I pointed out earlier that consent to sexual activity with a partner can never be perfect. That is a good reason to abandon the separate criminal offence of rape, which in effect prohibits non-consensual sex. Other criminal offences – assault, threat, abduction – are sufficient.
Where force and coercion are absent, is consent required anyway? That issue is relevant in ‘date rape’ cases and rape within a relationship, where sexual activity is not in dispute, but consent is.
Take a case where a man has sexual intercourse with a woman he has just met. The woman goes to the man’s house, and they have sex. Both are adults. The man does not threaten, coerce, or assault the women in any way. Both partners are healthy, neither fears infection, there is no risk of pregnancy, nor does the woman fear pregnancy. The man does not ask the woman for consent. The woman indicates neither consent nor non-consent: she simply has sex with the man. Nevertheless, she would have preferred not to have had sex.
So why did she not just leave? In real life, there are many explanations: peer pressure, the expectation of some advantage or benefit, insecurity, lack of self-confidence, inexperience, feeling overwhelmed, and not least, alcohol-impaired judgment.
Many people will think that in such circumstances, the woman has been harmed. The general insistence on consent to sex seems to be grounded in the idea that sex is harmful. Certainly, the feminist position is that there can be no sex between a man and a woman, without full and perfect consent by the woman. Many feminists do explicitly claim that women are harmed by sex, especially penetrative sex. There are real and well-established risks: pregnancy, medical complications in childbirth, and sexual diseases.
But what if those risks are absent or controlled? Mainstream (second-wave) feminism would still see sex as harmful, because it reduces the woman to an inferior status, and can only occur under conditions of oppression and hatred. It is not necessary to go into the details of feminist theory here, but there is an implicit assumption that in a state of full freedom (including freedom from any biological need to reproduce), women would not have sex with men.
That is no foundation for sexual morality, since it is an unfalsifiable hypothesis. It would be easy to derive a prohibition of sex from some kind of Rawlsian ‘original position’ where the participants neither need nor want sex. Those participants would not however be a good approximation of human beings. You could just as easily derive a prohibition of any other activity, by assuming that those in a Rawlsian original position neither need nor want it.
But if we abandon both of these feminist positions, what reason is there to insist on consent to sex? An analogy with medical treatment might clarify the issues. We let the dentist drill holes in our teeth even though it hurts, and we let surgeons cut our body open. We do that in the expectation of better health, or at least avoiding worse health. We don’t allow random people in the street to drill holes in our teeth. If we meet someone in a club, we don’t go to their place to have them remove our vital organs. The law prohibits assault, and often specifically criminalises unauthorised medical treatment. However, in this case the harm is clear and indisputable. That is not the case with sex. If it always hurt, if it always did permanent damage to our body, then few adults would ever consent to it.
It is not possible to simply classify male-female sex as an inherent harm, because so many people like sex. Consent standards, comparable to those for medical treatment, are therefore not justifiable.
It seems to come down to this: if sex is inherently harmful, then so no-one should ever do it. If however, sex is not harmful, then there is no general requirement to consent. (That does not exclude specific prohibitions, for instance on having sex in the street, or on sex for persons under a certain age).
If the law abandoned the general consent requirement, then non-coercive non-consensual sex would be legal. What would that look like in practice? In the example already given, if the woman went to the police, they would ask: “Did he hit you? Did he threaten you? Did he prevent you leaving?” If the man had exercised no force, nor violence, nor threat, nor coercion, nor abused any authority, then he could not be prosecuted, even though the woman did not want to have sex.
It would be possible to modify that principle to allow for explicit verbal refusal of sex, but that has little relevance in practice. A man who has sex with a woman in the face of explicit refusal, probably used some form of coercion anyway. And if there was absolutely no coercion, and the women was determined not to have sex, then she would leave anyway.
Legalisation of non-coercive non-consensual sex would cover the many cases, where consent is ambiguous or half-hearted – where the woman is not really happy about having sex, but decides not to act on that preference. For feminists, of course, such cases are rape, plain and simple. However, there is no obligation on the state to adopt feminist principles. There are also other options available, which in practice come down to some form of segregation. A woman who lives in a women-only apartment block, travels by women’s taxis, and uses women-only schools, facilities and businesses, can effectively avoid contact with men, and therefore sex with men. When the state facilitates such segregation, it has already made sufficient concession to feminist political demands, concerning consent to sex.