I have begun to wonder whether the concept of “rape” is useful as an umbrella term covering many instances that do not resemble each other strongly. This is particularly noticeable in marginal and edge cases, where it seems to me worth doing to dissolve the question and taboo the word (e.g. diagnosing situations as “this person fucked up here and here, that person is likely to be dangerous in the future, the third person is probably in the ethical clear but not relationship material” or whatever). I don’t expect anyone who reads this post to find all of these examples ambiguous, but I think probably some of them will seem so. They get weird in places. I ran out of letters of the alphabet before I ran out of ways to make the concept of rape confusing, so feel free to add more ideas. All of the rape-related content warnings.
1 – Alice agrees to PIV with Bob as long as he’ll go down on her after, because she doesn’t orgasm from penetration and she isn’t interested if she doesn’t get off. PIV ensues. When it concludes, Bob dumps her on the spot and doesn’t go down on her. Has Alice been raped?
2 – Alice agrees to sex with Bob as long as he gives her permission to sleep with her friend Caleb later. Sex ensues. Bob then reverses himself on letting Alice have sex with Caleb and says he’ll break up with her if she does it. Has Alice been raped?
3 – Bob agrees to sex with Alice as long as she’ll do the dishes the next morning, since otherwise he wants to get them handled tonight. Sex ensues. The next morning, Alice doesn’t even touch the dishes. Has Bob been raped?
4 – Bob agrees to sex with Alice as long as she’ll do the dishes the next morning. Sex ensues, and then Alice dumps him on the spot and never touches the dishes. Has Bob been raped?
5 – Caleb agrees to have sex with Doug if Doug promises not to mention this to anybody Caleb knows. They have sex, and then Doug tells Alice, a friend of Caleb’s. Has Caleb been raped?
6 – Doug finds out that Caleb has a lot of weird porn on his computer, and Caleb suggests that they could have sex and Doug could refrain from telling anyone about the weird porn. They have sex. Has Caleb been raped? If he hasn’t, does Doug later telling Alice about the weird porn change that?
7 – Elise and Felicity agree to have sex, but Elise makes Felicity promise not to laugh when she sees her naked; if she can’t be sure that there will be no laughing she’d rather not have sex. Felicity promises. They start to have sex, but on Elise’s back is written The Funniest Joke In The World, and when Felicity sees it she cannot help but laugh. Has Elise been raped?
8 – Elise and Felicity go through the exact same sequence of observable behavior as before, except now Felicity laughs voluntarily because she is a mean person. Has Elise been raped?
9 – Gail and Hal are planning to have sex, when Hal says something transphobic, including among other statements that he never, under any circumstances, wishes to have sex with a trans person (but not including any direct threats of violence against trans people). Gail strongly expects that bailing on sex at this stage for any reason short of an earthquake will lead Hal to suspect that she is (post-op) trans, which in fact she is. Due to fears about her safety, she proceeds to have sex with him. Have either Gail or Hal been raped?
10 – Gail and Hal go through the exact same sequence of observable behavior as before, except now Gail is motivated to continue by spite. Have either Gail or Hal been raped?
11 – Gail and Hal go through the same sequence of observable behavior as before, except now Gail is motivated to continue by Hal having a really nice ass. Have either Gail or Hal been raped?
12 – Gail and Hal go through the same sequence of observable behavior as before, except now Gail comes up with a plausible excuse about a migraine that she doesn’t think will cause Hal to think she’s trans; but she is unwilling to lie to his face about having a headache. Have either Gail or Hal been raped?
13 – Irene, due to a peculiar set of genes and/or being an unaging vampire, looks like an eleven year old girl when she is 26. John, also 26, believes she is eleven and invites her (without anything that would paradigmatically constitute coercion) to have sex. They do, without Irene opting to disclose her age. He is an obligate pedophile and would not have been interested if he knew her real age. Have either of these people been raped or committed rape?
14 – This time, Irene invites John to have sex and they do. Have either of these people been raped or committed rape?
15 – This time, Irene tells John that she is 26 but he doesn’t believe her. They have sex anyway. Have either of these people been raped or committed rape?
16 – This time, Irene tells John that she is 26, he isn’t sure if he believes her or not, and she says that unless he has sex with her, she’ll tell someone else that he did – someone else who still thinks she’s eleven. Have either of these people been raped or committed rape?
17 – Katie, due to a peculiar set of genes and/or a time travel accident, looks 26 when she is in fact eleven. Laura, actually 26, invites her (without anything that would paradigmatically constitute coercion) to have sex. Katie, principally out of curiosity, agrees without opting to disclose her age. Have either of these people been raped or committed rape?
18 – This time, Katie invites Laura to have sex and they do. Have either of these people been raped or committed rape?
19 – This time, Katie tells Laura that she’s eleven but Laura thinks she’s joking. They have sex anyway. Have either of these people been raped or committed rape?
20 – This time, Katie tells Laura that she’s eleven and Laura believes her, but pretends not to, and they have sex anyway. Have either of these people been raped or committed rape?
21 – Myron goes around routinely asserting to anyone who will listen that he thinks the concept of “too drunk to consent” is bullshit unless you’re actually passed out. Myron gets completely blackout drunk and sort of vaguely comes on to Noah, who is familiar with Myron’s opinions. They have sex. Has Myron been raped?
22 – Now Myron lacks the above opinion, but still gets blackout drunk and comes on to Noah. They have sex. Has Myron been raped?
23 – Now Myron is vocally against drunk “consent” to anyone (including Noah) who will listen, but still gets blackout drunk and comes on to Noah. They have sex. Has Myron been raped?
24 – Now Myron, insert any of the above opinions, gets completely blackout drunk and comes on to Noah such that Noah stopping him would require moderately violent scuffling, which Noah declines to undertake. Have either of these people been raped or committed rape?
25 – Ophelia firmly believes that the concept of marital rape is nonsense and that her wedding vows constitute irrevocable consent for so long as she remains married to her husband Paul. One day Paul asks her if she wants to have sex and she says she’s not really in the mood and he has sex with her anyway. Has Ophelia been raped?
26 – As 25, except Ophelia is mid-divorce-proceedings and Paul knows it. Has Ophelia been raped?
27 – As 25, except Ophelia has always kept her beliefs about the implications of their wedding vows to herself. Has Ophelia been raped?
28 – As 25, except Ophelia dramatically resists (locking herself in the bathroom, trying to shove Paul away after he breaks in, screaming and crying the entire time). Has Ophelia been raped?
29 – Quentin is a college professor. Ruby is his student, and she knows who he is but he can’t identify her because there’s like three hundred people in that lecture. He hits on her at a coffeeshop and she has sex with him because she thinks he’s hot. Have either of these people been raped or committed rape?
30 – As 29, but Quentin knows that Ruby is in his class.
31 – As 29, but Ruby sleeps with him because she wants blackmail material.
32 – As 29, but Quentin knows that Ruby is in his class and expects to be able to control her with her grade.
33 – As both 31 and 32 combined.
34 – As 29 but neither of them can identify the other because there’s like three hundred people in that lecture and also Ruby is faceblind.
35 – As 29, but Quentin later identifies Ruby and threatens her grade to get a repeat performance.
36 – As 29, but when Ruby’s grade falls due to an exam graded by a teaching assistant, she blackmails Quentin to change it.
37 – Sarah is an eighteen year old homeless runaway and Terrence has a house. Sarah offers to sleep with him routinely in exchange for crash space, and he agrees, making it clear that he isn’t interested in having a roommate he isn’t having sex with. Have either of these people been raped or committed rape?
38 – As 37 but it’s Terrence’s idea.
39 – As 37 but Sarah reneges, betting that Terrence won’t really kick her out; when he really does she sleeps with him to get the couch back.
40 – As 37, but Terrence’s cooperation is contingent on Sarah not having any STIs, and she has one she lies about.
41 – As 37, but Sarah’s offer is contingent on Terrence having had a vasectomy, and he hasn’t, which he lies about.
42 – As 40 and 41 combined.
43 – Ursula’s boyfriend Vince can only communicate via an assistive communication device. It breaks. Ursula has sex with him in a relatively conventional-for-them manner. Has Vince been raped?
44 – As 43, but Vince can make noises for “yes” and “no” which Ursula is 85% accurate in interpreting and she thinks she hears “yes”. Does the answer depend on whether she’s right?
45 – As 43, but Vince and Ursula had specific plans before the device broke to have sex in this way at this time.
46 – As 43, but Ursula introduces something new to spice it up a bit.
47 – Winston, Xavier, and Yvonne have an agreement as a triad that they will not get Yvonne pregnant or take any risks with that until all of them agree, and that if one of the boys gets her pregnant, the other boy must be told immediately and gets the house in the dissolution of the triad. This is mostly for Xavier’s benefit, as he would want to leave them both immediately if they did this. While Xavier is away, Winston and Yvonne have unprotected sex. They don’t tell Xavier and continue having sex with him as normal. Has Xavier been raped?
48 – As 47, except Yvonne tampers with a condom so that it will tear while Xavier is having sex with her, as cover.
49 – As 47, except Winston tampers with a condom so that it will tear while Xavier is having sex with Yvonne, as cover. Has Xavier been raped? Has Yvonne?
50 – As 47, except they consider telling Xavier until he comes home and expresses that he’s so glad they’d never betray him since if they did he’d probably murder them both.
51 – As 47, except they tell Xavier that Yvonne was sexually assaulted by a fourth party.
52 – As 51, except the concern is not pregnancy but Winston’s as-yet-untransmitted HIV.
53 – Zoe has persistent rape fantasies and a Star Trek holodeck. She manufactures a holographic representation of an attractive celebrity, turns off some safeties, and programs the hologram to rape her, which it does. She is not having fun anymore partway into the scene but can’t stop it. Has Zoe been raped?
54 – As 53, except Zoe enters the Rape Tunnel instead of her holodeck.
55 – As 53, except Zoe gets someone else to program the scene custom-order for her.
56 – As 53, except Zoe buys the holodeck program off the shelf.
57 – As 53, except that the safeties are still on and she’s just too freaked out to tell the holodeck to end the program.
15 thoughts on “Alphabetical Conundra”
Adding ideas (well, variants) as invited…
1.1 Alice agrees to PIV with Bob as long as he’ll go down on her after, because she doesn’t orgasm from penetration and she isn’t interested if she doesn’t get off. PIV ensues. When it concludes, Bob reveals that he’s really uncomfortable with going down on her and doesn’t want to do it. Alice declares that a promise is a promise and if he doesn’t follow through he will have revealed himself to be completely without honor. Oral ensues. Was Bob raped?
1.2 same as 1.1, except that Alice says breaking the promise would be rape and that she’d go to every authority figure who would listen with that claim.
9.1 same as 9, except that Hal is deeply committed to nonviolence and Gail knows it. She only fears for her own safety because she’s heard too many stories about violent transphobes to think clearly about Hal.
9.2 same as 9.1, but those stories were all lies made up by Ḥamad, who wanted to mess with her. Did Ḥamad rape either Gail or Hal?
9.3 same as 9.2, but Ḥamad is a skilled manipulator who saw this coming and intended it.
I don’t think rape can be thought of as a two way street. Someone can commit a sex act that is likely to violate someone’s consent, and someone can participate in a sex act that violates their consent, and these two things are entirely separate.
Does this stance allow you to produce answers to the 57 questions above?
Treating rape the same as murder seems to make things pretty simple, given that not all sexual misconduct–even misconduct that is or should be criminalized–is rape.
All of my answers are based on the assumption that key information isn’t missing.
16: Yes, assuming it happens. Alice has committed rape–or is attempting to, at least.
32: No, but it’s certainly preparation to commit rape.
33: Both of these people should be set on fire. Is that an option?
36-42: No. Fraud or theft, arguably, but 39 is iffy. On reflection, yes to 39.
Then they get tricky.
44: No, and no.
46: The complicated one. Maybe? It would depend on how certain a reasonable person in Ursula’s position would’ve been, which requires more info.
47-52: All no, though as in several other question sets so far, there’s a variety of other behavior that is or should be criminal.
This seems similar to racism-implicit bias and the klan are both bad, but calling them the same thing seems to generate more heat than light.
1-No, but Bob is a jerk.
1.1-Bob really shouldn’t have penetrated Alice if he didn’t want to uphold his end of the bargain, but withdrawn consent is still withdrawn consent. So, yes, but Bob is still a jerk, it’s just that Alice is apparently even more so.
2-No, but Bob is a jerk, and Alice is perfectly entitled to sleep with Caleb.
3-No, and if she just forgot and Bob didn’t push it then it’s not great but doesn’t really have one person in the wrong.
4-No, but Alice is a jerk.
5-No, but Doug is a jerk.
6-No, because it was Caleb’s idea, but if Doug tells Alice then he’s a jerk.
7-…Not if Felicity stops the sex when she starts laughing.
8-Yeah, kinda, but yes ambiguity exists. It depends on what Elise thinks.
9-Um. …Depends on how else Gail feels about the situation on her end, and Hal…even if he made no explicit threats of violence, violence against transpersons is common enough that Gail isn’t totally wrong to be scared. So, maybe as to whether either are victims, no to whether either are perpetrators. If that makes any sense.
9.1-Both were victims, neither were perpetrators.
9.2-Both were victims of Hamad. Whether this actually counts as Hamad being a rapist or just a really massive jerk depend on what exactly Hamad’s intentions were.
9.3-Both were raped by Hamad.
10-Gail, no, Hal, yes.
11-Gail, no, Hal, maybe. He did make the plans before making the statement, and it isn’t actually any of his business whether or not Gail is trans. It isn’t a great thing for Gail to do, but I’m not convinced it’s so terrible that she deserves to be branded a rapist.
12-Depends on why Gail is unwilling to lie. If she doesn’t think she’d be able to lie well enough in the moment and is scared of the consequences of failing to lie well, see nine.
13-Uhhhhh… First of all the situation is massively creepy. I wouldn’t say Irene raped John at all, since the prompt doesn’t say he tells her he wouldn’t be interested if he knew she were twenty-six. Whether it’s rape on her end depends, for one, on whether she is developmentally eleven or twenty-six or somewhere in between. If she is from an elf species that ages at slightly less than half the rate of humanity or similarly occupies an eleven-year old mentality then absolutely yes it is statutory rape. If she does in fact have the brain of a person who is old enough to consent, then she can hardly be said to have been victimized, but John is still a terrible person who needs to go to jail forever.
14-See answer to thirteen. If you are eleven-equivalency and inviting people to have sex with you then whoever oversaw your upbringing needs a smack in the face but that does not make it okay for them to say yes.
15-See answer to thirteen except that any possible ambiguity as to whether Irene has raped John is removed.
16-See answer to thirteen except that now John is getting raped too. Lovely. (not)
17-…Neither is morally responsible for having committed rape, but that is definitely not a thing that should have happened.
18-See answer to seventeen, except that whoever oversaw Katie’s upbringing needs a smack in the face.
19-See answer to seventeen.
20-Katie has been raped.
21-Depending on Noah’s own opinions, Noah may be a jerk, but Myron has not been raped.
24-If Myron’s opinions are as of twenty-one, only Noah has been raped. If Myron’s opinions are as of either of the others, they both have been, although neither is morally responsible for it.
31-No, but blackmail is still morally indefensible.
32-Not this time if he doesn’t actually threaten her grade, but any future times he does so would be.
33-No, and these idiots deserve each other. …Not literally, two wrongs don’t make a right, but.
35-Not the first time, but any later times yes.
37-Depends highly on the actual details of their “roommate agreement”
38-Same as thirty seven but somewhat more likely to be yes.
39-All kinds of morally sketchy but mostly depends on the details.
40-I honestly don’t know.
42-These are not nice people, are they?
43-Maybe, maybe not, but it depends on the details.
47-No, but it may be fraud.
48-The particular sex act involving the condom would be. Also, fraud.
49-They both were.
51-No, but Winston and Yvonne are really not being nice here.
52-See answer to fifty-one
53-No. Zoe is an idiot who is using equipment improperly and getting hurt as a result.
54-Yes. That thing should not exist.
56-How is that legal!? Also, probably
57-No, but it’s significantly less her fault than in fifty-three.
A man offers a woman, known to be a fan of Peter Singer, who otherwise wouldn’t want to sleep with him, a $5000 donation to Against Malaria Foundation conditional on her sleeping with him? The man makes it credibly clear that he won’t donate otherwise and that the money is not funging against any other donations. The woman will feel revolted and probably psychologically upset by the encounter (the man knows this but doesn’t care), but she estimates that this donation will save at least one child’s life and she thinks that failing to save that life is worse than any psychological damage she takes.
As 58, but the man was previously planning to give the money directly to the AMF, but when he discovered the female Singer fan, he decided not to donate unless the woman slept with him. The woman does not know this.
As 58, but the man would have given the money to AMF even if the woman refused to sleep with him, but the woman believes it’s conditional on her sleeping with him.
As 58, but the man has already given the money to the AMF because he predicted that the woman would sleep with him if he told her that he’d already donated the money to AMF but only because he’d predicted that she’d sleep with him.
Sorry, the numbers seem to have vanished! The first one was supposed to be 58, and then the ones after that sequentially numbered.
59 I expected this post to include new and interesting points about ambiguous rape cases, but it didn’t, which I was able to conclude only after reading it. Have I been raped?
59b same as 59, this time I’ve been masturbating while reading. Sexual dimension and all.
So, most of these don’t include enough information to be judged by my definitions, which are:
1) Someone has been raped if they believe they have been raped. This does not necessarily imply culpability on the part of their rapist, but does mean they should be accorded respect for their feelings and e.g. they should not told that they have not been raped, they should be allowed reasonable precautions to keep them away from their rapist, etc, however blameless the other party turns out to be.
2) Someone is morally culpable for rape if they noticed a failure of freely given consent (including coercive factors) at any point and proceeded anyway – or they were capable of noticing so but were in some way deliberately oblivious. (This means in the case where a condition was set and they failed to obey it, they are culpable if they intended to abrogate the condition at the time, but their culpability is reduced – possibly to zero – if they ended up abrogating the condition for some reason unknown to them at the time, the mitigation depending on how good that reason was.)
It’s possible to take an action which has a risk of being rape, and that you know has a risk of being rape, without necessarily being A Bad Person – if the risk is small enough and the upsides are good enough (e.g. having sex with a disabled partner who can no longer definitely indicate consent or non-consent, but who in your judgement desperately wants intimacy). But if it turns out to be rape, it’s your fault and you are a rapist.
3) Someone should be legally culpable for rape if the reasonable person would have noticed a failure of freely given consent, and there are no specific factors beyond their control that rendered it much more difficult / impossible for the actual person to have noticed, and the potential victim believes they have been raped.
This will lead to some very difficult cases which will be judged either way through subtle nuances when the subject is not capable of expressing to the court whether they believe they’ve been raped or not, whether by incapacity or being reasonably believed to be under coercion (including e.g. by their own distress at the subject being brought up).
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A fourteen-year old girl wakes up with her brother’s 21-year old friend having a hand between her legs. She is paralysed by shame and fear and only cries almost silently while he proceeds to penetrate her. Meanwhile, a blogger thinks up 57 really clever rape scenarios that could, like, totally stump a first-year law student and may even have the potential to make her appear almost, but not quite, entirely not as smart as Scott Alexander.
Question: When a penis enters a vagina, the vagina expands. The resulting crevice is filled by the penis. The space-time coordinates occupied by a penis seem to be part of a penis-person’s personal space, more so than any other person. Does it not logically follow that the pen is mightier, and rape is an illusion?
Follow up: Am I smart?
You might like this video by Jed Rubenfeld, who observes some of the same tensions you’ve adumbrated here.