence]
This is the second part of two posts concerning sexual consent and sexual assault. The first is here.
Introduction
In an article in Cosmopolitan magazine that was widely criticised (correctly, I think), Laura Sessions Stepp coined the term "gray rape". She uses this term to refer to:
I would argue that the same problem continues, however, in somewhat more subtle forms. On the one hand, as I argued in my previous post, the paradigm of "enthusiastic consent" constructed by some feminists can erase the agency of those who give genuine consent that doesn't result from sexual desire. On the other hand, the continued emphasis on coercion in the date rape paradigm leaves many of us unable to pinpoint problems with sexual behaviour that is not straightforwardly coercive. My project in this post is to colour in some of the resulting "grey areas" by trying to articulate a more complete moral picture, where coercion represents one end of a spectrum of morally problematic behaviour. Thus while the aim of the Cosmopolitan piece was arguably to avert moral discussion of ambiguous cases, and so depict them as simply unfortunate occurrences that are not the fault of anyone in particular, my aim is precisely to focus moral scrutiny upon them.
I gave a brief account of my underlying moral theory in my first post, though I will extend it somewhat here. The basic premise of this theory is Kant's principle of humanity, which states that we should not treat other people simply as means to our own ends, but treat their interests or desires as valuable ends in their own right. Following this idea, we can think of the seeking out of sexual consent as an attempt to ascertain that the other parties concerned have a genuine interest in the proposed sexual act. Conversely, the essential wrong of sexual violence is indifference or outright hostility to the interests of the other party in a sexual act. In the case of indifference, the other's body becomes a mere means for the aggressor to pursue their own sexual pleasure (or other interests). In the case of hostility, the aggressor might specifically seek to override the other party's interests, as an act of spite, or in order to assert or consolidate power over them.
The virtue of this theory is that it gives us a framework for thinking about not only the paradigm cases of sexual assault, but also the "grey area"-type cases. The essential points to be made here are: (i) that concern for another person's interests comes in degrees, and a person can exhibit insufficient concern while not being totally indifferent or hostile; and (ii) this lack of appropriate concern is often manifested in manipulative or otherwise problematic behaviour. In what follows, I will discuss some cases illustrating these basic points.
A Disclaimer
Before discussing the true "grey area" cases, however, I'd first like to discuss some cases of coercive sexual assault (i.e. which do not fall into grey areas) but nevertheless can result in moral confusion because they fail to conform to the dominant paradigm in other respects. It seems to me that most of the examples cited by Stepp fall into this category. The biggest source of confusion here is that the dominant paradigm produces certain expectations about the relationship that is supposed to exist between assailant and victim, and the way that a victim is supposed to feel during and, as a survivor, in the aftermath of an assault. In the dominant paradigm, the experience of being sexually assaulted is without exception uniquely awful and traumatising, the survivor does not have a close relationship with the assailant, and certainly does not retain any feelings of intimacy or warmth towards them after an attack, the survivor is motivated to obtain vengeance upon the attacker, and so on. While many instances of sexual assault do conform to various aspects of this paradigm, many do not.
While not diminishing the experience of those who are traumatised by an assault, we should recognise that many people report the experience as being deeply unpleasant, awkward and/or confusing, but not resulting in any lasting trauma. Moreover, many survivors are sexually assaulted by intimate partners or other loved ones, and have no desire after the assault to see these people in prison or even punished at all. Often what they really desire is simply an acknowledgement of wrongdoing and an apology. Or perhaps a survivor doesn’t want to think of themselves as a survivor of sexual assault, with all the connotations of powerlessness and being “damaged goods” that our society loads upon such a person. Someone who has been assaulted under one of these "alternate paradigms" may be left unable to articulate their grievance precisely because terms like "rape" and "assault" seem too "big" - and too laden with legal significance - to capture their experience and how they would prefer their grievance to be addressed.
This is the second part of two posts concerning sexual consent and sexual assault. The first is here.
Introduction
In an article in Cosmopolitan magazine that was widely criticised (correctly, I think), Laura Sessions Stepp coined the term "gray rape". She uses this term to refer to:
sex that falls somewhere between consent and denial and is even more confusing than date rape because often both parties are unsure of who wanted what.I think Stepp is correct that we are confused about sexual consent and sexual violence, but misdiagnoses the source of the confusion. The problem, in essence, is that we refer to idealised paradigm cases of "rape" and "not rape" when judging instances of sexual behaviour, and are unable to articulate concerns about problematic behaviour that falls outside these paradigms cases. This is a point frequently repeated by feminists. Indeed, the terms "date rape" and "acquaintance rape" were created precisely to pick out cases of sexual assault that differ from the old "stranger hiding in the bushes with a knife" stereotype.
I would argue that the same problem continues, however, in somewhat more subtle forms. On the one hand, as I argued in my previous post, the paradigm of "enthusiastic consent" constructed by some feminists can erase the agency of those who give genuine consent that doesn't result from sexual desire. On the other hand, the continued emphasis on coercion in the date rape paradigm leaves many of us unable to pinpoint problems with sexual behaviour that is not straightforwardly coercive. My project in this post is to colour in some of the resulting "grey areas" by trying to articulate a more complete moral picture, where coercion represents one end of a spectrum of morally problematic behaviour. Thus while the aim of the Cosmopolitan piece was arguably to avert moral discussion of ambiguous cases, and so depict them as simply unfortunate occurrences that are not the fault of anyone in particular, my aim is precisely to focus moral scrutiny upon them.
I gave a brief account of my underlying moral theory in my first post, though I will extend it somewhat here. The basic premise of this theory is Kant's principle of humanity, which states that we should not treat other people simply as means to our own ends, but treat their interests or desires as valuable ends in their own right. Following this idea, we can think of the seeking out of sexual consent as an attempt to ascertain that the other parties concerned have a genuine interest in the proposed sexual act. Conversely, the essential wrong of sexual violence is indifference or outright hostility to the interests of the other party in a sexual act. In the case of indifference, the other's body becomes a mere means for the aggressor to pursue their own sexual pleasure (or other interests). In the case of hostility, the aggressor might specifically seek to override the other party's interests, as an act of spite, or in order to assert or consolidate power over them.
The virtue of this theory is that it gives us a framework for thinking about not only the paradigm cases of sexual assault, but also the "grey area"-type cases. The essential points to be made here are: (i) that concern for another person's interests comes in degrees, and a person can exhibit insufficient concern while not being totally indifferent or hostile; and (ii) this lack of appropriate concern is often manifested in manipulative or otherwise problematic behaviour. In what follows, I will discuss some cases illustrating these basic points.
A Disclaimer
Before discussing the true "grey area" cases, however, I'd first like to discuss some cases of coercive sexual assault (i.e. which do not fall into grey areas) but nevertheless can result in moral confusion because they fail to conform to the dominant paradigm in other respects. It seems to me that most of the examples cited by Stepp fall into this category. The biggest source of confusion here is that the dominant paradigm produces certain expectations about the relationship that is supposed to exist between assailant and victim, and the way that a victim is supposed to feel during and, as a survivor, in the aftermath of an assault. In the dominant paradigm, the experience of being sexually assaulted is without exception uniquely awful and traumatising, the survivor does not have a close relationship with the assailant, and certainly does not retain any feelings of intimacy or warmth towards them after an attack, the survivor is motivated to obtain vengeance upon the attacker, and so on. While many instances of sexual assault do conform to various aspects of this paradigm, many do not.
While not diminishing the experience of those who are traumatised by an assault, we should recognise that many people report the experience as being deeply unpleasant, awkward and/or confusing, but not resulting in any lasting trauma. Moreover, many survivors are sexually assaulted by intimate partners or other loved ones, and have no desire after the assault to see these people in prison or even punished at all. Often what they really desire is simply an acknowledgement of wrongdoing and an apology. Or perhaps a survivor doesn’t want to think of themselves as a survivor of sexual assault, with all the connotations of powerlessness and being “damaged goods” that our society loads upon such a person. Someone who has been assaulted under one of these "alternate paradigms" may be left unable to articulate their grievance precisely because terms like "rape" and "assault" seem too "big" - and too laden with legal significance - to capture their experience and how they would prefer their grievance to be addressed.
For example, in the course of demanding that the full force of the law be brought to bear on rapists, Jenny Diski describes her own experience of being raped as a young teenager as follows:
Why there are grey areas
Although the grey area cases I present below might appear prima facie quite distinct, an important feature that many have in common is that the person performing a sex act does so in fear of negative consequences if they do not perform it. It is morally relevant whether or not those negative consequences are under the control of the person attempting to elicit sexual behaviour, but a person can also be morally culpable for taking advantage of another person’s fear of negative consequences which are under neither person’s control. What seems important is whether a person, A, knew (or ought to have known) that a prospective sexual partner, B, feared negative consequences for refusing sex, and whether A worked to lessen the impact of those consequences (as opposed to simply ignoring them or working to increase them).
That these negative consequences may vary in severity – from severe physical injury or death on one extreme, to mild embarrassment or awkwardness on the other – is precisely what creates such a broad “grey area” between coercive sexual assault and blameless sexual behaviour. We in effect define “consent”, and thus “sexual assault”, by reference to a particular point along a spectrum of increasingly constrained choices. For legal purposes, it is often worth drawing essentially arbitrary lines like this. But I will not be making any argument about where the legal line should fall exactly. Rather, I hope that I can facilitate greater moral scrutiny of behaviour along the entire spectrum.
The gendered dimension of this picture also should not be ignored: it is a feature of our society that a woman is often made to fear negative consequences from refusing sex with a man. This concern is at the heart of the radical feminists’ argument for problematising consent in heterosexual sex generally. My view is that this argument makes a worthwhile point, but risks “flattening out” the complex landscape of consent in yet another way. Even within a system characterised by gross power balances, we can and should distinguish degrees of moral culpability, and these distinctions might help us to interrogate and improve our own interpersonal behaviour.
It is also worth pointing out that an analogous set of “grey areas” arises due to differences in cognitive capacity between parties to the sex act. Broadly, the concern here is not that B will suffer negative consequences from refusing sex, but that B might be permanently or temporarily lacking in cognitive capacity in such a way that even voluntary sexual activity might not reflect their considered interests. The cases in question here may concern intoxication with alcohol or other drugs, developmental immaturity, mental disability and so on. Although I will not deal with these cases in detail, I simply wish to point out that they appear to have a similar “structure” to the cases involving fear of negative consequences, in that cognitive capacity might be diminished to various degrees. Sex with a person who is mildly drunk might be morally questionable, but not as questionable as sex with someone who is unable to carry on a conversation or understand clearly what is happening.
The cases
As I outline grey area cases involving fear of negative consequences, I will proceed roughly from “darker” to “lighter”, though I don’t intend that these rankings should be viewed as definitive. The darkest cases, naturally, are those corresponding to the paradigm of coercive assault – sexual acquiescence is obtained through threat of violence, or by actual use of force to perform a sexual act upon an unwilling person. The next set of cases worth discussing are those where coercion is not applied to generate acquiescence for a particular sexual act, but where acquiescence is obtained within a generally coercive context. For example:
Slightly less morally problematic cases arise as A’s relative power over B becomes less pronounced. For instance:
The previous two cases concern a relationship of financial or material dependency, but similar problems can arise where there is a relationship of emotional dependency:
The attribution of blame to A is, however, somewhat complicated in this type of case. While B is acting partly from fear of negative consequences rather than any personal interest in sex, A does nothing to actively bring about this fear. Indeed, A might not even realise that B feels this way. The coercion is exerted “impersonally”, by a general social climate, not by A directly. Moral culpability in this sort of case arises through negligence. If it is a general fact about the society in which they live that a person is B’s situation is expected to provide sexual favours, regardless of their interest in sex, then A is arguably under some obligation to ascertain this fact and act to alleviate this expectation in the particular situation. It is not my intention to develop this argument in any depth, or to define precisely the degree to which A is culpable. All I wish to state here is that, contrary to what many people may believe, this is not a morally neutral situation. A’s behaviour ought to be subject to moral scrutiny, and could be improved.
Conclusions
I have argued that the essential wrong of sexual assault lies in lack of respect for the interests another person has in having (or not having) sex, and that this lack of respect may come in degrees. The class of morally problematic behaviour upon which I focus is the application of fear to secure compliance for sex in which the coerced party has no interest (or an interest against). In practice, we define “consent” as agreement which is secured without inducing the fear of “sufficiently” serious negative consequences, and I would argue that some such definition (though not necessarily the existing one) is probably appropriate for legal purposes. I have argued, however, that sex which is appropriately deemed “consensual” may still be morally problematic, and ought to be interrogated in our interpersonal moral reckonings around sex.
It was a very unpleasant experience, it hurt and I was trapped. But I had no sense that I was especially violated by the rape itself, not more than I would have been by any attack on my person and freedom.It is also this sort of consideration which leads Charlotte Shane to write:
I resist calling any of my bad sexual experiences rape, at least in part because their impact on my sanity and happiness was negligible in the long term.... To call it rape seems too self-pitying, too histrionic. It feels like the entry card to a club in which I have no place, a group populated by PTSD sufferers and girls who cry themselves to sleep at night. It automatically implies a level of emotional damage that did not take place.Another recent personal account of this sort of dynamic playing out is described here. Again, this is not to deny that these experiences are rape, merely to try and explain why many survivors might decline to explain their experiences in these terms. These sorts of experiences, while undoubtedly of very serious concern, are not the main subject of my discussion.
Why there are grey areas
Although the grey area cases I present below might appear prima facie quite distinct, an important feature that many have in common is that the person performing a sex act does so in fear of negative consequences if they do not perform it. It is morally relevant whether or not those negative consequences are under the control of the person attempting to elicit sexual behaviour, but a person can also be morally culpable for taking advantage of another person’s fear of negative consequences which are under neither person’s control. What seems important is whether a person, A, knew (or ought to have known) that a prospective sexual partner, B, feared negative consequences for refusing sex, and whether A worked to lessen the impact of those consequences (as opposed to simply ignoring them or working to increase them).
That these negative consequences may vary in severity – from severe physical injury or death on one extreme, to mild embarrassment or awkwardness on the other – is precisely what creates such a broad “grey area” between coercive sexual assault and blameless sexual behaviour. We in effect define “consent”, and thus “sexual assault”, by reference to a particular point along a spectrum of increasingly constrained choices. For legal purposes, it is often worth drawing essentially arbitrary lines like this. But I will not be making any argument about where the legal line should fall exactly. Rather, I hope that I can facilitate greater moral scrutiny of behaviour along the entire spectrum.
The gendered dimension of this picture also should not be ignored: it is a feature of our society that a woman is often made to fear negative consequences from refusing sex with a man. This concern is at the heart of the radical feminists’ argument for problematising consent in heterosexual sex generally. My view is that this argument makes a worthwhile point, but risks “flattening out” the complex landscape of consent in yet another way. Even within a system characterised by gross power balances, we can and should distinguish degrees of moral culpability, and these distinctions might help us to interrogate and improve our own interpersonal behaviour.
It is also worth pointing out that an analogous set of “grey areas” arises due to differences in cognitive capacity between parties to the sex act. Broadly, the concern here is not that B will suffer negative consequences from refusing sex, but that B might be permanently or temporarily lacking in cognitive capacity in such a way that even voluntary sexual activity might not reflect their considered interests. The cases in question here may concern intoxication with alcohol or other drugs, developmental immaturity, mental disability and so on. Although I will not deal with these cases in detail, I simply wish to point out that they appear to have a similar “structure” to the cases involving fear of negative consequences, in that cognitive capacity might be diminished to various degrees. Sex with a person who is mildly drunk might be morally questionable, but not as questionable as sex with someone who is unable to carry on a conversation or understand clearly what is happening.
The cases
As I outline grey area cases involving fear of negative consequences, I will proceed roughly from “darker” to “lighter”, though I don’t intend that these rankings should be viewed as definitive. The darkest cases, naturally, are those corresponding to the paradigm of coercive assault – sexual acquiescence is obtained through threat of violence, or by actual use of force to perform a sexual act upon an unwilling person. The next set of cases worth discussing are those where coercion is not applied to generate acquiescence for a particular sexual act, but where acquiescence is obtained within a generally coercive context. For example:
1. A has been violent or emotionally abusive towards B in the past. B detects that A is building up towards abusive behaviour over an unrelated issue, and initiates sex as a way of “pacifying” A. They proceed to have sex.It is possible that a sex act in these contexts would be prosecuted as a sexual assault under existing legal definitions. But I think attempting to determine whether B “consents” in this case, as we would have to in a legal context, somewhat misses the point. Although we should hold A accountable for the way in way they have constrained B’s sexual choices, to blame A for this alone, as we tend to do by asking whether or not this particular event counts as sexual assault, is to miss all the other ways in which A’s pattern of abusive behaviour has unjustly constrained B’s choices. B makes a choice under serious constraints, and is for setting up those constraints that A should be blamed, and possibly punished, not the choice that B makes within them.
Slightly less morally problematic cases arise as A’s relative power over B becomes less pronounced. For instance:
2. A is B's employer, and has the power to fire B and thus significantly hinder B's life prospects. A asks B to have sex, and B agrees.Unlike many of the examples cited here, this pattern of problematic behaviour has a name – sexual harassment – and is often attached to legal sanction. However, a similar dynamic arises in relationships that involve an informal rather than formal relationship of dependency. For example:
3. A has offered to do B a significant favour, which B has gratefully accepted. Some time later, A asks B to have sex, and B agrees.In these sorts of cases, the behaviour is more blameworthy if the threat of negative sanction is for any reason more plausible or salient. This might arise if, for instance, A is known to have fired employees for refusing sex in the past, or if this pattern has manifested previously at the company where they work.
The previous two cases concern a relationship of financial or material dependency, but similar problems can arise where there is a relationship of emotional dependency:
4. A and B are in a long-standing sexual relationship, but when B declines sex, A often becomes angry and they end up having an unpleasant argument. On one particular occasion, A asks B to have sex, and B agrees. (It should be mentioned that this sort of situation is often compounded with material dependency, for instance, if B is dependent on the income that A brings into their joint household.)More subtle yet are those occasions when the threatened negative consequence takes the form of relatively temporary social unpleasantness. We might describe such a situation as “pressured consent”, various examples of which are discussed here under the stronger title of "forced consent". The cases generally follow this schema:
5. A asks B to have sex. B expresses unwillingness by offering some reason why sex is not possible or desirable at this time. A offers a counterargument or rejects the proffered reason as inadequate. B then assents, and they proceed to have sex.Finally, negative consequences might arise out of general societal expectations that are never explicitly articulated between the parties:
6. B visits A’s home. While they are both there, A asks B for sex. B worries that A would be disappointed and feel rejected if B declined, and so accepts. They proceed to have sex.What creates the negative consequence here is the general societal norm that a certain sort of context is “expected” to result in sex, and that a person who wanted sex might legitimately be disappointed if this was not the outcome. This is a highly, though not exclusively, gendered norm: women are, in many contexts, made to feel that they have been rude or even malicious if they have “led on” a man. And it is the manifestation of a more general norm that one (male) person’s desire for sex is in some sense more morally significant than another (female) person’s desire not to have sex on a particular occasion. It is, of course, ironic that this norm facilitates morally problematic behaviour precisely by encouraging a feeling of moral discomfort or guilt in the very party who is likely to be harmed by the behaviour!
The attribution of blame to A is, however, somewhat complicated in this type of case. While B is acting partly from fear of negative consequences rather than any personal interest in sex, A does nothing to actively bring about this fear. Indeed, A might not even realise that B feels this way. The coercion is exerted “impersonally”, by a general social climate, not by A directly. Moral culpability in this sort of case arises through negligence. If it is a general fact about the society in which they live that a person is B’s situation is expected to provide sexual favours, regardless of their interest in sex, then A is arguably under some obligation to ascertain this fact and act to alleviate this expectation in the particular situation. It is not my intention to develop this argument in any depth, or to define precisely the degree to which A is culpable. All I wish to state here is that, contrary to what many people may believe, this is not a morally neutral situation. A’s behaviour ought to be subject to moral scrutiny, and could be improved.
Conclusions
I have argued that the essential wrong of sexual assault lies in lack of respect for the interests another person has in having (or not having) sex, and that this lack of respect may come in degrees. The class of morally problematic behaviour upon which I focus is the application of fear to secure compliance for sex in which the coerced party has no interest (or an interest against). In practice, we define “consent” as agreement which is secured without inducing the fear of “sufficiently” serious negative consequences, and I would argue that some such definition (though not necessarily the existing one) is probably appropriate for legal purposes. I have argued, however, that sex which is appropriately deemed “consensual” may still be morally problematic, and ought to be interrogated in our interpersonal moral reckonings around sex.
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