The dictionary at dictionary.com defines consent as “permission, approval, or agreement; compliance; acquiescence”, “agreement in sentiment, opinion, a course of action, etc.”, and “accord; concord; harmony”. What the dictionary fails to state is the definition of consent as it relates to law, particularly laws regarding rape.
Rape itself is defined by the same website as “unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with or without force, by a sex organ, other body part, or foreign object, without the consent of the victim.” However, if you consider how the law defines rape, it sheds a very different light; in fact, until recently, rape could only be a man against a woman, and the woman could not be the man’s wife. Certain factors also contributed to whether or not an offense was considered rape; as the Free Dictionary states, “women who were raped were expected to have physically resisted to the utmost of their powers or their assailant would not be convicted of rape.” In the modern era, society uses the more inclusive definition stated at the beginning of this paragraph. Even the up-to-date definition does not explicitly cover everything, though. Because consent has the ability to vary from court-to-court, so does the definition of rape.
Not only do societal views define rape, those same views formulate the laws that define rape. In approximately 1780 B.C., people believed that only virgins could be raped; this was reflected in their laws, which stated that rape of a virgin was property damage against her father. For most of history, it was also agreed that only women could be raped. Men were only recently included in the definition of rape. In 1290, the definition of rape changed; without a woman’s consent, she could not get pregnant. Basically, if you get pregnant from rape, it was never rape to begin with. The definition was altered again in the 1300s. The intensity of the punishment was affected by how promiscuous the woman was; a virgin was more legitimate in her charge of rape than a whore was. At the end of the 1300s, the definition of rape changed yet again. Virgins were no more credible than other women, and girls younger than 12 could not consent. In 1670, it was concluded that a man can legally rape his wife, because the marriage contract forfeited his wife’s right to consent. Sir Matthew Hale, an English judge and lawyer at the time, stated, “[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” Furthermore, race was a deciding factor; black women could not be raped, or at least if they were, the law did not care. It was decided in 1814 that rape could be determined by pregnancy; if a woman was raped, she could not become pregnant. Samuel Farr, an English physician at the time, decided that a woman could not become pregnant without an orgasm, and rape could not occur if there was an orgasm. In his Elements of Medical Jurisprudence, he says, “For without an excitation of lust, or the enjoyment of pleasure in the venereal act, no conception can probably take place. So that if an absolute rape were to be perpetrated, it is not likely she would become pregnant.” In the 19th century, it was agreed that if the woman did not actively resist her rapist, she was not raped. Throughout time and across different places, the definition of rape changes. Although the modern definition of rape is much more inclusive than, for example, the definition from 1780 B.C., it is likely that the definition will change yet again in the future.
If consent is an “agreement in sentiment”, then what exactly constitutes this “agreement”? That question can be extremely difficult to answer; it is the reason why many feel they have been wrongly convicted, as well as why many victims feel that they have not received adequate justice. The problem is that consent is not always explicitly voiced. For example, it is likely that not everyone outright asks their person of interest, “do you want to have sex?”, but rather goes through the motions, seeking nonverbal cues to express their intentions. Nonverbal cues are vague and easy to misinterpret, however. Discomfort may look like consent to a less socially observant person. The unobservant person can now be charged with rape simply because he could not pick up on the subtle nonverbal cues of his partner. At the same time, his partner could have believed that her discomfort was clear and obvious and did not need to be stated aloud.
Even when consent is clearly stated, it may not be consensual to the victim. The victim may feel as though the consent was forced from her and therefore not true consent. In this instance, a man may feel that he is justified in continuing with a sexual act, when in reality, his partner does not consent to it. Therefore, it can be concluded that consent can never actually be given.
Every sexual act is rape. A person could clearly and explicitly tell her partner “yes”, but if for even a moment she doubts her feelings or feels any amount of discomfort, the consent is void and she could consider the situation to be rape. No one is capable of stating “yes” in every single moment of a sexual act. The second a man’s partner stops saying “yes” to take a breath of air, his partner has relinquished her consent. And a sexual act without consent is rape. It is especially true that every sexual act is rape because the modern definition includes people of all races and all genders. In the past, it could be argued that almost nothing was rape. Unless you were white and a virgin, you could not be raped in the 1780s B.C. Slowly, more people were included into the definition of rape, until it included the wide range of cases it now encompasses.
Eichelberger, E. (2017, June 25). Men Defining Rape: A History. Retrieved February 14, 2018, from https://www.motherjones.com/politics/2012/08/men-defining-rape-history/
Consent. (n.d.). Retrieved February 14, 2018, from http://www.dictionary.com/browse/consent
Rape. (n.d.). Retrieved February 14, 2018, from http://www.dictionary.com/browse/rape?s=t
Rape. (n.d.). Retrieved February 14, 2018, from http://criminal.findlaw.com/criminal-charges/rape.html
Rape. (n.d.). Retrieved February 14, 2018, from https://legal-dictionary.thefreedictionary.com/rape
2 thoughts on “Definition Argument-Dohertyk9”
DK, this is very thorough, but in its completeness, it contains material that distracts from your primary objective, to define rape on the basis of consent. Your halfway division of your material into categories such as “the dictionary definition,” the “legal definition,” the “failure of the definition of rape to also define consent,” the “changing legal interpretation of property,” even “the evolving personhood of slaves,” all have a place in a generalized survey of “How the definition of rape has changed,” but your argument should strive for something narrower, more particular.
—Whose consent was never questioned? The slave’s? The wife’s? The whore’s?
—What was considered consent? Failure to gouge out the rapist’s eyes? Marrying someone? Having had a single sex partner? Having had multiple sexual partners? Getting pregnant?
You circle around these shifting definitions without clearly identifying, while circling, whether you’re noting shifts in our attitude about virginity, about promiscuity, about marriage, about rape, or about consent. You circle back to some of them too, instead of covering them before moving on.
Following the history, you make your own claims quite categorically but still ambiguously. Every sex act is rape because it requires continuous consent, which cannot be granted. I think. You might mean even more rigorously that legal sex requires the continuous and unambiguous expression of consent. But humans are incapable of continuous consent, you seem to say. Or maybe you mean no partner can be assured of continuous consent and cannot legally proceed without it.
Are men raped too? Every time? By their female partners who likewise must obtain the consent they cannot be assured of? Your explanation seems to address just man-on-woman sex, disregarding the equivalent requirement of woman-on-man sex. Nobody’s continuous consent can be presumed, right? Surely men have been coerced by women into sex they didn’t want as you define it.
During my lifetime the attitudes have changed dramatically. The “pregnancy cannot occur without orgasm” argument is not a familiar one, but the argument that “even if she started out resisting, if at any time during the sex act her body responds with pleasure, she was not raped” lasted well past the middle of the 20th century.
This is a good start, DK9. Organization will help. Clearer statements of your own claims are needed. A narrowing of your focus to the consent aspects of the changing definition of rape will be very helpful.
I thrive on the interaction, DK.
If you respond, I’ll quickly learn that you value feedback.
That’s very true, I think my argument was too vague and generalized when I was writing this. I attempted to prove the definition as a whole rather than specifically focus on consent and how it relates to my topic. I’ll make sure to narrow it further in the future. Thanks again for the feedback!