4 – Rape and the Law

Sexual violence in the UK (Rape Crisis England and Wales)

- 1 in 4 women have been raped or sexually assaulted as an adult (6.54M)
- 1 in 6 children have been sexually abused
- 1 in 18 men have been raped or sexually assaulted as an adult (1.34M)
- Roughly 789,000 women are raped/sexually assaulted each year
- 1 in 2 rapes against women are carried about by their partner or ex-partner
- 91% of people prosecuted for sexual offences are men aged 18+
- 6 in 7 rapes against women are carried out by someone they know
- 5 in 6 women who are raped don’t report to the police
o 40% said ‘embarrassment’
o 38% said they didn’t think the police could help
o 34% said they thought it would be humiliating
- 4 in 5 men don’t who are raped don’t report to the police
- Oct 2022 – September 2023: 67,938 rapes were recorded by the police

Legal understanding of rape

- How should rape be defined legally?
- What requirements should be satisfied for providing criminal liability?

- Given rape is committed overwhelmingly by men, and usually against women and
girls, there is a tendency in scholarly literature to assume male perpetrators and
female victims
- Rape: “carnal knowledge of a woman forcibly and against her will” (W. Blackstone,
Commentaries on the Laws of England, 1769)
o Forcibly – the man used physical force, or threat thereof, to obtain sexual
intercourse
o Against her will – the woman did not consent, ie. resisted “to the utmost of her
physical capacity” to express her non-consent
- Against common-law rape
o Feminist oppose the dual requirement of force and nonconsent, taking it as
redundant, and as defining many rapes out of existence
o Many feminists maintain that the force requirement should be eliminated, and
rape should be defined as nonconsensual sex
o Nonconsent has been interpreted in two main ways, requiring:
 The presence of refusal (‘no model’)
  The absence of affirmative consent (‘yes model’)
- Nonconsent – the crux of rape
o 74 Consent: “a person consents if he agrees by choice, and has the freedom
and capacity to make that choice.”

Consent-based models of rape law

- The No Model
o Advanced by Susan Estrich (Real Rape, HUP, 1987)
o Rape: a man obtaining sexual intercourse with a women who physically
resisted or verbally expressed her refusal
o Key features
 Consent defined “so that no means no” (p.102)
 Sexual penetration is legal unless the women physically or verbally
opposes it
 Aims to prevent sexual expropriation
o “At one end of the spectrum is the ‘real’ rape [...]. A stranger puts a gun to the
head of his victim, threatens to kill her or beats her, and then engages in
intercourse. In that case, the law [...] generally acknowledges that a serious
crime has been committed. [...] Where less force is used, where threats are
inarticulate, where the two know each other, where the setting is not an alley
but a bedroom, where the initial contact was not a kidnapping but a date,
where the woman says no but does not fight, [...] the law [...] often tell[s] us
that no crime has taken place». (S. Estrich, “Rape”, 1986, p. 1092)
o Virtues
 The no model definition is more capacious than common low and
better suited to capture cases that deviate from stereotypical rape
 This model does not require the man to employ physical force (beyond
that required to engage in nonconsensual penetration)
 This model does not require the women to physically resist (let alone
“to the utmost of her capacity” – does require verbal refusal
o Drawbacks
 Silence = consent in this definition
 Perpetuates the false presumption that women are interested in sex at
any time, unless their unwillingness is very clear
 Drunkenness and unconsciousness makes someone unable to say no
 This is at odds with the ways victims often react to sexual trauma
 Peritraumatic paralysis (deer in headlights effect)
o State of involuntary temporary motor inhibition that
prevents individuals from moving and speaking
 o Estimated to affect about 70% of rape victims (A.
Möller et al., “Tonic Immobility During Sexual Assault
[...]”, 2017)
 Peritraumatic dissociation
o State of depersonalisation, typically combined with
feelings of indifference, emotional detachment and
profound passivity
o Estimated to affect around 20% of rape victims (M.G.
Griffin et al., “Objective Assessment of Peritraumatic
Dissociation [...]”, 1997)
- The Yes Model
o Advanced by Stephen Schulhofer (Unwanted Sex, HUP, 1998)
o Rape: a man obtaining sexual intercourse with a women without her
affirmative permission
o Key features
 Consent = “actual words or conduct indicating affirmative, freely given
permission to the act of sexual penetration” (S. Schulhofer, Unwanted
Sex, p. 283)
 Sexual penetration is illegal unless the woman grants permission for it
(through words or behaviour)
 Aims to protect sexual autonomy
o Virtues
 Women’s silence is not the same as yes
 [A]n intrusion on the person requires more than just the
absence of a clear “no.” [...] Would anyone think that a medical
patient’s ambivalence, or an ambiguous “maybe,” was a
consent to medical treatment or surgery? Obviously, anything
less than clear affirmative permission would never count as
consent. [...] Why should the physical autonomy of a woman’s
body not be entitled to the same respect in a sexual encounter?
[...]. Consent for an intimate physical intrusion into the body
should mean in sexual interactions what it means in every other
context – affirmative permission clearly signaled by words or
conduct. (S. Schulhofer, “The Feminist Challenge in Criminal
Law”, 1995, p. 2181)
o Drawbacks
 The idea that a woman can express yes nonverbally
 If she doesn’t say ‘no’, and if her silence is combined with
passionate kissing, hugging, and sexual touching, it is usually
sensible to infer actual willingness (S. Schulhofer, Unwanted
Sex, pp. 272-73).
 People may choose to engag in petting and sexual preliminaries
but not in penetration to avoid pregnancy or STDs
 Once engaging in sexual preliminaries, the no model supplants
the yes model, AND VERBAL RESISTANCE IS REQUIRED
AGAIN
 Relies on men’s ability to accurately read women’s body
language
 o Psychological research shows that men tend to
misinterpret women’s non-verbal behaviour by
imputing sexual intent where there is none (K.P.
Lindgren et al., “Gender Differences in Perceptions of
Sexual Intent [...]”, 2008)

A Critique of Consent
- Catharine MacKinnon and Michelle Anderson have argued against the nonconsent
requirement
- They provide a critique of consent with 3 main objections
o Consent in an inherently asymmetrical notion
o The presence of consent does not guarantee equality
o Consent-based rape law wrongly focusses on the victims actions, rather than
the perpetrators
- Consent is asymmetrical
o Consent means to grant someone permission to do things that they would not
have the right to do otherwise
o Involves agent-patient asymmetry between parties
o Consent as a concept describes a disparate interaction between two parties:
active A initiates, passive B acquiesces in or yields to A’s initiatives. In sexual
relations, the unequal stereotypical gender roles of A’s masculinity and B’s
femininity [...] are the obvious subtext. In heterosexuality, [...], these roles tend
to map onto men and women respectively, making A often a man and B often a
woman. [...] Intrinsic to consent is the actor and the acted-upon. [...] Put
another way, the concept is inherently an unequal one. (C. MacKinnon, “Rape
Redefined”, 2016, p. 440)
o When one consents to action X, it is all about what the requester gets to do,
not what the consenter gets to do
o Consent narratives involve the requested doing things to the consenter; not
WITH the consenter
o Intrinsic to consent is the actor and acted upon
o In heterosexual sex, gendered social scripts mold men into actors and women
into acted-upon
o Sexual consent presupposes a woman’s acquiescence to man’s initiative, he
actively requests sex and she lets or refuses to let him do things to her
- Consent doesn’t guarantee equality
o The presence of consent makes an interaction tolerated – not necessarily equal
o Consent can be acquiescence to the less costly of alternatively
o Consent is taken to stand in for desire “this is consent’s credibility cover”
according to MacKinnon (Rape Redefined, p 450)
o Legally valid consent in rape law ranges from desire to resignation to fear
 Under unequal conditions, many women acquiesce in or tolerate sex
they cannot as a practical matter avoid or evade. Many initiate sex to
stop other abuse and do their best to make it sexy so it will end quickly.
That does not make the sex wanted. It certainly does not make it equal.
It does make it legally consensual in most jurisdictions. (p. 456)
- Consent puts victims on trial
o Consent analysis focuses on the rape complainant
  Her words and actions – her dress, reputation, personal history – gets
scrutinised to determine whether she consented
 By doing so, it minimises the perpetrators responsibility while blaming
victims for the abuse
o A fair investigation should begin with defendant and focussing on what they
did

Alternative models of rape law

- The Gender Inequality Model
o Catharine MacKinnon (“Rape Redefined” , 2016)
o Rape: a physical invasion of a sexual nature under circumstances of threat or
use of force, fraud, coercion, abduction or of the abuse of power, trust, or a
position of dependency or vulnerability
o This definition
 Includes but is not limited to sexual penetration
 Is gender neutral
 Gets rid of consent and broadens force – when deployed to compel sex,
gender, race, class, caste and structural inequalities, count as force
- A crime of inequality
o MacKinnon sees rape as a crime of inequality
o Her model does not prohibit all sex between unequals
 For a criminal conviction, it is necessary to show the exploitation of
inequalities, their direct use, not merely the facts that they contextually
exist
 While gender, race, class etc are all hierarchies, they become
implicated in rape only when deployed as forms of force to compel sex
o MacKinnon does not claim that under conditions of male dominance, all
heterosexual sex is rape
- Objection: Too underdetailed
o MacKinnons understanding of force is insufficiently detailed to support an
effective legal strategy
 No clarification as to what counts as “circumstances of threat, force, or
coercion”, and it is not clear whose perspective should determine this
 MacKinnon claims that, to establish rape, one needs to show the
exploitation or direct use of inequalities
 What does this entail?
 Is a man who asks a woman out and takes the initiative sexually
using his power as a man to achieve sex?
 (see L.H. Schwartzman, “Defining Rape [...]”, 2019.)

- The Negotiation Model

o Michelle Anderson “Negotiating sex” (2005)
o Rape: engaging in sexual penetration with another person without actively
consulting her first and having reached an agreement
o Definition
 Is limited to sexual penetration
 Is gender neutral
 Gets rid of force and consent, is pivoted on negotiation (consultation
and agreement)
 o This model requires
 Consultation (before penetration occurs)
 Must be verbal unless partners know one another very well and
have establishes a context between them in which they can
reliably read one another’s non-verbal behaviour
 When people engage in sex for the first time, verbal
consultation is mandatory
 Agreement (as to whether penetration should occur)
 Dynamic and active – if two persons agree to engage in
penetration and then one expresses no (verbally or physically),
then there is no longer an agreement between them
o Virtues
 Model requires partners to engage in negotiation, and silence is never
adequate to constitute negotiation (meeting at a party, drinking alcohol,
and making out would not constitute a negotiation for sexual
penetration)
 Focuses on legal issue where it should be: not on actions of the victim,
but actions of the defendant (what did they do to obtain an
understanding of whether both partners wanted the sexual intercourse
in the first place)
o Objection: a yes model in disguise?
 Is the negotiation model just a yes model with a verbal-yes rule?
 Negotiation processes typically end with yes or no
 Anderson’s reply
 Conceptual shift – the negotiation model differs in spirit from
other versions of the yes model, as it emphasises mutuality
rather than a one-sided permission seeking
 Procedural shift – traditional rape law asks what did she do to
acquiescence to penetration? The negotiation model asks what
he did to obtain her agreement before penetration?
o Objection: people are not used to negotiating sex
 Negotiation sex is against social and sexual mores
 People may fail to negotiate sex as they are not used to it, and
therefore commit rape
 Anderson’s reply
 Before or once rape law based on negotiation is passed, there
should be widespread public education
o On the ethical and legal importance of negotiation, how
to negotiate sexual desires and boundaries (e.g. role
play activities)

From nonrape to good sex

- Rape law sets the criteria for non-criminal sexual intercourse
- Between nonrape and good sex, there’s a whole spectrum of possibilities
- Can negotiation move towards good sex end of the spectrum?
o Quill Kukla says yes
 Negotiation can enable full and healthy sexual agency
 Broader conception of negotiation, involving consultation about
whether to have sex, but also how to have it and how to exit it
 o Example: safe words
 Safe words – tools for exiting from a sexual activity at any time and
without having to explain oneself
 Semantically irrelevant – so no room for miscommunication
 Allows people to engage in activities, explore their desires and
experience pleasures that would otherwise be too risky,
expanding their space of opportunities for sexual agency
 Paradigmatic home of safe words – BDSM community, but also
can be useful for traditional sex among young people
 (R. Kukla, “‘That’s What She Said’: The Language of Sexual
Negotiation”, 2018.)

Any legal definition of rape implies some correlative idea of what is morally
wrong with it (e.g. its illegitimate use of force, or its disregard of the victim’s
nonconsent).

Philosophers have tried to articulate a more nuanced understanding of

rape’s wrongness than the law alone can provide.