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Rape is wrong. Uncontroversial. But what is rape? The U.S. Department of Justice has finally made a giant step toward catching up with the 21st century complexities of this issue.
Photo by Eric the Fish
On Friday, January 6, 2012, Attorney General Eric Holder announced changes to the Uniform Crime Report's definition of rape. Since 1927 the federal definition of rape has been "the carnal knowledge of a female, forcibly and against her will." The revised definition includes "any gender of victim or perpetrator, and includes instances in which the victim is incapable of giving consent because of temporary or permanent mental or physical incapacity, including due to the influence of drugs or alcohol or because of age" ("Department of Expands Justice Definition of Rape."). Commentating on this move in an NPR interview, victims' advocate Scott Berkowitz praised the new definition because it "comes much closer to reflecting the reality of the crime. It happens to men and women, young and old, but in every case, it's an incredibly violent crime and we owe it to victims to acknowledge and count every one."
As an ethicist, I hope that this legal move will renew widespread public discussion of the important moral issues surrounding sexual consent. Make sure that there is consent is a vital rule. Easily said, but not simple to do. Especially after a casual sexual encounter, someone might say, "What do you mean you didn't want to have sex? Why'd you invite me up to your room then?" If one person but not the other assumes that not saying "no" is the same thing as consenting to an escalated level of sexual intimacy, harmful misunderstanding--even rape--can be a consequence. (See Don't Be Seduced and One Seducer's Awakening.)
Consent is an act rather than a state of mind. If consent is an act, it needs to be given; it should not simply be assumed in the absence of any sign to the contrary. Lack of a "No" is not equivalent to a "Yes." This means that it is a mistake to infer consent to sexual activities from the absence of an explicit "No."
As most state laws, and now the federal government, acknowledge, consent is also complicated by such factors as age-differences and the murky role of alcohol and drugs in sexual encounters. Mere verbal agreement is not valid consent. A child cannot validly consent to sex. Fraud and coercion are other conditions that invalidate consent. So does intoxication.
Ogden Nash became well known in the twentieth century for writing catchy and humorous short poems. Nash said, "Candy is dandy, but liquor is quicker." Nash's poem makes the cynical point that wooing a woman by sending her small presents like candy might eventually lead to sexual intimacy, but if you want to speed things along, get her drunk.
Before the term "date-rape" was invented, this poem counted as funny.
