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Consider rape

February 15, 2016

Consider rape.

What is rape?  Is it sex?  Obviously not, since sex can take place without becoming rape.  Is it a particular kind of sex?  It must be, since it is somehow distinguishable from ordinary sex.  In what way does it differ?  Is it intercourse?  Sodomy?  Group sex?  Does it require a state of intoxication?  Again, sex can take place in all these variations and situations without being termed rape, which brings us no farther than the original question.  In what way, then, must rape occur so as to differ in essence from ordinary sexual activity?  It must take place against the will of one of the participants.  That is the defining line.

With regard to the process of decision-making in sexual affairs, a person is usually referred to as giving or withholding consent.  Consent is a specific example of an exercise of will; that is, an exercise of one of the defining attributes of humanity.  The frequency with which the term is used obscures its connection with, but does not separate it from, its larger context.  Likewise, the absence of consent is as much an act of will as consent, as it involves a deliberate decision by the person involved.  This makes it possible to define rape as not merely the absence of consent, but as the deliberate imposition of the will of one individual upon another individual.

Redefining rape in this way makes it possible to apply the term to a number of other apparently unrelated actions to which the new definition applies at least as well as it does to involuntary sex.  The most widespread and striking of these actions is imprisonment.  Imprisonment and rape are identical in principle.  A man is not kept in confinement with his consent – the number of prisoners who have consented to their detention is a very small one – but by force and by the imposition of the will of others upon him.  The combined wills of the police, the hired guards, the district attorney, the judiciary, and the community override his own.  And that is an act of rape.  (Note that this is a personal interaction; the state is not a human being and thus cannot have a will of its own or become a rapist.)  Moreover, it is an ongoing act of rape.  A single forced sexual encounter is of brief duration compared with a form of rape that may continue, with constant reminders, until the victim’s death.  Whether or not the victim committed a crime that, in the eyes of his rapists, “deserved” punishment does not affect the nature of their own treatment of him.  He might be a rapist himself; that does not bar him from becoming, in his turn, the victim of rape.

Since the latter half of the twentieth century, social justice activists have campaigned passionately for the abolition of what they call “cruel and unusual punishment”.  Capital punishment is the foremost target of their pleas for legal reform, followed by torture, extorted confessions, unfair sentencing and disproportional sentencing, prison conditions, for-profit prisons, and so on.  But their demands are not logically consistent.  If these activists were asked if they considered rape to be cruel and unusual, and meriting punishment, they would almost certainly reply that it was.  If they were asked if rape should be used as a means of punishing convicted criminals, they would protest the suggestion in anger.  But if they were asked if imprisonment should be abolished altogether, the vast majority would say no.  They would point out the inability of society to punish and deter anti-social actions in any other way.  In doing so, they would give their practical consent to the use of cruel and unusual punishment even as they protested its existence, being unwilling to discern that such punishment is, by its nature, cruel and unusual.  Theirs is a very subtle form of hypocrisy.

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