When someone argues in defence of x, at least in the realm of ethics, he usually means x is morally defensible, by which he need not be urging us to do x, but rather and only that it would be morally permissible if we did. The obvious example is abortion. But what could it possibly mean to defend rape?

A Sherman tank is a kind of tank. But not every adjective leaves the noun it modifies ontologically intact. Fool’s gold is not a kind of gold. It’s not gold at all. Neither – or so some would argue – is a trans woman a kind of woman. So my warm-up question here is whether statutory rape is a kind of rape. I want to argue that it’s not. It’s of a different ontological kind. 

The essence of rape is vaginal penetration against the expressed and understood will of the victim. Once we start weakening that definition the word starts to lose the function we need it to play in our sexual lives. For example, that she didn’t say yes would describe nine tenths of perfectly normal and acceptable sexual encounters. 

That she said no is a necessary condition of it being rape, but not a sufficient one. Rape is a criminal offence, not a strict liability one. So that he didn’t understand the no would fail to meet the mens rea requirement. We could, I suppose – and in fact we do – insert the Man on the Clapham Omnibus Test. But that test is notoriously discriminatory to certain recent immigrants, or just people from communities at some cultural distance from Clapham. 

Some people think it’s sufficient that the consent condition is unmet. But if that were the case there’d be no need for the prefix ‘statutory’. It’s called statutory because we want to criminalise it notwithstanding it was consensual. We circumvent this embarrassment by the legal fiction of supposing that consent is that of which, not unlike the unconscious, the underage participant is incapable. But this turns consent into a non-concept. What we really mean by his not having her consent is that he doesn’t have the consent of her handlers. We don’t consent to her having sex with him. What we call ‘the age of consent’ is really just the age at which she no longer needs our consent. 

Am I suggesting that that age should be lowered, or done away with altogether? The question is above my pay grade. I’m suggesting something far more radical. I’m suggesting that, in the domain in question, it’s the concept of consent that’s to be done away with altogether.

Not unlike “Is the foetus a person or isn’t it?”, consent is the wrong concept. Do we worry about consent when we vaccinate our children? Do we go ahead only after having concocted that she would consent if she understood what the vaccination is for? Do we bother to imagine that she’ll consent retroactively? No. We do it, if we do, because we judge it in the child’s best interests.

Is it always in the interests of a twelve-year-old, with or without her ‘consent’, to have sex? Of course not. Is it ever in the interest of a twelve-year-old, with or without her consent, to have sex? Of course it is. Just as it’s sometimes in the interest of a thirty-year-old, with or without her consent, to have sex. Are there circumstances, rare though they may be, under which it’s in the interest of a thirty-year-old to have sex against her will? If you think not, you lack a philosopher’s imagination. 

Well, in for a penny, in for a pound. Are there circumstances, rare though they may not be, under which the interests of a second or third party trumps her interest in not having sex. Again, if you think not, you lack a philosopher’s imagination.

It follows, then, that rape is only contingently wrong. Worse yet, that there are circumstances under which it’s morally permissible. And worst of all, that there are circumstances under which it’s morally mandatory. 

If you’ve followed my argument, you might be tempted to reply that under these (albeit bizarre philosopher’s) circumstances – namely those under which rape would be mandatory or even just permissible – they would be outside of what John Rawls calls “the circumstances of justice”, and therefore, as Hobbes put it, “the notions of right and wrong, justice and injustice, have there no place.” I’d be content with that reply. But I’m not sure many women’s rights advocates would.

Categories: Social and Political Philosophy

Tags: age of consent, consent, statutory rape