Unjust Sex and the Opposite of Rape (1)

William Hogarth, Before

“The Opposite of Rape” is the title of an article by the legal philosopher John Gardner. It was published in late 2017 in the Oxford Journal of Legal Studies. In the article, Gardner tries to delineate the differences between good sex and rape. Doing so, he argues, helps to identify certain blindspots in contemporary debates about sexual ethics, particularly debates about importance of consent. For some reason, several people have asked me for my thoughts on this article. I’m not quite sure why. The subtext of each of these requests, at least as I read it, has been that there is something unusual or improper about Gardner’s analysis — that his discussion of ‘the opposite’ of rape is unwelcome. Initially, I thought nothing of this, and I put the article at the end of my already extensive reading list. But then the requests kept coming so I figured I better read the thing.

Now that I have done so, I’m not quite sure what the fuss was about. Obviously, many philosophical discussions of rape and sexual assault are fraught with risk. If you take a overly analytical perspective on the different ethical grades of sexual activity (good/bad/indifferent/permissible/forbidden), you risk sounding detached and unsympathetic to the plight of victims of sexual assault. If you use an inapt or awkward analogy, the risk escalates. Gardner might be guilty of some of these things. But, overall, I find his argument relatively unobjectionable. Indeed, if I had any complaint, it would be that it is not particularly original. What Gardner says about the distinction between ‘rape’ and ‘good’ sex, and about the dangers of focusing too much on consent in discussions of both, has been said already. What he adds is a particular conceptual framework for thinking about the distinction (viz. that ‘good sex’ is ‘teamwork’), which has one potentially controversial implication that he tries to avoid.

Over the next two posts, I want to justify my take on Gardner’s article. I do so by initially comparing it to another article — ‘Unjust Sex vs Rape’ by Ann Cahill — which I think advances a very similar thesis. This comparison should help to confirm my suspicion that Gardner’s argument is not hugely original. I will then consider the one potentially disturbing implication of Gardner’s argument and assess the extent to which he avoids it.


1. Sex in the Gray Area
”All sex is rape.” You have probably come across this quote. It is often attributed to the radical feminist Catharine MacKinnon, and it is usually held up as a reductio of the radicalist school of thought. Surely not all sex can be rape? The quote is, however, of dubious provenance. MacKinnon herself has denied ever saying it, and I have never seen a direct quote from her work confirming that she did. Nevertheless, there are aspects of her theory of sexuality that might be taken to endorse it, or something pretty close. It would take a long time to explain MacKinnon’s theory in full, but the gist of it is that women’s sexuality is shaped by patriarchal social structures. From an early age, women learn and internalise a certain understanding of their own sexuality and men learn and internalise a complementary understanding. Specifically, they learn that:

Women’s sexuality is, socially, a thing to be stolen, sold, bought, bartered, or exchanged by others. But women never own or possess it, and men never treat it, in law or in life, with the solicitude with which they treat property. To be property would be an improvement. 

(MacKinnon 1989, 172 - taken from Cahill 2016, 749)

In other words, women adopt a passive mode of sexuality and men an aggressive mode. Sex is something that men take from women; and it is something that is defined solely by reference to male desires and needs. While this doesn’t quite mean that all sex under conditions of patriarchy is equivalent to rape, it does mean that all sex under conditions of patriarchy should be treated with suspicion. Because women are indoctrinated by patriarchal norms, their own expressions of consent to sex are not necessarily dispositive. This puts MacKinnon in something of a bind as it seems like no heterosexual sex could be morally legitimate from the perspective of her critique. As Cahill puts it:

Although MacKinnon has vociferously denied that her theory of sexual violence entails the claim that all heterosexual sex under patriarchal conditions is rape, one cannot find in her work a detailed, compelling articulation of how any given heterosexual interaction could sufficiently escape the pernicious effects of patriarchal structures. 

(Cahill 2016, 749)

Cahill, and others, try to escape from this bind. Unlike MacKinnon, they think that there are circumstances in which sex can escape from the pernicious effects of patriarchy; but like MacKinnon, they think that some heterosexual sex, even if freely and affirmatively consented to by women, is normatively suspicious. As a result, they call for a more nuanced understanding of the spectrum of possible forms of heterosexual sex. At one of the spectrum lies rape and sexual assault — both of which are undoubtedly impermissible and rightly criminalised. At the other end lies ‘good’ sex — which is undoubtedly permissible and probably good. In between, there is a gray area where sex can be indifferent/‘meh’ or, if not quite as bad as rape and sexual assault, not good either. Cahill calls this latter type of gray area sex ’unjust sex’. It’s bad, but not as bad as rape and probably not worthy of criminalisation either (though, to be clear, in the article under discussion Cahill doesn’t discuss criminalisation and I am not sure what her opinion on it is).

What are the distinctive features of unjust sex? The feminist scholar Nicola Gavey interviewed women about the phenomenon in her 2005 book Just Sex?. In these interviews, the women all felt that they had not been raped, but they had had sex under conditions in which they felt unable to express their true desires not to have sex. As Gavey put it, each of these women ‘found herself going along with sex that was neither desired nor enjoyed because she did not feel it was her right to stop it or because she did not know how to refuse’ (2005, 136 - sourced from Cahill 2016, 748). Cahill argues that in cases of unjust sex women typically go along with having sex because it helped to ease tension that might otherwise arise between themselves and their partners, and/or because it was the quickest way to achieve their own desires, such as the desire to sleep.

These descriptions give us a general sense of what unjust sex involves. The question now is whether anything more can be said. Is there a philosophically richer analysis of unjust sex that explains why it is bad and why it is different from rape and sexual assault? Cahill has tried to answer that question in her work.


2. What makes sex unjust?
Rape* and unjust sex have some obvious similarities. They both lie on the negative end of sexual spectrum: they are, in other words, both ‘bad’ forms of sex. What justifies this joint designation? It cannot be the lack of consent. Although the absence of consent is usually taken to be hallmark of rape; it is not the hallmark of unjust sex. Cahill and Gavey are adamant about that. In cases of unjust sex, women do signal consent to sexual activity and, what’s more, take themselves to have signalled consent to sex. This is important because it suggests that consent — whatever its merits as a moral concept — does not automatically render sex morally commendable. This is something that Gardner is also keen to emphasise, as we shall see when we discuss his work.

So if it’s not the lack of consent that justifies the joint designation what does? The answer, according to Cahill, is the disregard for female sexual desire. In both rape and unjust sex, female sexual desire is weightless/powerless: its presence, or more importantly, its absence, makes no difference to whether the sexual interaction occurs or not. Rape adds to this a total disregard for female sexual agency.* In rape, the sexual interaction occurs against the will of the woman, not just against her desire. She experiences the total dismantling or disenabling of her sexual agency.

Unjust sex is different. In cases of unjust sex, female sexual agency is not dismantled. Indeed, one of the distinctive features of all the cases discussed by Gavey is that the women were usually explicitly or implicitly required to express their agency by signalling consent. The men with whom they had sex sought some input from them. Nevertheless, their agency was highly restricted. Cahill uses a nice metaphor to explain what happens. She suggests that in cases of unjust sex female sexual agency is ‘hijacked’. The men (or, more broadly, the patriarchal structures within which the sexual interaction takes place) hijack the woman’s agency and look for it to be expressed in a particular way: to accredit the sex and, if necessary, use this against the woman at a later point. Cahill puts it like this:

…the woman’s agency can be deployed only to facilitate the specific sexual interaction whose content (that is, the particular acts that will make up the interaction) is predetermined and remains largely unmarked by the specific quality of the woman’s sexual subjectivity. Her sexual agency is employed in a weak way, as a mere accreditation of the sexual interaction that is being offered to her. 

(Cahill 2016, 755)

How does this hijacking take place? What happens is that it is clear to the woman in the situation that there is only one valid way in which to express her agency, namely: to affirm the proposed sexual interaction. If she refuses or suggests an alternative, her response will be questioned and challenged, and she will be perceived as being difficult or obtuse. At this point actual coercion may be used to force her into the sexual activity, moving us from unjust sex to rape. This hijacking has an insidious effect on female sexual agency. Because there is no obvious dismantling or overpowering agency — as there is in cases of rape — female sexual agency does appear to make a causal difference to the sexual activity. But the difference it makes is minimal and so it’s true limitations are hidden.


3. Conclusions and Implications
That brings us to the end of part one. I have gone through Cahill analysis of unjust sex in some detail both because I think it is interesting and because it points in a very similar direction to Gardner’s analysis in ‘The Opposite of Rape’. I’ll explain why in part two, but to set up that discussion let me mention two important propositions that I think it is possible to draw out of Cahill’s analysis (even if she does not explicitly endorse them herself):

Proposition 1: There is more to ‘bad’ (i.e. morally unwelcome) forms of sex than rape and sexual assault; or, to put it a different way, the mere presence of sexual consent is not enough to make a sexual interaction morally commendable.

Proposition 2: Because of this, an excessive focus on consent in discussions of sexual ethics can be misleading, and possibly unhelpful, because it does not move the needle sufficiently toward a normative ideal of male-female sexual relations.

What I will argue in part two is that Gardner’s analysis leads him to endorse the same propositions, albeit from a different direction. Instead of starting with ‘unjust’ forms of sex he starts with ideal forms.


* Note: I’m just going to refer to ‘rape’ from here on out, rather than ‘rape and sexual assault’. This is not because I don’t appreciate the distinction between the two things, but simply for convenience since they can be lumped together for the purposes of this discussion.

Cahill, like other feminist scholars, uses the term ‘agency’ in contradistinction to the term ‘autonomy’. This is because ‘autonomy’, to her, connotes an atomistic individual acting apart from social institutions and relations; ‘agency’ is supposed to correct for this and refers to the powers and capacities that we have as a function of our interaction with social institutions and relations. There is a rich literature on this distinction though it should be noted that modern theories of autonomy (e.g. the theory of ‘relational autonomy’) are not that different from feminist theories of agency. A classic paper on the topic is Kathryn Abrams ‘From autonomy to agency: feminist perspectives on self-direction’.

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