Date Rape and Consent by Mark Cowling

Author:Mark Cowling [Cowling, Mark]
Language: eng
Format: epub
Tags: Social Science, Sociology, General
ISBN: 9781859725092
Google: ToyADwAAQBAJ
Barnesnoble:
Goodreads: 1338793
Publisher: Routledge
Published: 1998-01-01T00:00:00+00:00

4 Date rape and the concept of consent

In Chapter 2 I accepted the central feature of English law on rape, namely that rape is having sex without consent. In the exploration of the literature on date rape in Chapter 3, consent was frequently one of the important issues. If consent is drawn more narrowly, for example, so that ‘the utmost resistance’ is required (as in some of the older American state legislation) then most of the examples of date rape in Chapter 3 are defined out of existence. Conversely, if various acts such as digital penetration are assimilated to rape, and an expansive view is taken about alcohol so that sex with an inebriated woman is viewed as rape, then the scope of rape becomes much wider. Another important problem is the communication of consent or non-consent. If it is assumed that women consent to sex by, say, going voluntarily to a man’s apartment as part of a date then we have a very different view of rape from one which says that any sex to which there has not been explicit verbal consent is rape. Further, there is the problem of the background situation. Consent induced by threats of violence is plainly not consent in the normal sense. Most people would regard consent induced by a threat not to smile for the next twenty minutes as genuine consent. Where between these two do the boundaries lie?

In this chapter I shall start by enquiring whether there is a general concept of consent which can be applied to sexual consen. I shall look particularly at the issue of consent in politics and medicine. I shall argue that the analysis of consent proposed in the political literature by Flathman offers a good framework for making sense of consent and follow him in looking at: i) knowledge of what is consented to; ii) intending to consent; iii.) communicating one’s consent; iv.) against a background of free choice. The third point is quite lengthy, as it leads on to an analysis of the view in some feminist writing and in the Antioch College student code that sexual consent must be explicit for it to be genuine. Discussion of the fourth issue, free choice, involves looking at the range of sanctions which might be used to induce someone to have sex and seeing if a boundary can be set between rape and non-rape. The general theme which will emerge is that the boundaries between rape and non-rape are very murky. This has an obvious bearing on the debates and statistical uncertainties which were examined in Chapter 3.

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