Unable to Consent
Apologies in advance for this DramaPost, but hopefully I can offer something substantial while I’m at it. Leeeeeroooooooy…
“Skepchick” Rebecca Watson has a new “I can’t believe they said that!” post up. It concerns Twitter responses to her statement that:
If you have sex w/ someone who is drunk, they are unable to consent & that is rape.
— Rebecca Watson (@rebeccawatson) December 17, 2012
My post is in three parts. The first will state my agreement with this statement (based on a charitable reading), and why it is that I agree. The second will offer a more charitable reading of the responses Watson received. The third will consider some philosophical and ethical implications of this view, and some of the questions it raises.
The Rape Predicate
Watson’s view is that if someone is drunk then they are unable to consent. This raises an important question. What level of intoxication is sufficient for ‘drunkenness’? I take it that ‘drunkenness’ must entail an inability to consent, that is to say that if someone is able to consent then they are not ‘drunk’ in the sense Watson is talking about. If we didn’t grant this then Watson’s statement would be self-contradictory, so in order to read her charitably then we must take this to be what she means by ‘drunk’.
The important part of Watson’s statement is what I will call the ‘rape predicate’; that at least one person is unable to consent to sex. If rape is sexual activity without consent, then it follows that sexual activity between two people where at least one person is unable to consent is an act of rape. After all, if one is unable to consent then it isn’t possible that they could have consented! So Watson’s statement (given the charitable interpretation above) seems to follow logically from the definition of rape.
So we now have an argument for Watson’s view, and one that I think is sound. Remember that this blog promotes an open and civil discussion, so feel free to disagree with me and say why.
Rapists on Twitter?
Now for the drama. Watson was asked questions on Twitter about her opinion, all of which I think are based on a less charitable reading than mine. They all seem to take ‘drunk’ to mean ‘has some level of alcohol intoxication’. That is an easy enough misunderstanding – I often say I’m feeling ‘drunk’ when I have had a couple of pints and feel slightly ‘off’. I am still fully able to consent. It is very wrong, in my opinion to imply that they are ‘sad to hear they might be rapists’, as the post’s title implies, when it is far more likely that they have interpreted the word ‘drunk’ such that it doesn’t entail the all-important rape predicate.
As far as blocking all the people who replied to her goes, I would advise Watson that if she doesn’t like having her opinions questioned and doesn’t want to clarify her statements then (please excuse the ad hominem) she should argue her case a little better and make her meaning clearer. I’d also like to point out a more ethical way of using private Facebook posts for illustrative purposes. A couple of the tweets quoted by Watson are ridiculous, and therefore they are unworthy of being quoted or discussed here.
Talking about rape is a very dangerous activity, and by doing so one runs the risk of having their words taken out of context or their meaning twisted. Why someone would want to do this is beyond me; rape is a very serious crime and warrants a full and frank discussion. It is immoral to use such a serious subject to try to ‘score points’ against those you don’t like.
I have agreed with Watson that sex with someone who is drunk and unable to consent counts as rape. I do think that this gives rise to legitimate philosophical questions. For instance, let’s assume that one person is unable to consent as a result of drinking too much. Now assume that the other person is in the same state. It seems to me that given that both people are unable to consent, sex between them is impossible. After all, who would be the First Mover, unless they operate as mere automata? However if somehow sex does take place, would this not imply that at least one of them is able to consent, and, ex hypothesi both people are able to consent? On either of these possibilities, the question quoted by Watson “What if you are also drunk? Did they rape you as well?” could be answered ‘no’, since it is necessarily false that if sex took place then both people were unable to consent.
Jeremy Stangroom asks an interesting question in the Huffington Post Blog: Is it wrong to have sex with someone who unable to consent if they have previously stated that in the situation that they are too intoxicated to consent, they give their consent? Stangroom’s answer illuminates one of the issues raised by Watson’s statement:
Aeneas has what might be called an epistemic problem. He doesn’t know Dido well enough to be able to make a confident judgement about whether or not her intoxicated consent reflects her established interests, desires and beliefs. So a cautionary principle should hold sway. If you can’t be sure that you won’t merely be taking advantage of a person in a vulnerable moment if you have sex with them, then you shouldn’t have sex with them.
While the granting of consent might be seen as an illocutionary act (and therefore it might seem that there is nothing to worry about), there are still the other considerations that Stangroom notes, which does give cause for concern. In Watson’s case, the ‘epistemic problem’ is a little more cut and dry, as there is no such illocutionary act. If we aren’t sure that someone is able to consent given how much they’ve consumed then I think we should err on the side of caution. The undesirable outcome is so much worse than the desirable outcome is good.
Comment policy: I mentioned before that this is a touchy subject, so please stick to the issues and keep it civil!