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Monthly Archives: March 2016

On Rape, Coercion and Consent

Scott Allen Anderson, Conceptualizing Rape as Coerced Sex, Univ. of British Colombia (2015), available at SSRN.

Scott Anderson’s article Conceptualizing Rape as Coerced Sex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.” So understood, rape is the criminal act of “either creating or taking advantage of pre-existing differentials in the ability and willingness to use force or violence,” toward the end of obtaining sexual gratification from the victim. The power differentials that render the pressure “coercive” are quintessentially created through direct force, violence, or threats of violence, but might also include taking physical advantage of another who is mentally or physically incapacitated because of intoxicants or cognitive or mental impairment. Most important, though, the power differentials at the core of the “coerciveness” that renders sex rape might be facilitated not by direct threats, but by drawing upon “the link between the threatener and others of a similar kind who have used similar powers in the past.” When sex is “coerced” in any of these ways, such that the victim is not able to “usefully or reasonably ignore, deflect, evade, or work-around the enforcement of the threat,” then the sex that results should be understood as rape.

Note that on Anderson’s account the victim’s consent or non-consent is not part of the definition of the crime (although it may enter as a defense). Rather, the definition focuses squarely on the assailant’s acts and mental states, rather than those of the victim: did the assailant create or take advantage of pre-existing differentials in the ability and willingness to use force or violence” to obtain sex. Nor does it require direct force: rather, the “differentials” in power that facilitate the rape may pre-exist the act itself, and may be as much a function of the similarity between the agent and others similarly situated, as anything the agent himself does in the particular encounter. This coercion-based account, Scott argues, would avoid both the under-inclusiveness of definitions of rape that center on force, and the possible over-inclusiveness of definitions of rape that center on consent. More significantly, it would better capture both what is distinctively harmful about rape, why rape is overwhelmingly (but not universally and certainly not by definition) a crime committed by men upon women, and why rape is a constitutive aspect of gender subordination to women’s detriment.

I believe this piece is an original and powerful contribution to the extensive rape literature, and a much needed intervention that might change the direction of a very longstanding and very stalemated debate. Let me briefly suggest why. The “rape debate” as it has existed for three decades now can be divided into three camps. On one side are, traditionalists, who define rape as (some variant of) “nonconsensual, forced sex” – thus requiring both non-consent and force (and sometimes adding on a requirement of “utmost resistance” for good measure), and on the other are reformers, all of whom view the traditional definition as at best redundant (because it requires both force and nonconsent) and at worst, dangerously under-inclusive. More specifically, the traditional definition – that requires both force and nonconsent – excludes rapes that are forced but arguably “consensual” where the consent is dubious (such as “date rape,” “marital rape” or “rape with prostitutes,” each of which, at various times in the near past, have been viewed as either literally or virtually consensual), and also excludes nonconsensual sex where there is no visible force (such as rapes where no force is required or used for the threat of violence to be viable). The dangerous under-inclusiveness of the traditional definition has prompted two camps of reformers: those who want to drop the force requirement altogether leaving rape defined as nonconsensual sex, and those who want to drop the consent requirement and define rape as forced sex.

But – both positions are problematic. There are several problems with the first (and dominant) reform position – that we should simply define rape as nonconsensual sex. Anderson focuses only on one: a lot of sex might be nonconsensual that really no one would want to make criminal. Sex obtained by fraud, for example, (obtaining sex by lying about one’s intentions or background) might be both immoral and nonconsensual in some important sense, but probably shouldn’t be a crime. Likewise, Anderson argues, some sex overrides a woman’s lack of consent in circumstances that clearly involve boorish and immoral behavior but not behavior that should be made criminal – such as where a partner in a long standing relationship eventually relents to her husband’s romantic overtures, but does so only “to get a good night’s sleep” – she doesn’t want the sex and at no time explicitly consents to it. So, a definition of rape as nonconsensual sex is simply too broad. The problem with the second definition – define rape as forced sex – is that such a definition limits the crime to sex obtained by either the use of force or the threatened use of force – thus leaving legal many marital, date, or acquaintance rapes where the threat of force is implicit rather than explicit – OR it defines “force” so broadly as to encompass virtually all sex – all sex, or at least all penetrative sex, requires some use of force. But more generally both “consent-based” definitions and “force-based” definitions run the risk of either trivializing the crime of rape by defining it in such a way as to encompass what are seemingly innocuous or at best immoral sexual transactions, or defining the crime so narrowly as to not pick up what seem to be seriously criminal and dangerous acts that do profound harm to victims. So the debate is badly stalemated at an unfortunate stopping point: we have a host of unpalatable legal-definitional choices.

Against that backdrop of a stalemated debate in which both sides hold seemingly untenable positions, Anderson’s intervention is very welcome. Anderson seems right to insist that coercion is the missing element in our understanding of rape: it is coercion, he argues, not either force or non-consent per se, that renders the sex that is obtained through various credible threats, so harmful. It is also coercion, as Anderson understands it, which ties the act of rape to the broader subordination of women – it is, on his account, the shared societal understanding of the background differentials of power between men and women that facilitates coercive sex. Thus, non-consensuality is not enough to make sex so seriously harmful as to be criminalized – but also, non-consensuality is not, at root, the point. We do indeed suffer harms to which we do not consent on a frequent basis (Anderson suggests, as an example, the harm suffered by the promisee when a promisor breaks a promise) some of which is innocuous. And, force is not the gravamen of the crime either: We can be seriously harmed by rapes which are not facilitated by either violence or the threat of it. The wrongness of rape and the harms of rape do seemingly stem, at least in substantial part, from the fact that the sex is coerced from the victim through a use or manipulation of power differentials between men and women that convey a credible threat whether or not such a threat is uttered, and thus facilitates the rape even in the absence of force. I think the piece succeeds in its general aim: Anderson promises to show, and does show, how such an understanding better accounts for the particular harms of rape, the ways in which rape occasions harms more profound than what might be occasioned by nonconsensual sex that is not coercive, and how it can occur even in the absence of direct force.

The coercion account directly resolves – because it directly addresses – a number of problems in the various reform positions on rape. Most important, it illuminates the role of power in rape, in a way that consent-based definitions, as well as the reform movement that embraces them, do not, and which force-based definitions – which do explicitly address rape an abuse of power – tend to confuse. Consent-based reforms identify the harm of rape as stemming from infringements on victims’ autonomy, by virtue of the baseline fact that their consent has been overborne. This both runs the risk of over-criminalizing sexual acts where consent is overborne for reasons having nothing or little to do with unequal power – such as deceit (as Rubenfeld complains) or fraud – and missing near entirely the nature of the harms rape occasions in both its direct and indirect victims: the ways in which it stems from and underscores the power differentials that make rape an overwhelmingly gendered crime and thereby reinforces as it relies on men’s physical power over women, and the potential for coercive behavior that differential entails. Force-based reforms, on the other hand, tend to not have a sufficiently nuanced account of the nature of power or force – the force required to coerce sex might originate in a socially shared understanding of the power imbalance generally between men and women. As a result, the force required in the rape itself by virtue of the definition of rape might be so great as to exclude a good bit of coerced sex which ought to be criminalized, at least to some degree: coerced sex that occurs because of a credible threat, given background conditions, but where no force is required or present. The coercion account of rape, unlike either the consent or force account, therefore points directly to the relation between the crime of rape and the subordination of women, both in the way rape is defined, and in the way it is explained and understood. For that reason alone, it is in my view a conceptual breakthrough.

There are of course problems. Some are obvious: for one, it is hard to see how the account of the “background differentials” could be codified into a rape definition. But there is also, I think, a problem with Anderson’s discussion of the inadequacies of consent-based reform movements that may not be so obvious but which might be of greater importance. In discussing the possible over-inclusion problem with consent definitions, Anderson distinguishes three cases. In the first a woman and her long-term partner awaken in the morning, the man makes sexual overtures, the woman tells him she’s not in the mood, the man persists, and she eventually relents – by which Anderson means that she “stops pushing him away and telling him ‘no’”– leaving her “somewhat peeved.” And, Anderson states, she “never explicitly gives consent to sex.” In the second, a woman tells her occasional lover to come over but that she is not interested in having sex, he comes over, they begin to kiss, after foreplay she tells him to leave, because it is “past her bedtime,” he doesn’t, she “simply gives in and allows him to have sex with her, without giving express consent, figuring that it’s the only way she’ll get to sleep.” In the third, a college student in a dorm kisses and fondles a woman who has come to his dorm room, she rebuffs him saying “No I gotta go, let me go,” he ignores her, gets up and locks the door, “picks her up, puts her on the bed….and has sex with her, despite her repeatedly saying ‘no, no’.”

Anderson argues that in all three cases the woman has not consented, but only in the third has there been a rape. He then analyses the differences between them in terms of coercion: coercion is present in the third case, but not in the first two. Thus, the result reached under an understanding of rape as coercion, best fits our intuitive understanding that the behavior in the third case is far worse than in the first two, and so much worse as to be criminal, while the first two should not. Therefore, the consent standard, which renders all three cases rapes, is a worse fit with our intuitions than a coercion standard, which would clearly classify the third case as a rape but not the first two, even though all three involve nonconsensual behavior.

I agree with Anderson that the first two cases should not be classified as rapes, and that the third should. I disagree, though, that the first two cases involve sex that is “nonconsensual.” It seems to me that in both of these cases the woman has consented, although the consent has not been express. The woman has in both cases voluntarily acquiesced, or submitted, and it seems to me that that act of acquiescence – because she wants a “good night’s sleep,” because its not worth the hassle, for whatever reason – is indeed consent. For Anderson’s purposes, I’m not sure this difference between us matters: I agree with him that there are other scenarios of truly nonconsensual sex that don’t involve coercion and that ought not to be criminalized for that reason. Some of the sex-by-deceit cases that also concern Rubenfeld, I think, fit into this category. So I agree with Anderson’s general point that coercion, rather than consent, is a better fit with our general intuitions about what sorts of sexual conduct ought be made the subject of criminal prosecution.

I do think it matters, though, for other purposes, whether we categorize the sex in the first two scenarios above as consensual or not. Many of us – particularly sexual liberals and libertarians – have a very general tendency to think that only nonconsensual sex can possibly be immoral, and that immoral sex, if it is truly immoral, simply must be nonconsensual. But this just isn’t true – there may be reasons to be critical of sexual behavior that is both consensual and legal, but nevertheless harmful and immoral. Some consensual sex in other words should be subject to moral and even political criticism. Women acquiesce in sex such as what is described in Anderson’s hypotheticals above very frequently. Sometimes, women do so for precisely the reason Anderson suggests – to get a good night’s sleep. Sometimes they do so for a host of other reasons: to avoid a boyfriend’s bad mood, to placate a husband who may otherwise refuse to be cooperative with other household responsibilities, because of peer pressure, because of a sense of religious obligation. Whatever the reason, she is consenting to and then engaging in unpleasurable and unwanted sex.

The cumulative effect of consenting to unpleasurable and unwanted sex might in turn be harmful – they all manifest an imbalance in the relative importance a woman ascribes to her own hedonistic pleasures and desires compared to that of her partner. Doing so repeatedly – engaging in unwanted, consensual sex – might harm a woman’s sense of physical self-possession, limit her autonomy, undermine her own moral integrity, and lead to self denigration, as she places her own sexual pleasure and desire, or lack of desire, second to that of the felt imperatives of her partner’s desires. That imbalance in self regard on the one hand and regard for the importance of the sexual drive of her partner on the other, might itself be one of the background conditions that facilitates broader patterns of gender based subordination, both in the sexual sphere but also elsewhere. It might be part of why so many view rape as not a significant crime. And, it might also be a part of why women tend to be bad economic negotiators, have problems raising their hands in law school classrooms, minimize their physical presence through shrinking postures, engage in excessive private altruism in their private lives – and so on. If it is, then we should attend to the harms we may be doing ourselves when we near-habitually consent to sex we don’t want – as the two women in Anderson’s hypothetical above are doing. Sometimes that consensual unwanted sex might be innocuous – we may consent to unwanted sex out of genuine and reciprocated love, for example. But often it may not be. Consensual unwanted sex can undermine our sense of self, and thus our ability to negotiate a liberal world. When we repeatedly engage in sex we don’t want, we risk having an undermined sense of self become our pervasive self definition. We shouldn’t so undermine ourselves – and we should tell our daughters (and sons) likewise.

Over-defining non-consent – concluding wrongly that there’s no consent where we have in fact consented, particularly in sexual contexts, but where we don’t want or desire that to which we’ve consented – I believe, has a host of bad consequences, only one of which is that it results in the over-criminalization of the act to which consent has in fact been given. It also tends to underscore – and perpetuate – our fetishistic overvaluation of consent as a marker of value. Anderson wants to argue that we sometimes withhold consent from sexual transactions even where there is no coercion – and that consequently non-consent should not be the mark of sexual harm, and therefore should not be essence of the crime of rape. That might be right, and I tend to think it is. But we also sometimes consent to sexual transactions we don’t want, in circumstances that might or might not be coercive. We should be aware of that class of behavior, so that we might subject it to moral and political scrutiny – whether or not the behavior in question is something which the law ought to regulate. The viability and opportunity for that critical lens is what Anderson’s tendency to collapse nonconsent with unwantedness – shared by and I think a result of larger societal forces – sacrifices.

Let me emphasize though that this undue collapse of nonconsent with unwantedness – if it is one – is incidental rather than central to Anderson’s project here. He wants to define rape in such a way that it does not pick up sexual transactions which on his description are nonconsensual but also noncoercive, and which on my description are consensual but unwanted. We both agree that these sexual transactions might be immoral but that they should not be criminal. I might think they are more harmful than Anderson believes them to be, but I agree with him that they should not be criminal. I don’t think that these examples usefully distinguish non-consent from coercion as the marker of rape – because I believe they are in fact consensual, and would not and should not be the subject of a rape prosecution for that reason. But I agree with Anderson that there are likely instances of nonconsensual sex that are also noncoercive and that should therefore not be criminalized – even if the particular examples he provides fail.

Anderson’s larger point, though, in this piece – that we should understand the gravamen of the crime of rape as well as the harm of rape to lie in its coerciveness, rather than its nonconsensuality – seems entirely right, and convincingly argued. I hope that it is widely read and debated. It could conceivably break the rape debate stalemate, and in a highly productive direction.

Cite as: Robin West, On Rape, Coercion and Consent, JOTWELL (March 15, 2016) (reviewing Scott Allen Anderson, Conceptualizing Rape as Coerced Sex, Univ. of British Colombia (2015), available at SSRN), http://juris.jotwell.com/on-rape-coercion-and-consent/.