I interviewed Fiona Woollard – a professor in Philosophy at Southampton – to discuss approaches to consent and rape, based on her work on sexuality and sexual conduct.
Let’s take a case from my own work: a woman has a fantasy for professional footballers. Without you knowing this, you lie about being a footballer and she sleeps with you for this reason alone. Without this, she would not have slept with you. Is her consent not proper here?
Yes, there are worries that she did not really consent. Deception undermines consent. Also: why would someone lie about being a footballer in this situation unless it was because they thought it would improve their chances of having sex, which does seem to show a lack of proper concern for consent. But I suppose we could fudge the details so that he could not have reasonably known his actions were undermining consent. The question of what you ‘reasonably ought to have known matters’ – it is not just what you actually believe. We ought to know that – sadly – a large number of prostitutes are trafficked. So someone who has sex with a prostitute who has been forced into prostitution can’t get away with just assuming there is consent. They have a duty to properly investigate. Anyway if (and this is a big if) we can come up with a case where the person who told the footballer lie really couldn’t have reasonably been expected to know the lie undermined consent, we might not think that they have done anything wrong. But we can still say something bad has happened to the victim: they have still had a sexual encounter they didn’t fully consent to.
This seems to raise a broader question. Does the intention to rape need to be present in rape?
No, you don’t need an intention to rape in order to count as having raped someone. To avoid being blameworthy, you need at least a reasonable belief that they have consented, not simply to lack a reasonable belief that they haven’t consented. In cases where women “freeze” during sex, men have a responsibility to check the woman is happy to continue as this behaviour ought to stop you reasonably thinking they are consenting. Part of this is about good sexual conduct: showing care towards your partner and a respectful awareness of their consent. It can also be about the language we use. Saying “you want this, don’t you?” is not equal to saying “do you want to continue?” in a way that makes it clear that there will be no repercussions for saying no. In cases where people may be fearful of saying no (i.e. if they’ve gone back home with you and don’t know how you will react to rejection), this could make all the difference.
What about cases where men (or women) do everything they reasonably ought to do, but the partner convincingly pretends to consent because of this fear of the possible response?
We can say something about this: we ought to ensure our sexual partners feel comfortable and able to honestly express themselves. This is in the interest of men too. Most men would be horrified if they learnt, after sex, that a partner only went through with intercourse because they were scared. But even in rare cases where someone has done everything they can to check and their partner still felt they had to fake consent, we can recognise that something very bad has happened to that partner. She (or he) has had sex which she didn’t fully consent to. We can recognise this even if we don’t think he did anything blameworthy.
This seems to link to another question: is there something here about how explicit consent ought to be? Can we have implicit consent, or even absent consent?
Absent consent (the lack of no consent indicating consent) cannot be right. It undermines self-ownership as it puts the onus on the possible victim to refuse sexual activity: we essentially need a reason to refuse sex. This should never be the status quo. I think the difference between explicit and implicit consent matters less than everyone having a genuine opportunity to say whether they want to continue. You can have ‘explicit consent’ even though someone doesn’t really want to have sex because they are too scared to say no. You can know that someone has consented, even if they haven’t done so explicitly. But if we are going for implicit consent, we need to very careful about what counts as implicitly consenting. I don’t think merely going back to someone’s room gives implicit consent.
Growing numbers of commentators are now talking about ‘male rape’. Should we recognise this?
On the one hand, for equality, yes. But it may cause problems defining rape. The traditional view is that rape consists in penetration: this bodily violation is assigned specific importance. And the law does recognise that men can be raped through anal penetration. But we might want to recognise another type of male rape, where a women has ‘standard’ intercourse with a man against his will, nothing goes inside his body: rather it’s a form of envelopment (something goes around his body). Is this less of an insult on one’s sexuality autonomy? We need equality and to register the trauma men can experience. But it might be hard to defend a hard line which includes penetration and ‘standard’ heterosexual intercourse, but leaves out other forms of sexual contact. It’s harder than we think.
What is the role of academics in raising awareness about sexual consent?
Philosophers, especially, should be involved because we spot inconsistencies and incoherence. But we need greater interaction with psychologists, sociologists, lawyers and other disciplines working on these issues. Specifically, we need to talk to those making the policies on sex education to think about how messages of consent are presented. Of course, the difficulty when it comes to talking about consent in university-level courses, like my philosophy of sex module, is that we can’t tell people what to think. We can only present them with the arguments, and let them decide.