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Consent by the dashboard light.

July 22, 2010, 6:48 am

I had the same reaction that many did to the report of the Israeli rape-by-deception case, which is that even if the guy lied, he’s not guilty of rape.  Over at feministphilosophers, there has been some pushback on that, and I’ll formulate the pushback argument like this.  As enlightened folk, we believe that lack of consent characterizes rape.   Consent is a notorious pain in the patootie (forgive the technical term), because someone can fail to consent even when appearances suggest that they didn’t object.   A 12-year-old is too young to consent; someone who fails to resist out of fear of physical harm hasn’t consented; someone who is incapacitated by a date-rape drug hasn’t consented.

Another way that apparent consent can be invalid is if the person has been deceived.  If a prankster serves you a delicious brownie telling you that it’s made of chocolate, and neglects to tell you about the secret ingredient, it’s fair to say that you didn’t consent to getting high.

In this case, the woman argues that she was deceived, and if she was, her consent would be meaningless.  Lack of consent means rape.

So, I’m still not convinced.  I think that the difference lies in whether we read the deception as warranting the assertion, “Yes, I consented, but I wouldn’t have if I’d known the truth” or “No, I really didn’t consent, because I was deceived in such a way that I couldn’t consent.”   I think that there are two categories, and that this case falls in the former category, and that to hold that this is an instance of rape, it has to be in the latter category.

My resistance is largely because describing her as giving consent only because she was deceived about his personal qualities pre-supposes that sex as fundamentally transactional.  The woman exchanges sex as payment for the man’s good qualities, and if he’s lying about his good qualities, then he’s, um, overcharging and she, er, deserves a refund.  (This is going nowhere good.)

The consent there is the consent typical of something like a contract.  That is not an unprecedented way of understanding sex, even in this day and age (save it for marriage! no one wants a cookie with a bite taken out!), but it strikes me that to endorse this idea of rape-by-deception one also has to endorse the concept of sex as a transaction, rather than something that two people might choose to do for fun.

Otherwise, she’s just freely consented to have sex with someone she met at a club who (may have) turned out to be a liar.    This wouldn’t preclude being attracted to someone for having certain qualities, or being rightfully angry if it turned out they misrepresented themselves, but I don’t think you can get to retroactively invalidating consent without building in more assumptions about sex.

That’s a first pass, at least.

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