Tuesday, May 02, 2017

Unwitting Rape

This is a spin-off of a thread in this post. Content warning for rape. Probably not necessary or recommended reading for most readers.

In a long and wide-ranging comment thread a commenter called Thomas expressed some disagreement with some of the things I said about sexual assault and rape culture. In the comment that most directly led to this post, Thomas wrote, in part:
Part of the trend we [Thomas and Kipnis]'re worried about is the emergence of a category of crime without mens rea. Some Title IX advocates go so far as to say it is possible to rape someone without knowing it.
I replied:
I think it is completely obvious that it is possible to rape people without knowing it. Beyond question.
If you think it's pretty obvious that it's not possible to rape people without knowing it, then we may not have enough common ground to have a fruitful discussion.
Here's Thomas again:
Given the seriousness of rape, both for those that it happens to and those that stand accused of it, I don't think we should just accept this lack of common ground. I think intelligent people like you and I should work to establish it. The best way forward is for you construct a clear hypothetical case; think of this like a Gettier problem.
To just not have this conversation misses an important opportunity. After all, my ethics and epistemology is presumably that of the typical "unwitting rapist". If we get this right, we might be able to prevent some rapes.
I decided to take the bait. I agree that this is an important topic. So let's try. I'm answering in a new post in part because I thought this might be of broader potential interest, and in part because when I was typing I exceeded the character limit for a comment.

I think that rape is sexual activity with someone who isn't consenting to it. That's a pretty standard definition. One can fuss about what exactly counts as sexual activity, but that doesn't matter for this question. Take as clear a case of sexual activity as you can imagine. Someone puts their penis inside someone's vagina and ejaculates, say. Call that activity "P". (I don't want to keep typing it.) All parties agree that P is sexual activity, so if P is done without consent, that's sufficient, according to my definition, for rape.

So, can one P without consent, without knowing that one is raping? Certainly. One obvious way this is possible is for someone not to know what rape is. If one has never heard of rape, or has false views about rape—if, for instance, one thinks that it doesn't count as rape if it's your wife—then one may engage in P without consent without knowing that one is raping. If so, one rapes without knowing that one is raping.

This isn't the only way.

Since P without consent is sufficient for rape, there can be unwitting rape if there can be cases of P without consent, where the subject doesn't know that they are cases of P without consent. I think it's obvious that there are such possible cases. This is to be expected on general grounds, and it's also the intuitive thing to say about some particular cases.

First, the general grounds. It would be very surprising if P-without-consent was the kind of thing that one can only do if one knows that one is doing it. (Indeed, I'm pretty well convinced by Timothy Williamson's arguments that no non-trivial state is such that one can only be in that state if one is able to know that one is in that state.) Almost everything you can do, you can do without knowing that you're doing it. Why would P without consent be an exception?

What would such a case look like? We can imagine cases where one doesn't know that one is doing P. That's a little far-fetched, but it's conceivable. (You want a Gettier case? OK, imagine a "fake prostitute" brothel, with lots of realistic robots, but our subject just happens to be in the room with the one real woman.)

It's much easier to imagine cases where one doesn't know that one's partner does not consent. Here's a simple case: the partner says "no, I don't want to have sex with you," and our rapist doesn't believe her. He thinks—genuinely, honestly believes—that, her protestations notwithstanding, she wants it, so he does P. That's a rape he doesn't know (or even believe) that he committed.

I would have thought these were obvious cases anyone would agree with. Even Kipnis, I would have thought, would countenance these examples of unwitting rape. At any rate, I didn't notice her saying anything to the contrary. And that's something I think I would have noticed.

There are other kinds of important cases, where I'd expect more people to disagree. Suppose X just assumes without asking that Y wants to have sex with them, and so does P without asking. This will be a case where X doesn't know whether or not there's consent. But if there's not consent, it's rape. You may wonder, why didn't Y say something to make it clear that they didn't consent? There are lots of possible answers to that question—a common one is shock and fear—but they're not relevant to the question of whether this was a rape. Maybe X guessed right, and Y did consent. Then it wasn't rape. But X's action was a pretty terrible idea. They did something that could easily have been rape. So whether one is a rapist can be in part a matter of luck. (You may think that's weird, but it's totally normal. Whether one is a murderer can also be in huge part a matter of luck. Did the victim survive?)


Notice, in light of the very general challenges facing luminosity (the idea that there are conditions C such that being in C guarantees being able to know that one is in C), any conception of rape is going to have this feature—the feature of being such that it's possible to do it without knowing that you're doing it. (Maybe you think in order to rape, you have to KNOW that there's not consent. OK, but sometimes one is wrong about whether one knows that there's not consent. There are always going to be examples.)

Thomas also asked me:
But let me ask you a completely serious question: do you think *you* could commit a rape without knowing it? Or is this something that you imagine only a different kind of person could do? What kind of person is that? How would they be different from you ... and, I hope you'll grant, I?
This is a very personal question about my own sexual dispositions. I'll just say this: I certainly hope that I am the kind of person who is pretty careful not to rape people. But I sort of think anybody can screw up in pretty much any way. There's no mistake I'm sure I would never make in any possible circumstance. I don't really care to talk about different "kinds of people" in the way suggested.


  1. Thanks for this, Jonathan. Like you I think it's important enough to devote some energy to sorting out the details. (For those who are interested I wrote a two part reflection on a very relevant exchange Kipnis had with some students at Wellesley about this.)

    The cases you suggest do actually force me to correct my statement. You are right that "it is possible to rape someone without knowing it." What is harder to imagine is being *guilty* of rape without knowing it.

    I recently heard of a disturbing real-life example of a man who has reason to think he has consent, even though the woman clearly says no. A man arranges to help a woman live out a rape fantasy online. As arranged, he shows up unannounced at her apartment. As expected, she fights back and, as agreed, he violently subdues and rapes her. You've probably guessed the problem: the arrangements were made by a different woman for the purpose of revenge. While it's hard to know exactly what he could have done differently (the supposed fantasy was to be raped by a stranger) the man is guilty of some sort of failure of due diligence (and I certainly think a court might be right to hold him accountable for something), but it can be argued that he is not guilty of rape. The person who arranged this hit is guilty of rape.

    Your robot example is a bit different, but also instructive. If the robots simulate ordinary consensual sex with a prostitute, then we'd expect the woman (who isn't a prostitute) to refuse. As this point he might rape her in the false belief that she's a robot. But he's still intentionally raping her; in his mind he's just raping a robot. He's not doing this "unwittingly". If he's been told that he can expect the robots to refuse, or he's paid for the experience of raping someone, then we're in a case that looks a bit the revenge hit case I described. Again, the guilty party is the one that put the real woman in this situation.

    Now, if she's in the brothel by complete accident, we have a case that is really worth thinking seriously about. Because in that case we have a man who justifiably believes he has consent for the roughest of sex (presumably he is allowed to even damage the robot if he pays for it) and does not have to take any sort of no for an answer. The woman is in a terrible situation and she has most definitely been raped. But the man, I would argue, is not *guilty* of rape. (His therapist will of course have his work cut out for him in proving this to him, but his recovery will depend on it, I imagine.)

    What this shows is something very important: raping and being raped are not simply two sides of a single interaction. Likewise *giving* consent and *having* consent are not as directly related as we sometimes think.

    This, again, is why Kipnis and I believe that women (especially) should learn how to assert their refusal clearly and firmly. A man might reasonably believe he *has* consent where the woman might just as reasonably believe that she did not *give* it. A court must decide whose conclusion was most reasonable. And, here, strong unambiguous signals of refusal are very useful.

  2. PS. There's a simpler example that might summarize much of my comment. Suppose a couple is engaging in a rough sex rape fantasy, and the woman forgets the safe word. Here the man has consent, and the woman even gave it (before they began). She merely forgot how to withdraw her consent at the crucial moment. This is arguably a case in which we have an unwitting rape. An interesting twist would be to consider whether it matters *whose* rape fantasy is being indulged.

    Again, my point (and Kipnis's point) is that consent is not a simple matter. It's an ability we have; it's something we learn how to do. Before getting ourselves into situations where our consent is very important, we should be sure we know how to give it.

    1. I am very scared of people like you. Interesting twist? Fuck. Are you forgetting that we are talking about rape? A thing that happens and FUCKS THE LIVES of 1 and 3 women?

      While this is all quite intellectual, and I am not really an ivory tower woman, I think it would be useful here to look at a real easy (and painfully common) case of unwitting rape.

      I was raped by a man, who I consented to have sex with. We were having sex and it really really hurt. I told him it hurt and to stop, multiple times, he did not stop. He however did not (and probably still does not) think he raped me.

      I assume he did not know that if I revoked consent, it was rape. In fact, I'd guess he had no idea he had to get consent in the first place or that consent could be withdrawn. Is he guilty of rape?

      I assume that he had no intention of raping me. I think he just wanted to fuck, and when I told him to stop and he kept going. I assume he wasn't​ thinking "I'm going to rape her." But rather, a jumble of justifications to continue may have crossed his mind, if that, based on what he has learned about sex and women from our culture.

      Maybe things like, only strangers and evil men lurking in bushes rape women, so this isn't rape.

      She does want it, even though she said stop.

      I should be allowed to finish.

      You can't rape someone who you're already having sex with.

      I'm almost finished, it won't be a big deal if I keep going.

      The male orgasm is more important than her comfort.

      Or based on my brief survey of what dudes are thinking about during sex, he probably wasn't putting together coherent thoughts at all.

      Is he guilty of rape?

      Does he have to have correct beliefs about the definition of rape to be guilty of it?

      There is NO WAY he would be charged with rape if I had taken that to court. Not a hope in hell.

      Does that mean he didn't rape me?

      Imagine living with that shit.

      Now gentlemen, I'm not really asking for your opinion. In fact, I beseech you NOT to give me your opinion. My trauma, though presented here as a counter arguement, is not up for debate.

      This squabble makes me pretty sick to my stomach, and I am sure other rape victims feel the same way.

      When we intellectualize and make thought experiments about things that happen every single fucking day to women (and men) all around us, perhaps instead of *imagining* scenarios where this could go down, we could just ask real women (or men) about their experiences and we will find a plethora of these kinds of cases.

      Let's make this real, and then maybe it will be easier for us to understand how fucked up it really is, and maybe give it more thought as not just a 'crime' but rather a reality. No more sex robots.

      You can ABSOLUTELY be guilty of rape without intending to rape someone. Ask most women, and they will give you a great example of some dude in their life who would never classify themselves as a rapist, but has definitely raped people.

      My point is, you are not talking about inert objects here. If you want clear examples of unwitting rape, ask, it has happened to a lot of us. We don't need sex robots or kinky scenarios gone wrong to show that this can and does happen, frequently.

      When you use these fabricated or extreme examples of raping without being guilty of rape, victims like myself are eye rolling all over the place.

      These ridiculous thought experiments do absolutely fucking NOTHING to help anyone.

      Isn't that the point of all this? To stop rape culture? To prevent rape? To stop poor menz from being accused of rape because they don't know any better? Ignorance is not an excuse and talk of guilt or innocence is not necessarily helpful either.

      The pulling apart and raising of these outlier cases, that are extreme and improbable, and unrelatable to the average victim or perp, do way more damage than good. We need actual solutions, not intellectualizing of bullshit examples.

      Oh and fuck you.

    2. (This obviously isn't a response to the anonymous commenter, who I assume isn't reading responses.)

      The case described here sounds to me like an unambiguous case of rape. If she said, "Stop, you're hurting me," and he doesn't stop, and she repeats it and pushes on him or shifts her weight, so that he is only able to continue by force, there isn't any doubt. If he says, "I didn't know she wanted me to stop," he is surely disingenuous. If he says, "Yeah, she wanted me stop, but I still had her consent" he's being incoherent. If says, "I had a right to continue despite not having consent" he is saying, "I have a right to rape women," which is wrong, but it does not make him the unwitting rapist we're talking about.

      The case is actually reminiscent of the one discussed by the Wellesley students. The thing that puzzles me here, too, is the idea that the rapist might still be in the dark about what he has done. Kipnis, I think, is trying to say that women should avoid ending up in bed with men who don't understand what consent is, or who don't know how to interpret "Stop, you're hurting me." These are the sorts of things women are trying to decide about a man *before* they go to bed with him, i.e., whether the couple will be able to communicate their needs and desires to each other. Part of this is being able to communicate (afterwards) that he violated her trust and (if possible) to re-establish that trust. Or even just that he did something mildly annoying or disgusting or otherwise unpleasant. The fact that none of this was possible here says something about the man, to be sure, but also about the relationship.

      This terrible case gives a strong negative reason for ensuring that this sort of communication is possible. But there are also many positive benefits to being able to communicate needs and desires. As the father of a son and a daughter these are not ridiculous thought experiments or bullshit examples. They are helping me decide what to teach them about sex and intimacy. About how to avoid the worst of it and enjoy the best of it.

      (So, if you are reading along after all, Anonymous, please accept my sincere thanks for sharing. I'm sorry that you had to do it in anger. But I really don't feel that anger to be directed at me. It's pretty clear who you're angry at, and rightly so. Be well.)

  3. In response:

    " If she said, "Stop, you're hurting me," and he doesn't stop, and she repeats it and pushes on him or shifts her weight, so that he is only able to continue by force, there isn't any doubt."

    So if I didn't shift my weight or forcable fight off this dude twice my size, there is still some doubt as to what he was doing? HA! Spoken like someone who has never been raped. Have you read any of the studies or work on what ACTUALLY happens during rape to women? Freeze response? Disassociation? Your response isn't based on any empirical or ancedotal evidence.

    "If he says, "I didn't know she wanted me to stop," he is surely disingenuous. If he says, "Yeah, she wanted me stop, but I still had her consent" he's being incoherent. If says, "I had a right to continue despite not having consent" he is saying, "I have a right to rape women," which is wrong, but it does not make him the unwitting rapist we're talking about."

    This isn't a thought experiment, there was no conversation about whether he raped me or not. Being 'coherent' does not a label make.

    You make it seem like every rapist is some intellectual who can rationalize all this before, after and during the incident. Some people are ignorant.

    If he would never be convicted of rape in court, and he doesn't understand consent or what rape actually is, he can still be guilty of raping someone.

    "Kipnis, I think, is trying to say that women should avoid ending up in bed with men who don't understand what consent is, or who don't know how to interpret "Stop, you're hurting me." ..."

    Because we aren't trying to avoid that? Gimmie a break.

    I'm pretty selective about who I choose to sleep with, yet this happened to me - and that is somehow my fault because I should have more carefully screened him? I cringe at how often I hear the phrase victim blaming thrown around because I thought we all understood that it is ridiculous, yet here I am.

    You do realize I don't have any way to know if a dude is a rapist right? You do know that most people who are raped, are raped by someone they know right?

    I had no reason to believe my 'rapist' would rape me. He seemed to always be respectful and we enjoyed eachother's company. I knew him (and dated him) for years before this happened. If years of evidence is not enough to decide if someone is a rapist before you sleep with them, I am at a loss.

    You are also forgetting that rape doesn't just happen to adults with fully formed boundaries. Young people engage in many a sexual escapades without any concept of consent, boundaries or what rape actually is. Does that mean because they don't know how to screen for rapists or talk about consent they aren't technically being raped or they are at fault somehow for their rape or sexual assualt? Risky conclusion.

    Many men I am related to 'play devils advocate' kind of like what seems to be going on here, without ever knowing what has happened to me. I hope that by defending people or victim blaming you are not creating an environment for your daughter (or son) where they don't feel safe to come to you if something happens, or that they don't feel because of the beliefs you are espousing that are to blame if something happens to them, because they didn't feel safe to revoke consent or shift their weight. If this kind of discussion or side taking is creating an unsafe environment for people you love, maybe you will reconsider how you talk about it.

    1. Do you or do you not want to discuss it? The issues you raise are important, including how the views you espouse about rape affect the ability of others to come to you for support. It's altogether possible that this conversation will (and perhaps already has) affected the way I talk about rape (and sex generally) with my friends and family. If I just kept my views to myself that would not happen, of course.

    2. Other anon,

      Agree men play 'devil's advocate' with mixed motives. And the desire of philosophers to stay aloof from emotion sometimes creates a kind of blindness that lets perversion creep in.

      That said, I think the readiness to abstract from people's individual experiences to pose questions and differentiate between cases isn't meant to be a kind of violence to your feelings, or a disregard for them. It is, unfortunately, the only method we've found to arrive at a level of understanding that can results in ideas or systems that can accommodate the experiences of a group as a whole in a reasonable way.

      I would consider your former partner to have committed rape. It would be rape under the prior "no means no" standard. He was hurting you, you asked him to stop repeatedly, and he didn't.

      I can imagine it would be strange to parse that as a miscommunication. And it must be baffling that you had known him for years, dated him for years, presumably had sexual encounters with him before, only to have him suddenly reveal a selfish and vicious side of himself which had no consideration for you or your well-being.

      What doesn't necessarily follow from his misconduct is that we should engineer an entire bureaucracy to apply a rigid standard unfairly to the young, inexperienced, often drunk sexual experiences of college students, tell them how they are required to interpret those experiences, and cast so wide a net that we drag in all sorts of stray behaviors and actions (including things like writing an essay, failing to provide a trigger warning, or raising an awkward subject in a classroom discussion) and stigmatize the people who perpetrate them, sometimes taking away their jobs or expelling them, and tarnishing their reputations, all while treating them with the scorn we would normally reserve for an "in the bushes rapist", and grouping all behaviors as part of a larger cultural pathology.

    3. That last paragraph is exactly on point.

      I want to stress that I was not "parsing" the rape "as a miscommunication". I was saying that communication appeared to be unable to stop it, nor even to clarify what happened afterwards.

    4. Anonymous Sense5/06/2017 01:26:00 AM

      Right, I wasn't suggesting you were doing that, yourself. Only that some of the talk about consent recognizes that possibility. And in fact - although unless someone brings a lawsuit, the Title IX stuff is out of the public eye - I did see a comment from an administrator once, I think in a series the Chronicle of Higher Ed did a couple of years ago - the admission that most of the cases they saw involved mutual drunkenness and "miscommunication" - and when you're dealing with 18 year olds who met an hour ago, drunk, inexperienced, and hooking up in the dark, and the complaints are sometimes things like "He was doing 'x' to me and I enjoyed it, but then he suddenly started doing 'y' without asking, but I didn't say anything, and I waited until he stopped, and then I reported the trauma after I talked it over with some friends", the label in that case would seem fair.  

      There are also cases like "We were both drunk and I don't remember it but I felt sore in the morning so it must have been rape."

      Those are, I think, reductive and unjust interpretations, with bureaucratic and cultural power working to disambiguate what is sometimes ambiguous, and to label more and more things as "sexual misconduct."

      What complicates it, for me, is that I don't think we exactly live in a "rape culture", or a "rape apologist" culture, but a culture which understands rape to be so horrible, traumatizing, immoral, and what has become the crime of crimes, second only to child sexual abuse, that any time a story emerges, there are some conservatives who say harsh things like "Regret isn't rape" or "Women lie" or "She was asking for it" - but some of the hesitation to reflexively damn the accused comes, I think, from a desire to de-escalate, to minimize, and to have the relief of thinking that a horrible, traumatizing, immoral thing did *not* occur.  

      What all that means is that it's very, very difficult to coolly dissect accusations, because the subject tends to make everyone uncomfortable and irrational. I worry that we're such an idiot species that our brains can only handle one of two norms on this: err on the side of exculpating men with a "he said, she said" agnosticism, or err on the side of witch trialling the innocent with a "Women never lie", "To ask questions of the accuser is to traumatize her", "We're not even going to tell you the full accusations against you, or the evidence" - and even, in some cases, giving administrators training materials which are f*cking absurd - one at Stanford, I think, says something like "The more a man protests his innocence, the more likely he is to be guilty." That's like, swap "man" and "he" for "witch" and "she" and it's witch-trials verbatim.

  4. One of the things Kipnis points out, and which I think it is very important to point out to young people, perhaps especially women, is that you are very vulnerable during sex. This is why it is important to either be careful when choosing a partner or, if you want, actively enjoy the "danger" of it--at your own risk.

    This does often come off as "victim blaming", but part of it is just that most people who are consensually naked and in bed together are also *alone*, which means you are not just unprotected: there are no witnesses. So, in a certain sense, you have to accept whatever happens.

    If we weren't talking about rape, it would perhaps be possible to point out that that's also the whole point of sex: to "survive" a moment of absolute vulnerability and therefore grow closer to the other person. If a Title IX (or actual police) officer is, in principle, there in the room with you, "policing" the situation, then we're not really experiencing the requisite vulnerability, nor the resulting tenderness.

    1. Anonymous Sense5/06/2017 12:52:00 PM

      But it's not fair, and men don't carry that risk, just like they don't carry the risk of pregnancy. And so women aren't able to participate in casual sex culture without assuming a huge amount of risk - and I feel like many young women feel tremendous social pressure to be open to it, and be "sex-positive" and not a prude (much of that coming from the same people who are ringing alarms about rape).

      So in some way, asking men to take on the risk that they could be wrongly accused and punished is a counter-weight to the risks that a woman can become pregnant, or be raped and disbelieved.

      Which is ironic, because I think that single risk has scared a lot of men off sex. One quote from an athlete - back in the CHE series a couple of years ago - was something like 'a girl has your future in her hands.'

      On the sex-positivity, I've joked that the mixed messages students are getting from adults must be mind-boggling. Like, get as drunk as you want, and sex is great! Here's a free seminar on vibrators. We left some BDSM gear in all the dorm bathrooms, and condoms. And the number for the sexual assault hotline should be on your phone favorites!

      Like, simultaneously pushing sex, and rather emotionally intense and outre kinds of it, acting like it's as fun as Disney World, and everyone will turn a blind eye to binge drinking and the concomitant disinhibition and impaired judgment, but it's also full of incredible danger, and any boy who gets the least bit handsy, you just call us right away and we'll get the police on it. And if he gets handsy and you're *not* traumatized, what are you, a bad feminist?