Although the proper definition of ‘rape’ is itself a matter of some dispute, rape is generally understood to involve sexual penetration of a person by force and/or without that person's consent. Rape is committed overwhelmingly by men and boys, usually against women and girls, and sometimes against other men and boys. (For the most part, this entry will assume male perpetrators and female victims.)
2.1 Consent
Both social and legal understandings of rape are typically based at least partly on the notion of consent. (Many laws also include a force requirement, about which more below.) To consent to something is to reverse a prima facie supposition about what may and may not be done. In most contexts, there is a standing presumption that one does not have access to and may not make use of another's body, property, personal information, or other elements of his or her personal domain. This presumption is reversed, however, when (and for as long as) the other consents to such access. Consent thus alters the structure of rights and obligations between two or more parties.
Assuming for the moment that, in sexual encounters, rape exists where consent is lacking, the question then becomes what counts as consent. Women's sexual consent has in many instances been understood quite expansively, as simply the absence of refusal or resistance; feminists have criticized this approach on the grounds that, among its other untoward implications, it regards even unconscious women as consenting (MacKinnon 1989b, 340; Archard 1998, 85). Furthermore, it has too often been assumed that a woman's appearance, attire, status, location, prior sexual history, or relationship to the man in question either function as stand-ins for consent (that is, as “asking for it”) or render her consent irrelevant or unnecessary. A vital task on the feminist agenda has been to challenge and discredit such ideas—to deny that what a woman wears, where she goes and with whom, or what sexual choices she has made in the past have any relevance to whether she should be seen as having consented to sex on a particular occasion.
Consent in general may be understood as either attitudinal or performative (Kazan 1998). Attitudinal accounts see consent as a mental state of affirmation or willingness, while performative accounts see it as a certain kind of action or utterance (for instance, saying “yes” or nodding). Because the kinds of behaviors mentioned above (such as wearing revealing clothes, going somewhere alone with a man, or engaging in heavy petting) have often been claimed by perpetrators to constitute evidence that a woman was in a mental state of willingness to have intercourse, feminists have often rejected attitudinal accounts in favor of performative ones; with a performative account, in contrast, a defendant can be challenged to articulate exactly what the woman said or did that constituted her consent to intercourse. An added advantage of a performative account is that it suggests that sexual consent is not a woman's implied default state, but rather must be actively and affirmatively granted. Again, this is in contrast to traditional patriarchal views, which often assumed that unless a woman physically resisted—again, even “to the utmost”—a man's attempt to have intercourse, she was consenting (or at least he was justified in proceeding on that assumption).
One limitation of a purely performative account of consent is that it does not take into account the context in which the relevant behavior or utterance occurs. For instance, if a woman says “yes” or even feigns sexual enthusiasm in order to keep a knife-wielding attacker from becoming angry and hurting or killing her, it would be absurd to regard her behavior or utterance as consent (or at least as meaningful consent). The question is what other contextual constraints and pressures may also undermine the validity of a woman's (apparent) consent. To put the point another way, having granted that “no” always means no, we must recognize that, in some cases, “yes” also means no. There are many kinds of explicit and implicit threats that render a woman's consent to sex less than meaningful: the man may threaten to sue for custody of their children, to derail her green card application, to evict her, or simply to sulk and make her life miserable for days should she refuse to have sex. Which (if any) such nonviolent coercive pressures should be regarded as rape, either morally or legally, is a matter of some controversy (Schulhofer 1998; Burgess-Jackson 1996, 91-106).
The question is especially important from a feminist point of view, since it is to be expected that in a patriarchal society men frequently hold positions of social, legal, and/or institutional power over women and are thus positioned to withhold important benefits from women who refuse them sexual access, in addition to threatening harms and penalties. Viewing at least certain kinds of nonviolent coercive pressures as incompatible with meaningful consent may yield the conclusion that some quid pro quo sexual harassment is also rape (Falk 1998). Furthermore, some radical feminists' description of prostitution as “commercial sexual violence” (Jeffreys 1997) reflects an expansive understanding of the economic and other coercive pressures that often compel women's consent to sexual acts in prostitution (even where physical violence does not play a role).
