Rape and Consent

by Luke Muehlhauser on October 7, 2010 in Ethics,Guest Post

The ethical theory I currently defend is desirism. But I mostly write about moraltheory, so I rarely discuss the implications of desirism for everyday moral questions about global warming, free speech, politics, and so on. Today’s guest post applies desirism to one such everyday moral question. It is written by desirism’s first defender, Alonzo Fyfe of Atheist Ethicist. (Keep in mind that questions of applied ethics are complicated and I do not necessarily agree with Fyfe’s moral calculations.)

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After writing my last posting on murder I thought I would write this one on rape. However, it turns out that the issue of rape is actually a specific application of the more general issue of consent. So, I am going to write about consent instead.

Before I do that, however, I want to make one point of contrast between rape and murder. In my last posting, I said that the challenge to prove that murder is wrong is a nonsense question. Murder by definition is wrongful killing, and wrongful killing is wrong by definition.

So, typically, when I am discussing morality and I wish to demonstrate an argument for the wrongness of something, I choose to write about rape instead of murder. Rape is not wrong by definition. It is, however, wrong. And its wrongness hinges on the moral concept of “consent”.

I have a great many reasons to act so as to surround myself with people who are averse to engaging in certain types of activities without my consent. And they have reason to want me to be averse to performing certain activities without their consent.

The value of consent rests with the fact that the most knowledgable and least corruptible source of information on what will fulfill the desires of a given individual is, in most cases, that individual herself. She has a lifetime of experience in discovering what she desires and in discovering the most efficient means for realizing those ends.

She is also the least corruptable agent when it comes to selecting the option that best fulfills the agent’s desires. She is not going to sacrifice the fulfillment of her own desires for some other end. In fact, she cannot.

If Jeb, for example, were put in change of determining which states fulfill Nellie’s desires, Jeb would first have to do a great deal of research to determine what it is that Nellie desires. In doing so, he is not only going to be the victim of insufficient information, he is prone to such errors as self-deception and confirmation bias that will encourage him to draw the conclusions he wants to believe, as opposed to conclusions that the evidence supports.

Even if Jeb accurately knows Nellie’s desires, these beliefs will not necessarily motivate Jeb to act in ways that support the fulfillment of Nellie’s desires. Jeb will have his own desires and will act so as to fulfill the most and strongest of those desires, given his beliefs. He will act so as to fulfill Nellie’s desires only insofar as his desires are in harmony with Nellie’s desires.

The doctrine of consent gives Nellie the authority to determine whether or not realizing a particular state stands in the appropriate relationship to her desires. When Jeb is of one opinion as to whether a state will fulfill the most and strongest of Nellie’s desires, and Nellie is of a different opinion, we assert that Nellie’s opinions are likely to be more accurate than Jeb’s, so Nellie gets to determine whether such a state is to be realized.

However, we know that there are whole groups of people for which this is not the case. One such group is children. Children do not have the experience or even the ability to recognize how particular states stand in relation to their desires. They can fairly reliably judge the immediate fulfillment of certain desires, but are often unreliable predictors of the effect on the fulfillment of desires in the future.

In some cases, we need to give decision-making capability to somebody else who (1) is more knowledgeable on what states of affairs will fulfill the present and future desires of the child, and (2) is motivated to realize states of affairs that will fulfill the present and future desires of the child.

In the case of children, we assign this duty to parents or, where parents are unable or unwilling to perform those duties, to some other guardian charged with making decisions for the child.

This practices does not get rid of the problems inherent in making decisions for others. Parents and guardians will still act so as to fulfill the most and strongest of their own desires, given their beliefs. The hope is that the desires of the parent or guardian are desires that tend to fulfill the present and future desires of the child.

There is also reason for concern that the desires of the parent or guardian are desires that cause the child to acquire virtues and avoid vices – not only for the future sake of the child and future adult, but for the sake of those with whom the child and future adult will interact.

Biologists tell us that nature has given parents specifically and adults generally altruistic desires with respect to children and child-like entities.

However, our moral duties with respect to child-care are not to be found in these innate biological dispositions. Our moral duties are to be found in the fact that the these altruistic desires that nature has gave us are obviously not strong enough or common enough. There are many and strong reasons to promote much stronger interests in the welfare of children than arise naturally. So, we people generally have reason to use social forces to augment these natural tendencies.

So, whereas adults are given authority to give or withhold consent in the name of a child, social forces are still brought into play to make sure that adults who make decisions for a child have desires that are in harmony with the present and future desires of the child. Desires that are not in harmony with the present and future interests of the child are desires that people generally have many and strong reasons to condemn.

This, then, is how the concept of ‘consent’ plays out in desirist terms. It involves appealing to the most knowledgable and least corruptible agent in determining whether a state fulfills the present and future desires of that agent. In the case of adults, this is the person himself. In the case of children, it is an adult whose desires are most in harmony with the present and future desires of the child.

- Alonzo Fyfe

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{ 19 comments… read them below or add one }

Brian_G October 7, 2010 at 4:33 am

Consent tells us something about what’s wrong with rape, but it seems insufficient. Wet willies are also preformed without consent.

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Reginald Selkirk October 7, 2010 at 6:35 am
Charles October 7, 2010 at 8:03 am

The value of consent rests with the fact that the most knowledgable and least corruptible source of information on what will fulfill the desires of a given individual is, in most cases, that individual herself. She has a lifetime of experience in discovering what she desires and in discovering the most efficient means for realizing those ends.

I’m not all that convinced this is true.

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Steven October 7, 2010 at 8:28 am

The more I read about desirism, the more I realize that it is much like my own view of morality (although it wasn’t specifically founded upon “desires” but an individual’s “wants”. It seems like a minute difference, but I think my version is much more unsophisticated).

And Brian_G, I suspect that the reason that a Wet Willie will be looked down upon as an unpleasant action whereas rape is seen as morally wrong lies upon the fact that the consequences of rape are so severe, that it will severely affect the victim’s desires, whereas a Wet Willie will just be a moment of unpleasantness with no serious repercussions to the victim’s desires or any long-term damage.

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lukeprog October 7, 2010 at 8:29 am

Charles,

Even though it contains the qualifier “in most cases”? What is it, do you think, that makes you suspicious?

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Brian_G October 7, 2010 at 9:16 am

Steven,

I think we both agree that consent is insufficient to describe what’s wrong with rape. It must be consent + something. Consent + the severity of the consequences does seem to help. The more severe the consequences of an action the more consent is required. That seems at least plausible. However, there are a couple of cases that give me pause. The first is pre-arranged marriages. This would seems to have very significant consequences for the people involved, but it’s not morally atrocious the way rape is. The second is that if a rapist wears a condom to reduce the risk of unwanted consequences, it doesn’t seem to make him a better person.
These two cases can perhaps can be explained. In the first, perhaps a person must at least implicitly consent to having her marriage arranged. It seems that it would be wrong to force a marriage against someone’s wishes, even if the practice is socially acceptable. The second case might be explained by the fact that disease and pregnancy are not the primary consequences that we’re concerned about. Perhaps, the primary consequences are more of an emotional nature.

Thoughts?

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Cyril October 7, 2010 at 10:06 am

Brian_G: “I think we both agree that consent is insufficient to describe what’s wrong with rape. It must be consent + something.”

I would think that this would be true by definition. Because if the victim doesn’t consent to having sex, then there needs to be a “something” to force them into it.

The picture above is obviously of a victim of sexual assault, which uses the threat (and application) of violence in order to enforce the unwanted sex on its victim. In this case, the “something else” would be violence, which thwarts the victim’s desires both directly and indirectly.

This is as opposed to, say, some kinds of date rape, which rely on drugging someone rather than beating them. Still non-conensual and still immoral, but (maybe?) not as desire-thwarting.

So yeah. If you limit your diagnosis to just the non-consensuality of the intercourse, then you’re right. But that has to be done in order to talk about rape as a category instead of about specific forms of rape.

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Charles October 7, 2010 at 10:11 am

Luke,

I guess I just don’t think its true that “in most cases” people are “most knowledgeable” about what will fulfill their desires. How else do you explain the 50 million people who voted for Bush?

However, I’m willing to grant that it’s very probably true for rape.

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Charles October 7, 2010 at 10:12 am

And if you do believe it, you should probably be libertarian.

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Zeb October 7, 2010 at 11:37 am

If lack of consent is what makes rape wrong, why doesn’t lack of consent make killing wrong?

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Kaelik October 7, 2010 at 12:25 pm

I’m still waiting to hear anything like a desirist response to hypocrisy.

If I want to rape people, and do not want to be raped because I care about my own consent, and don’t care about other people’s consent, what possible reason should I subject my desires to the same standards as those I enact on others?

What reason would I do anything besides combine deception and hypocrisy in all my moral dealings to do what I want. Whether it be murder, theft, rape, wet willies, or forcing people to marry?

@Brian_G, under desirism forced marriages are as bad or worse than rape. Just because you don’t intuitively feel they are doesn’t really mean they aren’t.

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woodchuck64 October 7, 2010 at 1:19 pm

Kaelik

If I want to rape people, and do not want to be raped because I care about my own consent, and don’t care about other people’s consent, what possible reason should I subject my desires to the same standards as those I enact on others?

If we were in a desirist-driven society and your desires are malleable, I would remind you that your life will likely be miserable if you pursue that course of action, and I would be telling the truth. You could try to beat the odds, but I think it’s self-evident that society is already pretty good at sniffing out cheaters, and under desirism it would likely become even more adept (by strengthening the focus of social attention on desires rather than actions).

under desirism forced marriages are as bad or worse than rape

The OP says that a person is the best practical authority for his/her desires. It does not say that ignoring that person’s consent always thwarts the same number of desires. Rape tends to thwart more desires than forced marriage (more physical violence, more shame and permanent physical and emotional injury, for example), so it’s worse. Of course many forced marriages involve physical and emotional abuse as well, but it seems uncontroversial that rape, on the whole, comes out ahead in desire thwarting.

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Jeff H October 7, 2010 at 4:54 pm

I’ve been told numerous times by Luke that desirism does not involve hypotheticals, i.e. that the whole theory can be based entirely on things that actually exist.

But now Alonzo is talking about future desires and future adults, and it seems to be a bit bizarre. Now we have to account for the desires of people who don’t even exist yet? We have to account for the desires of the adults our children will become? If that’s the case, then suddenly we have a whole multitude of hypothetical saints and serial killers for which we have to assess their desires. This seems to be impossible in principle.

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Kaelik October 7, 2010 at 5:22 pm

If we were in a desirist-driven society and your desires are malleable, I would remind you that your life will likely be miserable if you pursue that course of action,

How exactly? You lie to people that you don’t enjoy rape, so no one ever engages in persistent attempts to shape your desires, and then you kidnap people, rape them, murder them, and get away with it.

You could try to beat the odds, but I think it’s self-evident that society is already pretty good at sniffing out cheaters, and under desirism it would likely become even more adept (by strengthening the focus of social attention on desires rather than actions).

You think it’s self evident that society is good at catching cheaters because you are stupid. Society is notoriously bad at catching cheaters.

Most rapists get off scott free. Most rapes are unreported. Of reported rapes, few ever see a conviction.

Society sucks at catching cheaters. It is terrible, it gets by because it already shapes most peoples desires away from doing things like rape/murder/theft, not because it’s good at catching them.

And there is no reason to think desirism would be any better at catching cheaters, because it doesn’t matter if people lie about their desires.

Nothing about this results in people with psychopathic desires ever doing anything else besides being Dexter, minus the whole killing only bad people part plus rape.

but it seems uncontroversial that rape, on the whole, comes out ahead in desire thwarting

Only because you are being an idiot, and substituting your own feelings for reality.

Force Marriages result in more physical and emotional abuse, over a longer time period, with no hope of escape, as well as losing any hope of financial independence, and oh yeah, still getting raped.

Anyone who thinks rape is worse that forced marriages is using some standard other than desire thwarting, like for example “I don’t personally get as upset thinking about it.”

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Brian_G October 7, 2010 at 8:26 pm

Kaelik,

I think you may be right about a marriage that is truly forced. I suspect though, in cultures where pre-arranged marriages are the norm, people probably do want to have their marriages arranged, because otherwise they would be unlikely to get married. However, if a person didn’t want to marry and was forced against his / her will, that would still be wrong. I’m not sure if it’s as morally wrong as rape. Suppose a girl was forced to marry against her will, but after she was married she freely consented to every sexual act with her spouse. If we assume that force marriage implies forced sex, then it would seem that forced marriage would be worse then rape.
These are hypotheticals, because under my understanding of marriage, it cannot be forced any more then someone can force you to make a promise. You can be forced to say the words “I promise” but you didn’t really make a promise you just said the words.

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Kaelik October 7, 2010 at 9:00 pm

Brian, no one cares whether you mean the promise or not if you are still forced to live with someone, have sex with someone, legally grant that person a series of rights towards you and maintain financial control over you, and have you legally required to need their permission to leave the house.

So what, you didn’t mean the promise, the government still grants a series of legal rights to someone you don’t want to have them, and puts that person in a position to easily control your life, and get away with all sorts of actions that non married people cannot get away with because of a presumption of consent in marriage?

I don’t care if the promise is real, I care about the effects of a false promise being forced on someone.

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Steven October 8, 2010 at 8:07 am

Brian_G:

Forgive my late post, but I did not have time to answer yesterday.

Those would be my exact thought processes if I had to discuss the morality of either the condom wearing rapist or the pre-arranged rapist, but here’s what bothers me. Why must we insist that the condom wearing rapist has to be as bad as the regular rapist, or that pre-arranged marriages aren’t as morally atrocious as rape? It seems as if we’re using desirism to get a preconceived system of morals, and argue against it if it doesn’t meet our standards. This is something that has always bothered me about morality; it seems we are more focused on finding a way of wording our beliefs rather than finding something about morality itself; I can’t fathom how we would verify whether our own assessment of rape and pre-arranged marriages is the result of touching upon morality, or just us making desirism meet our preconceived view. Perhaps my objection is silly given all the work that has been done in morality, and if so, please pardon my ignorance.

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woodchuck64 October 8, 2010 at 12:55 pm

Kaelik,

The context of your thought experiment is a someone within desiristic-society who desires to rape and who is aware of what desirism teaches. (If the rapist is not in a desiristic-society, the thought experiment make less sense since desirism is supposed to most effective in social conditioning of desires, not in personal morality.)

I’m assuming that the primary ways a desiristic society weakens a desire to rape is by first recognizing and correcting the origin of pathological behavior as much as possible: disturbed, violent, and abusive childhoods, for example. Psychological and sociological treatment might be effective there. Techniques that enhance empathy would be used. And warning of the consequences should be effective, too.

You think it’s self evident that society is good at catching cheaters because you are stupid. Society is notoriously bad at catching cheaters.

In 2009, 88,332 rapes were reported, and 12,617 arrests were made (http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2009). That’s about a 1/7 chance of getting caught which I think is a pretty good rough number for the rapist who is not a friend or family member (those of the latter category are more likely to be under-reported for obvious reasons, but being raped by a stranger seems much more likely to be reported to me). A 1/7 chance of being caught seems like a reasonable strong deterrent, even more so given the dire consequences of being convicted and serving jail-time.

Force Marriages result in more physical and emotional abuse, over a longer time period, with no hope of escape, as well as losing any hope of financial independence, and oh yeah, still getting raped.

Anyone who thinks rape is worse that forced marriages is using some standard other than desire thwarting, like for example “I don’t personally get as upset thinking about it.”

I’m certainly prepared to change my mind given the evidence. However, there are obviously a significant number of forced marriages that have no, or very little, physical and emotional abuse, while every rape involves physical and emotional abuse, so I’m still inclined to think rape is worse.

Note that I’m not calling you an idiot for your failure to convince me otherwise. But if you feel the need to continue to call me stupid or idiot, I’ll be happy to let you have the last word.

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Alonzo Fyfe October 8, 2010 at 2:16 pm

BrianG

Consent tells us something about what’s wrong with rape, but it seems insufficient. Wet willies are also preformed without consent.

Absolutely. Remember, the reasons that exist for inhibiting a desire is determined by the number oand strength of the desires thwarted. The harm done by rape is severe, generating many and strong reasons to condemn rape.

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