Caroline J. Simon, Ph.D.

Caroline J. Simon Ph.D.

Bringing Sex Into Focus

Rape Redefined for the 21st Century

Justice Department catches up with the complexities of rape.

Posted Jan 07, 2012

Rape is wrong.  Uncontroversial.  But what is rape?  The U.S. Department of Justice has finally made a giant step toward catching up with the 21st century complexities of this issue.

Scales of justice

Photo by Eric the Fish

As an ethicist, I hope that this legal move will renew widespread public discussion of the important moral issues surrounding sexual consent. Make sure that there is consent is a vital rule. Easily said, but not simple to do. Especially after a casual sexual encounter, someone might say, "What do you mean you didn't want to have sex? Why'd you invite me up to your room then?" If one person but not the other assumes that not saying "no" is the same thing as consenting to an escalated level of sexual intimacy, harmful misunderstanding--even rape--can be a consequence. (See Don't Be Seduced and One Seducer's Awakening.)

Consent is an act rather than a state of mind.  If consent is an act, it needs to be given; it should not simply be assumed in the absence of any sign to the contrary. Lack of a "No" is not equivalent to a "Yes." This means that it is a mistake to infer consent to sexual activities from the absence of an explicit "No."

As most state laws, and now the federal government, acknowledge, consent is also complicated by such factors as age-differences and the murky role of alcohol and drugs in sexual encounters. Mere verbal agreement is not valid consent. A child cannot validly consent to sex. Fraud and coercion are other conditions that invalidate consent. So does intoxication.

Ogden Nash became well known in the twentieth century for writing catchy and humorous short poems. Nash said, "Candy is dandy, but liquor is quicker." Nash's poem makes the cynical point that wooing a woman by sending her small presents like candy might eventually lead to sexual intimacy, but if you want to speed things along, get her drunk.

Before the term "date-rape" was invented, this poem counted as funny.