Scott Allen Anderson, Conceptualizing Rape as Coerced Sex
, Univ. of British Colombia (2015), available at SSRN
Scott Anderson’s article Conceptualizing Rape as Coerced Sex, in my view, is the best philosophical or legal piece on the subject of rape that has appeared in many years. Its basic insight is powerful, and persuasively argued. Rape, Anderson argues, should be understood neither as “forced nonconsensual sex,” as it is traditionally defined, nor as non-consensual sex, as most reformers today typically urge, but rather as coerced sex. Coercion, in turn, is “best understood as a use of asymmetric power that one sort of agent may hold over another sort based in the former’s ability to inhibit broadly the ability of the latter to act, by means such as killing, injuring, disabling, imprisoning, or drugging…. [thereby placing the former] in a position to threaten another with such harms or constraints in order to induce compliance with demands he might make.” So understood, rape is the criminal act of “either creating or taking advantage of pre-existing differentials in the ability and willingness to use force or violence,” toward the end of obtaining sexual gratification from the victim. The power differentials that render the pressure “coercive” are quintessentially created through direct force, violence, or threats of violence, but might also include taking physical advantage of another who is mentally or physically incapacitated because of intoxicants or cognitive or mental impairment. Most important, though, the power differentials at the core of the “coerciveness” that renders sex rape might be facilitated not by direct threats, but by drawing upon “the link between the threatener and others of a similar kind who have used similar powers in the past.” When sex is “coerced” in any of these ways, such that the victim is not able to “usefully or reasonably ignore, deflect, evade, or work-around the enforcement of the threat,” then the sex that results should be understood as rape.
Note that on Anderson’s account the victim’s consent or non-consent is not part of the definition of the crime (although it may enter as a defense). Rather, the definition focuses squarely on the assailant’s acts and mental states, rather than those of the victim: did the assailant create or take advantage of pre-existing differentials in the ability and willingness to use force or violence” to obtain sex. Nor does it require direct force: rather, the “differentials” in power that facilitate the rape may pre-exist the act itself, and may be as much a function of the similarity between the agent and others similarly situated, as anything the agent himself does in the particular encounter. This coercion-based account, Scott argues, would avoid both the under-inclusiveness of definitions of rape that center on force, and the possible over-inclusiveness of definitions of rape that center on consent. More significantly, it would better capture both what is distinctively harmful about rape, why rape is overwhelmingly (but not universally and certainly not by definition) a crime committed by men upon women, and why rape is a constitutive aspect of gender subordination to women’s detriment. Continue reading "On Rape, Coercion and Consent"