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Sep 24 2013

Is Attacking Rape Apologetics Rape Apologetics?

It’s strange to see even atheists convert hyperbole into fact in the span of just hours or days. That’s supposed to be what religious people do. When I wrote an article attacking rape apologetics in the discussion of the allegations against Michael Shermer, I was accused of engaging in rape apologetics (examples cataloged here, here, here, and here). But only by making false claims about what I wrote in my article.

This has started now to become lore. In comments on Stephanie Zvan’s recent article on the BlockBot I was weirdly even accused of “victim blaming” in an article against victim blaming that actually defends victims from being unfairly blamed (lest this not be believed, I will document the actual contents of my article below), and a scenario I explicitly described as reprehensible and as victimization and worthy of condemnation, one commenter said I described as “kinda cool” and “what a rapist would like to believe,” which is the exact opposite of the actual facts in the case, yet this version of events is then endorsed by another commenter. Meanwhile, in comments on the same article described as “what a rapist would like to believe,” I had to debate actual rape apologists (or at least folks who didn’t know that’s what they were doing). Which in context is surreal.

It’s unclear how the myth arose that something I condemned I called “kinda cool.” And perhaps the lore varies from person to person. But throughout, from what I’ve read, I have found there are some failures of fact and reasoning to address.

1. On When It’s Morally Murder Even When It’s Not Legally Murder

The first is the relation between law and legal principles, and morality and moral principles. I’ve written elsewhere on what the difference is (Sense and Goodness without God, Part V vs. Part VII). Law is not the codification of morality. But law should accord with morality (in that an ideal law, towards which all legal systems should strive, should not permit, facilitate, or promote injustice in the pursuit of its otherwise valid goals). And often it does not. In my article I discussed some examples of this in relation to rape.

Some people mistook that as saying we can ignore what the law says, even ignore fundamental principles of justice on which all just laws are based, when deciding how to reason morally. We cannot. The law represents thousands of years of accumulated real world experience in reasoning about many of the same issues moral reasoning must contend with, and as such any sound moral philosophy will have much in common with legal philosophy. The fact that they do not always do so does not change the fact that they often nevertheless do.

To ignore legal philosophy when discussing moral philosophy is like talking about how to make a sturdy building without paying attention to anything written on architecture. Surely I should not have to argue that some of the fundamental principles of justice in Western law are simply fundamental principles of justice.

2. On the Conditions That Must Be Met to Have Committed a Specific Crime

One of those fundamental principles of justice is that to hold someone accountable for a crime, two conditions must be met: mens rea (an “ill will” or “bad intention,” voiced in trials as “knowledge and intent”) and actus reus (a “bad act”). There are exceptions, called “statutory” laws (or “strict liability” laws). Although one might raise a debate over whether such laws should exist, I won’t query that here, since I didn’t write anything about statutory rape. All other crimes (like rape, every bit as much as murder, theft, or anything else) must meet both conditions. Otherwise a crime has not occurred.

That you feel it should be otherwise does not change the fact of it. And the fact of it does not constitute criminal apologetics. That our legal system requires both mens rea and actus reus in order to call someone a murderer does not mean our legal system is a system of “murder apologetics.” Nor is anyone who argues that this legal requirement is sound and just a “murder apologist.” And if I say it is unfair to call someone a murderer because they never actually killed anyone, only injured them, and that therefore they should be condemned for what they actually did instead (which is still awful), that does not make me a “murder apologist.”

3. No Actus Reus, No Crime (Whether We Like It or Not)

Surely it is a most fundamental principle of justice that you have to actually have done x to be guilty of x. In law, this is the principle of actus reus (the bad act).

If you merely might have done x or don’t know if you’ve done x, that is not the same thing as doing x. If you shoot a machinegun into a residence, you might have committed murder. It can even be said that you don’t know if you committed murder, or even showed no concern for whether you had. But it’s still not murder (if no one was killed). You actually have to commit murder to be guilty of murder. And yet such an act is still undeniably bad. That shooting a machinegun into a residence is not murder in no way means it isn’t still reprehensible and condemnable. We just call the bad thing it is something other than murder. And saying so is not “murder apologetics.”

It should be obvious that moral judgment should always be governed by the same reasoning. We should never morally condemn someone for something they never actually did. Even when we are condemning them of doing something bad–we should not condemn them for what they didn’t actually do, but only for what they actually did.

This is relevant to what is claimed about my article. Rape occurs under a number of possible conditions, one of which is coercion by threat (direct or implied). I even mentioned that fact in my article (emphasis now added):

As Ryan puts it, the law doesn’t require a victim to “become so intoxicated that she is physically unable to speak or display a lack of actual consent,” but on the other hand mere intoxication “to some degree” or intoxication that “reduce[s a woman’s] sexual inhibitions” is not sufficient to make a sexual encounter rape (some other condition would be required, such as she resisted, verbally and/or physically, and the man continued; or she was threatened; etc.).

I mentioned this again in comments:

Keeping quiet out of fear, BTW, would be a different scenario. If you felt threatened, you don’t even have to be inebriated for it to be rape even under the law (even in New Jersey).

So when it is claimed I denied this, there can be no doubt that that claim is false.

In the article itself, I described a scenario (Scenario B) from the POV of the victim (not the perpetrator), in which I left no reference to the victim feeling threatened, but to the contrary, the text explicitly describes the opposite: enthusiastic participation and excitement is the only reason given for acquiescing. There is therefore no implied threat condition in the scenario I described. If we wanted to describe a third scenario, let’s call it Scenario C, in which the woman acquiesced only (or even partly) because she felt threatened, then we’d be talking about a scenario I did not discuss.

Some of those who accuse me of rape apologetics mistakenly confuse Scenario B, which is the only scenario I said was not rape (because no threat exists in it, and it corresponds to universal legal principles of consent, as quoted from actual legal literature), with this imagined Scenario C, which I said nothing about. Yet in comments I explicitly said what I here call Scenario C would be rape (as quoted above). So anyone who thinks my Scenario B had any connection with a state of implied threat is simply not reading the article I wrote. They are criticizing some imaginary article in their head, one that I didn’t write.

This is ironic because this illustrates the actual principle I opened with here: I am being accused of doing something that in fact I did not do (even apart from interpretation: that is, just the mere fact of calling Scenario C “not” rape is something I did not do). Similarly, if we reimagine Scenario B from the perpetrator’s perspective, it is possible that Scenario B would then look indistinguishable to them from Scenario C, so that they would not know which Scenario they were in. I even specifically mentioned this being a problem. Regarding scenarios like B I wrote in the original article itself:

[T]his puts you in serious risk of committing rape. Or at the very least (if you are a caring sort of person), creating a situation in which it’s not even clear whether you are committing rape (a situation a caring person would find disturbing to find themselves in).

Again, people have accused me of not saying this. In fact, I did say it. So again, I did not do what I have been accused of.

But more importantly, that this is true does not make Scenario B rape. Scenario B is not Scenario C. That the perpetrator doesn’t know which Scenario he is in does not make what he is doing rape. Actus reus: you have to actually commit the crime to be guilty of it. If he was in Scenario C, then he was committing rape (there is a possible exception to that conclusion I’ll get to shortly). But in the thought experiment I actually composed he wasn’t in Scenario C. He was in Scenario B. What he thought or didn’t know is irrelevant to that fact.

Just like shooting a machinegun into a house: that’s reprehensible, because it could result in murder, but it is not itself the actual crime of murder. I similarly pointed out that the perpetrator going forward in Scenario B is likewise reprehensible. Hence I made no apology for it, but outright condemned it, in no uncertain terms. It just isn’t rape, in the same way that shooting a machinegun into a house isn’t murder. And that’s a fact not only under the law everywhere, it’s a fact in any sensible moral reasoning. You have to actually do the thing to be held accountable for it. That is why there is no rape in Scenario B.

But Scenario B is still immoral (in the same way shooting a machinegun into a house is), and that was in fact the entire point of my article: semantic debates about whether a particular act is “rape” all too easily elide the fact that what you call it doesn’t matter, as if somehow if it’s not rape then it’s okay. I was specifically attacking that very reasoning. Which is the exact opposite of rape apologetics, where we would find the argument “x is not rape [by this or that definition], therefore we shouldn’t condemn it.” I said the exact opposite: that even if x is not rape [by this or that definition], we should condemn it. Just as we would shooting a machinegun into a residence.

So there is no plausible case to be made that my article engaged in rape apologetics. Not only is the scenario I said was not rape not rape (the woman didn’t feel threatened and participated willingly and was well aware of what was happening), but I specifically said it’s not being rape in no way justified it, that in fact it was still reprehensible. Which is the exact opposite of the conclusion attempted in actual rape apologetics (as even the silly commenters I quoted above are aware, yet somehow thought I said exactly the opposite of what I actually did).

4. Mens Rea by Itself Is Not a Crime (Whether We Like It or Not)

While actus reus is thus required (there has to be an actual rape for it to be rape, and saying so is not “rape apologetics”), so is mens rea. Some of my critics tried again adding things onto the Scenario I described, as if I had included them (though I did not), such as assuming the perpetrator was acting out of malice and explicitly didn’t know they might be committing rape and didn’t care. Nowhere in my description of the Scenario is anything like that said. So this can only be imported by turning it into a Scenario I didn’t describe. Yet I can’t be accused of giving opinions on a Scenario I never even described.

But let’s invent that Scenario now, and call it Scenario D: everything identical to my Scenario B, except we add to it that the perpetrator intended to commit rape (or genuinely didn’t care if they committed rape). This is not my Scenario B. It’s Scenario D. But even Scenario D is not legally rape. Because intending to do x is not doing x. One can argue that D would be attempted rape (insofar as such a crime is on the books and includes circumstances like this–but even if not, then morally). But attempted rape is not actual rape. In Scenario D, mens rea exists, but not actus reus. Yet both are required for a crime to occur. In D, the perpetrator in the end didn’t actually have to commit rape. That they wanted to or didn’t care if it turned out that way makes no difference to the objective fact of the matter that, in the end, that isn’t the act they committed.

Analogously, if I shoot a machinegun into a house in the hopes of killing a specific person, I am certainly guilty of attempted murder. But if I don’t succeed, I’m not guilty of murder. Just of attempting it. And saying so does not make me a murder apologist. Likewise Scenario D and rape. Certainly Scenario D is even more contemptible and worthy of condemnation than Scenario B. But I didn’t discuss D in my article. So anyone who claims I voiced an opinion on it there is simply stating a plain falsehood.

5. Scienter Is Also a Fundamental Principle of Justice

There is a third concept that came up in comments on my article: the principle of scienter. It has to be reasonably possible for someone to know they are committing a crime, for a crime to be committed. That is not to say that they must know (that depends on the specific statute). Only that they could have (i.e. it has to be at least reasonably possible for them to have known).

For example, if every time I blog, a serial killer murders someone (and keeps this up, watching my blog, but never telling me what she’s doing), I cannot reasonably have known my blogging was causing her to do this, so I can’t be held accountable for it, as if I were a co-conspirator in those murders. It is not merely that I didn’t know, but that I couldn’t even reasonably be expected to know.

The principle of scienter often applies to the laws themselves. A law so vaguely worded that it is not possible for anyone who reads it to know whether they are complying with it can be struck by a court as invalid on the grounds that it lacks scienter. But it is also a legal defense. And as a broad principle of justice, it is obviously fundamental not just to all legal reasoning, but all moral reasoning as well. Hence I wrote in comments:

[I]f someone is indicating consent through active participation, and has indicated their ability to consent by coherently articulating spoken thoughts in general, you cannot be held responsible for being mistaken in that case. They have to voice/act on their revocation of consent for you to know it has been revoked. Since we are not telepathic, lack of scienter negates any crime otherwise (morally or legally).

However, that only pertains to rape (acting without consent). You can have the evident consent of someone and still be exploiting them or harming them. And thus one should be as concerned about that, too, and not just whether what you are doing is technically rape.

This is only the case, of course, in the context of Scenario B as I actually described it. One can remove alcohol from that Scenario and get the exact same conclusion: if you kiss someone and they kiss back and they escalate along with you enthusiastically, this constitutes consent. Once consent has thus been indicated, its revocation has to be indicated as well. Otherwise, there is no reasonable way the other party can know it was revoked. Lacking scienter, there cannot be a crime. They have no mens rea (the very “knowledge and intent” required for conviction). Unless, as I explicitly said in the original article, at some point in the process “she resisted, verbally and/or physically, and the man continued” (then it would become rape).

This does not hold, however, if (1) there is no initial demonstration of consent (if they resist from the start or do not actively participate at all, which we can call Scenario E, yet another scenario I never described nor said wasn’t rape) or (2) if there is an implied threat (Scenario C). But I did not talk about either in my article. I only discussed Scenario B (and Scenario A, which I demonstrated was rape, even without being Scenarios C or E). Obviously if the perpetrator never confirmed consent to begin with, by any means at all, then scienter doesn’t apply. Because then they can reasonably know consent hasn’t been or might not have been given. And then we have a rape scenario (Scenario E).

But that is not what happens in Scenario B as I explicitly described it. It is unjust to rewrite what I wrote in your head, from Scenario B to Scenario C or E, and then conclude that what I said of Scenario B I said of Scenario C or E, and then claim I said Scenarios C and E are not rape, when in fact all I said was that Scenario B was not rape.

And yet several people mistook me for saying Scenario C or E was not rape, for some reason I have yet to fathom. I never describe either Scenario in my article nor said either was not rape (for the record, again, both of them are rape). I only described Scenario B. In which there is no lack of initial consent, nor any feeling of being threatened (nor even an intent to rape). Scenario C is somewhere in between Scenarios A and B in severity. But the point of my article was to explore the furthest extremes of what might have happened, and show that even in the best possible case imaginable what Shermer did was condemnable (if he did anything comparable to Scenario B). Which is, again, the opposite of rape apologetics.

6. Feeling It Is So vs. It Actually Being So

It should not have to be said that the mere feeling that something has happened does not mean it has happened. If I feel that you have murdered someone, that does not in itself mean that you have murdered someone. And this would be an issue in jury instructions when evaluating a claim of implied threat in a rape case: it does have to be objectively reasonable for the victim to feel threatened for consent to have been negated and rape to have occurred.

I wrote about this in the context of battered spouses and the available claims they have for self defense when killing their abusive partners (see Free Will in American Law: From Accidental Thievery to Battered Woman Syndrome). As I noted there (again, citing and quoting the legal literature), a subjective standard can only, at best, lessen the offense (such as from murder to manslaughter); it does not create a valid claim of self defense. For that, an objective standard has to be met: any reasonable person would have to believe their life was in danger and the threat otherwise inescapable (Stand Your Ground laws negate the latter requirement).

But there are some subjective factors that can be included in that assessment. I wrote about published scientific and legal arguments (which in some cases have become law) that what is reasonable has to be measured from the perspective of the victim, who may be in circumstances different from what the jury has ever been in and thus will be unfamiliar with. But even then the total circumstances have to be such that any reasonable person in those same circumstances would have believed their life was in danger and the threat otherwise inescapable (without fear of harm). The same standard holds for a state of implied threat–not just in rape cases, but in all cases of coercion of whatever kind. And it should be obvious why this must be the case.

For example, if all I do is write an article about how cute kittens are, and you come to “feel” I have thereby planned to murder you unless you buy a kitten, I have not committed the crime of threatening you, and you cannot claim coercion in a court of law. Thus your subjective feelings do not make a crime. Those feelings have to be objectively defensible–by a reasonable person standard in a court of law–and surely any reasonable system of moral judgment must adopt the same principle. (That there are grey areas where the lines blur does not negate the distinction, any more than any other sorites paradox does for any other distinction, it just means we as a society need to decide in such cases which side to err on and when.)

Thus, if we drew up a Scenario C, it would be possible to construct it in such a way that it would not be rape. Although it might require something as absurd as my kitten blogging example, it’s at least possible. But otherwise, for an implied threat to exist in Scenario C in the manner required, it is not necessary that a perpetrator intend to be threatening (although that would certainly suffice); all that is required is that a reasonable person in their same circumstances could have discerned that their behavior was threatening (even if they weren’t intending it to be), since to then proceed anyway requires reckless disregard (which meets the conditions of mens rea, being a form of bad intention).

In the case of a killing, this might lower a charge from murder to manslaughter, or from a higher to a lower degree of murder, though still in any case a felony and thus definitely criminal (and, for analogous reasons, immoral). Most legal systems don’t gradate rape in that same fashion, but simply include “rape through reckless disregard” as the same as “rape through deliberate intent,” and then (at best) only treat the former as a lesser offense by awarding a reduced sentence. But again still a felony, and still reprehensible. And still rape.

But if there is no way any reasonable person could have known that what they were doing was threatening, then scienter is lacking, and they cannot be held accountable. How someone felt is not an objective fact of what’s happening outside their feelings. Those feelings have to have some objective basis. Otherwise actors cannot know they are committing a crime. And no mens rea, no crime. At the very least it has to be possible for the perpetrator to know they are causing those feelings (not that they could be, but that they are…because only if they actually are causing those feelings would we then have the requisite actus reus as well). They do not have to know they are doing that. But it does have to at least be possible for them to know. Otherwise it is impossible for them to have mens rea, and therefore impossible for them to be held accountable for what they didn’t even know they were doing and, more importantly, could not have known they were doing.

If saying this is rape apologetics, then all legal systems on earth, even California rape law, are systems of rape apologetics, and all lawyers and judges and legal theorists in the entire first world are rape apologists. Merely because they defend and employ a fundamental principle of justice.

7. That It’s Not Rape Does Not Excuse It

When it comes to Scenario B, at no point in my description did I even mention the victim deciding to stop the sex she was engaged in. She only started to dislike what was happening, and thought it might not have been good to continue or even to have started (in my fictional description I said [emphasis now added] “in the midst of it you start to feel it’s wrong” and “you’re ashamed and don’t think you would have done this if you’d been given a chance to think about it”). But the fictional woman in that scenario did not convert these thoughts into a decision. And she did not express that decision. That’s the Scenario I described. And that is the only Scenario I said was not rape. Not any imaginary other Scenarios people may have invented in their minds and conflated with my Scenario B.

In any reasonable court of law, consenting and participating and never saying stop (or physically indicating you want to stop or anything else like that) when you start thinking it’s wrong would mean you had not transferred your thoughts into an actual decision. And in that specific scenario (the one I actually described, not the imaginary ones that others falsely believed or claimed I described), there is no way someone who is having sex with you can telepathically know you’ve changed your mind–if you never in any way communicate that to them. That’s impossible. And you cannot be held accountable for failing to do the impossible–one of the most basic principles of justice.

Thus, merely thinking you want to stop, once you’ve consented and continue to participate, cannot convert what is happening into a rape, by any sound principle of justice. And saying that does not make me a rape apologist. It’s just a plain matter of sound law and justice.

But as I made very clear, neither does it convert what is happening into something that isn’t reprehensible. Just because it isn’t what is designated with a specific sound we utter (“rape”) under any reasonable legal standard, doesn’t mean it’s okay or to be made light of, or that harm wasn’t nevertheless done that could have been avoided–and avoided by its perpetrator (not the victim).

As I wrote from the start:

This is not rape. But it isn’t nice, either. If it wasn’t what you wanted, if you weren’t given a chance to think about it first, then it still wasn’t right. You were still taken advantage of. You were still abused and mistreated. And your happiness was still damaged and disregarded. … [The perpetrator] still took advantage of a woman and destroyed a human being’s happiness. Even if it wasn’t against the law. Even if it wasn’t sexually penetrating someone without their consent. Thus it’s being against the law or not is hardly the point. But it’s being rape or not is hardly the point, either.

…because it’s still wrong.

Rape apologetics is arguing that it wouldn’t be wrong, that the semantics of how even the most reasonable legal systems define rape can allow us to accept behavior that doesn’t conform to that exact definition (or worse, blame the victim for it). And that is the very thinking I explicitly denounced. It is not the thinking I endorsed. As the above paragraph makes quite clear, I condemned and vilified the (hypothetical) perpetrator for doing something awful. I said nothing whatever to blame the victim. I put all the blame on the perpetrator. And I certainly did not say what he did was “kinda cool.”

If we are going to invent facts to accuse people of things they didn’t write, and condemn fundamental principles of justice as rape apologetics, then we seriously need to check our logic. Because something has gone seriously wrong.

If you have not commented on my blog before, please note my comments policy.

129 comments

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  1. 1
    Raging Bee

    It’s unclear how the myth arose…

    Simple: it arises from the imamture mindset of a child who says whatever combination of sounds he thinks will get him attention or whatever else he wants at that moment, without even knowing or caring what (if anything) the sounds really mean, and possibly without even remembering what he said five minutes later. “I know you are but what am I?” is a subset of such lazy infantile conduct, and there’s really no point in trying to analyze or argue with it.

    1. 1.1
      Richard Carrier

      A cogent, mature analysis. I like especially how you identified false premises in my argument, quoting my actual words and providing evidence that what they stated wasn’t true. And how you then showed that the conclusions I reached from those premises don’t logically follow.

      Oh, wait. Silly me. You didn’t do any of that.

      Do you really think you are helping your case when people see a vacuous, immature comment like this, next to a carefully written and argued article filled with information and reasoning to discuss?

  2. 2
    Jason Goertzen

    I empathize with you Richard. I have had conversations like this one several times. It’s understandable–people are justifiably concerned about rape, and there’s a strong movement to root out and eradicate the culture of rape and rape apology. The same reason (moral) people will err on the side of not raping by avoiding intercourse when there’s a chance it might be rape, people will also avoid agreeing with anything they don’t understand that vaguely sounds like it might be in the neighborhood of rape apology. Which is fine. Until they proceed from that to actively CALLING it rape apology and the speaker a rape apologist, rather than doing the work to make sure they’ve fully understood it, first.

    It’s a bit like what Robert M. Price describes (possibly quoting someone else) as the Jews “building a hedge around the Torah,” and forbidding even SPEAKING the name Yahweh, just to be absolutely sure they didn’t take the name in vain: eventually this hedge takes the full emotional force of the commandment it’s there to protect.

  3. 3
    picklefactory

    And yet several people mistook me for saying Scenario C or E was not rape, for some reason I have yet to fathom.

    Folks tend to be extremely vigilant around here (FtB) when the topic is brought up at all, for reasons which must be all too apparent.

    They are criticizing some imaginary article in their head, one that I didn’t write.

    I figure this might be the case for a majority of all comments on all blogs ever. Your habit of showing up to vigorously defend yourself is the reason I bother reading the comments here. As amusing as it can be to watch someone attempt a weak argument, the attention given to one that actually engages the the points that you’ve made is also gratifying.

  4. 4
    J. Quinton

    “It’s strange to see even atheists convert hyperbole into fact in the span of just hours or days. That’s supposed to be what religious people do.”

    Probably because religion is part of the larger phenomenon of people thinking in groups. Our brains are more optimized for social activity than intellectual activity. Being an atheist doesn’t protect you from identifying (too) strongly with a group, which is where that irrational behavior comes from. I’m pretty sure everyone’s seen the study where people’s math skills are inhibited when trying to do calculations on a politically charged topic. There’s no reason that a similar thing wouldn’t happen with a highly emotional topic like rape; especially when dealing with a fully general conceptual superweapon. To quote Yudkowsky:

    Politics is an extension of war by other means. Arguments are soldiers. Once you know which side you’re on, you must support all arguments of that side, and attack all arguments that appear [m.e.] to favor the enemy side; otherwise it’s like stabbing your soldiers in the back—providing aid and comfort to the enemy. People who would be level-headed about evenhandedly weighing all sides of an issue in their professional life as scientists, can suddenly turn into slogan-chanting zombies when there’s a Blue or Green position on an issue.

    You’ve been pattern matched to a rape apologist because emotional topics that have this sort of history don’t afford the time for nuance.

  5. 5
    WithinThisMind

    The problem is that you are wrong. Having sex with someone that is not in their right mind and is thus not able to consent is rape. The absence of a no does not equal a yes.

    1. 5.1
      Richard Carrier

      You evidently didn’t read the original article. At all.

      Try reading it and responding to what it says about comments like that, before making comments like that.

    2. 5.2
      WithinThisMind

      I have read the article. I’ve also been the victim of the act. I’ve also been one to rescue several of my friends from being victims of the act.

      The difference between sex and rape is consent. If you put someone in a situation where their ability to give consent is compromised, you are committing rape. Taking advantage of someone in a state where their ability to give consent is compromised is also rape. In addition to alcohol, this includes situations like intimidation, power dynamics (prison guard and prisoner, teacher and student, etc..), and of course, alcohol and drugs, especially when the alcohol and drugs were provided by the perp for the purpose of taking advantage. Yes, even in the eyes of the law in most cases, even if the law declines to act upon it.

      The reason you are being called out here is that you are wrong.

      Having sex with someone that is not in their right mind and is thus not able to consent is rape. It is rape when they are drunk. It is rape when they are high. It is rape when they are underage. It is rape when they are mentally impaired. It is rape when they have been provided with falsified information for the purpose of obtaining a yes (aka – the old ‘I’ll wear a condom’ and then not actually put a condom on trick, ditto with the ‘I’m on birth control oops I’m really not’ trick).

      Having sex with someone incapable of saying no is also rape. It is rape when they are drunk. It is rape when they are high. It is rape when they are mentally impaired. It is rape when they do not feel they can safely say no. It is rape when they know that a no will go ignored and just want to get the act over with so they can go on with their lives. It is rape when they are consenting to one sexual act to avoid being forced into a different sexual act. It is rape whenever their ability to walk away is compromised. It is rape when any threat is attached to them saying no.

      The reason you are being called out here is that you are wrong.

      This scenario you’ve offered? It’s the one the rapist likes to use to excuse taking advantage, not the actual scenario. That’s why you are being accused. It’s the scenario the rapist uses to excuse actions with ‘well the victim really wanted it, not my problem the victim regretted it later’. It’s the MRA excuse. The actual scenario, as it actually plays out, is that the perpetrator deliberately ensured the victim’s ability to give consent was impaired, sometimes solely through alcohol but sometimes using additional means of pressure and incapacitation, then took advantage of that state with the full knowledge that if the victim was in their right mind, the answer would be no. That’s why you are being called out as wrong, and as a rape apologist.

    3. Richard Carrier

      This simply ignores everything I said in the original article. It ignores the law, the science, the legal literature, the hypothetical case I actually narrated, and my condemnation of it.

      This is simply a non-response.

      You are essentially demonstrating that I can only be called a rape apologist by ignoring every fact of what I actually said.

      And I’m fine with that. If you have to make things up about what I said, and ignore everything I really said, to get me to be a rape apologist, then I know I am not a rape apologist. As will everyone else of sense.

    4. 5.3
      WithinThisMind

      Also, playing ‘thought experiment’ with a devastating crime that affects 1 in 4 women is a really shitty thing to do, which is yet another reason you are being called out.

    5. Richard Carrier

      Except I wasn’t called out for that.

      And it isn’t a shitty thing to do.

      We have to talk about hypothetical cases and explore boundaries and definitions in order to understand what we are talking about and what we should think about it.

      Someone upthread called you out, before you even spoke: you are one of those people who just doesn’t want to talk about painful things and will condemn anyone who does, thus surrendering facts and reason to unchecked emotion when trying to approach and understand the world we live in.

      That is unwise.

      There is nothing shitty about pointing out that something is shitty. That would be a contradiction in terms. So either you didn’t read my actual article, or you are contradicting yourself in a single sentence.

    6. 5.4
      WithinThisMind

      I’m sorry that you are unwilling to address the valid problems with your stance and would simply prefer to remain in denial of their existence.

      The fact of the matter is, consent requires sound mind.

    7. Richard Carrier

      The actual fact of the matter is, consent is not negated by merely being inebriated. For the scientific and legal reasons I document (and that you continue to ignore).

      You are the one unwilling to address the valid problems with your stance and would simply prefer to remain in denial of their existence.

    8. 5.5
      Withinthismind (your logins just suck)

      What, exactly, are they ‘taking advantage’ of, if not the diminished capacity to say no due to the alcohol?

    9. Richard Carrier

      The phrase is “taking advantage of her,” her being a pronoun that represents a person, not a capacity. As I’ve remarked elsewhere already.

  6. 6
    Protagoras

    I sympathize with your frustration, but I also have a great deal of respect for at least some of your critics (as I suspect you do as well). I suspect that they reacted to a guy talking about how a woman is feeling, and found it irresistible to interpret it as the woman’s feelings according to the guy in the story. That’s not what the story is supposed to be, but this is obviously an issue on which people can be very sensitive. I wonder if it might have been better to give a dry third person narration of the relevant facts rather than trying to tell the second person story?

    1. 6.1
      Richard Carrier

      That would have been worse. The purpose of putting it in victim POV was specifically to prevent speculation about what the victim was actually thinking and feeling and deciding. Yet they did it anyway. Thus contradicting what I said. Not just adding to it.

      If I’d put it in third person, then they could have said that the description is incomplete because it doesn’t include what the victim was actually thinking and feeling and deciding, and if we included that, we might get a different conclusion (which is true: as even I acknowledged when discussing the problem from a perpetrator’s POV, where they can be in a situation where they don’t know if they are proceeding into Scenario B or [what I now call] C, which should be so disturbing to any compassionate person that they would stop and make sure which they are in first).

    2. 6.2
      Protagoras

      But a third person account can certainly describe someone’s feelings. I really do think it might have been part of the problem that a second person account sounds a bit like telling someone how they do/should feel.

    3. Richard Carrier

      But those cognitively bent on seeing things one way will assume all third person descriptions are incomplete (most people are not educated in the meaning of omniscient third person narrative, and not all third person narratives are omniscient). But it is much more disingenuous to assume so of a second person description–which is by definition omniscient as to the feelings and decisions of the narrator. Case in point…

      As to telling someone how they do or should feel, that is a weird thing to say of a hypothetical (fictional) narrative about someone who isn’t you. To the contrary, telling me what that person felt would be telling them what they do or should feel. So if that’s wrong, then it’s the people criticizing me who did that, not me. They would then be insisting her narrative of what happened was false and to be rejected and replaced with what they are sure she really should have felt or did feel, and her actual narrative report of what she felt is simply to be ignored. Again, if that’s bad, then you should be criticizing them for doing that.

  7. 7
    Erin (formerly--formally?-- known as EEB)

    Okay. I have a lot of feelings/thoughts and I’m going to try to express them, but fair warning: I have written and re-written and edited and nearly scrapped entirely this comment several times, and it’s still not as coherent as I’d like. Danger of writing about something emotionally triggering, I suppose.

    If we are going to invent facts to accuse people of things they didn’t write, and condemn fundamental principles of justice as rape apologetics, then we seriously need to check our logic.

    Because it’s not about logic.

    I read the original article, and I never would have accused you of writing rape apologetics. I thought your point was very clear. I also appreciate that you took the time to write a follow-up that even more explicitly lays out your position.

    However. The original post, especially, made me feel…uncomfortable? (I don’t think that’s exactly the right word, but I’m having trouble finding a better one.) I didn’t disagree with anything you were saying, but…I think that maybe the dispassionate, logical way it was presented kinda rubbed me the wrong way? But then, I know, for myself, when it comes to writings on rape (and child abuse, and a couple other issues) I do not respond intellectually at all; I have an immediate, sometimes very strong, emotional response. One reason why I usually close out and go away and think for a bit before responding, because the emotions can interfere with both my reading comprehension and my ability to reply.

    Plus there’s the (online) cultural context of the enormous amount of rape apologetics some of us put up with on an almost daily basis. Every. Single. Fucking. Discussion about rape includes people–usually men, usually people who have no personal experience with the subject (besides maybe being rapists themselves? I dunno)–nitpicking, invalidating our experiences, insisting such-and-such isn’t really rape, that the laws are so unfair to men, “how are we supposed to know she doesn’t want it”? etc. etc. etc. It’s emotionally exhausting, and (especially, I think, for those of us who have personal experience with rape, who have had our friends, family, police, the people who were supposed to protect and help us, say the exact same things) extremely painful. And triggering.

    (Triggering in the PTSD sense of the word, where it brings up all the same thoughts and feelings you experienced during the rape or the aftermath, like you’re right back there again, like no time has passed at all. A strange, horrible, quirk of brain chemistry, but something many of us have to learn to live with.)

    So while, no, I don’t think you engaged in rape aplogetics at all (quite the opposite), to be honest, the first post, and this follow-up, did bring up a lot of those negative emotions. I had a negative response to the article, I did feel (at first) that it was similar to so many of the “that’s not really rape” apologetic posts and comments I’ve had to deal with, and that it was…uncaring? dismissive? (trying to find the right word, again)…maybe because of the dispassionate way it was written. However, the fact that I’ve read a lot of your previous work, that I’m pretty familiar with your opinions on feminism, morality, etc., made me stop, re-read, give it a more charitable reading.

    All that to say, I can understand why some would have a negative reaction. I can understand how those feelings made it difficult to fully read and comprehend what you were trying to say, especially when it was somewhat close (in style, not content) to the many, many, many posts and comments by rape apologists. I’m not saying that it’s okay for people to accuse you of saying things you didn’t, or vilify you for saying the opposite of what you actually said. Especially with your history of support for feminist principles and victims of violence, I can see why being accused of supporting the exact opposite would grate. So please note, I’m not saying that it was justified or okay. People have a responsibility to handle how they respond, especially in areas where they know they’re vulnerable and emotionally compromised. I’m not in any way saying past trauma excuses bad behavior. I’m just saying I can understand where some people may be coming from.

    And, realistically, there’s nothing logical about it.

    Because something has gone seriously wrong.

    Oh yeah. No argument, there. Unfortunately, so much of that wrong happened to us years before you even wrote this. And it happens every day on twitter and facebook, every time people try to discuss their experiences with rape/rape culture, or try and organize to change it. That’s the difficult context your post fits into. it’s not fair…but, again, fairness (and logic) have little to do with it.

    1. 7.1
      Richard Carrier

      One reason why I usually close out and go away and think for a bit before responding, because the emotions can interfere with both my reading comprehension and my ability to reply.

      I struggle with that myself. Which is why my articles and comments tend to be well-considered, in the fashion you suggest (occasionally I skip that step and let emotion reign, but I do try to avoid that).

      And indeed, talking clinically and soberly about horrible things will be difficult to do and to read (indeed rape is not the only subject for which that’s true). But that is actually the most important reason it needs to be done. Precisely because avoiding uncomfortable conversations and analyses will leave our unchecked emotions, rather than evidence and reason, to guide us, and that can easily lead to bad decisions and false beliefs (I am not saying reason should supplant emotion, though: emotion and reason must operate together, as I explain, following known science, in Sense and Goodness without God III.10, pp. 193-208).

      But like you note, it is for this reason we should be readily forgiving if people realize their mistake. Since this can happen to any of us.

  8. 8
    Nelson Muntz

    Ha Ha

    1. 8.1
      Richard Carrier

      Normally I would delete comments void of propositional content, but I’ve had such a good record of not having to delete comments for violating my comments policy that I’ll let this one through. Even though it communicates nothing.

    2. 8.2
      Nelson Muntz

      It communicates quite a bit.

      The sense that you have been so blind to all of this, so apologetic for this, in denial about this when others told you, and how you participated in all this crapola.

      And it communicates the schadenfreude of the rest of the world seeing you go down by the bullies you created and defended.

      That you don’t see this speaks volumes. It says way more about you than your pointless 20,000 word essays do.

      It says you are a pinhead.

    3. Richard Carrier

      Um, no, it didn’t communicate any of that.

      But thanks for actually now trying to communicate something.

      Although you are still hopelessly vague as to what you are trying to communicate.

      What is the “crapola”? What was I “blind” to or am “in denial” of? Where am I being “apologetic”? What “others” are you referring to and what did they “tell me”? Who is “bullying” me? Where did I “defend” them?

      And why do you think 6,000 words are 20,000 words?

      Seems to me someone who can’t count or coherently communicate would be what you mean by a “pinhead,” but I don’t think derogatory terms for people with microcephaly are appropriate ways to deride someone–for their intelligence or their causes. Actual “pinheads” (to use your term) appear to be smarter and nicer than you.

  9. 9
    EllenBeth Wachs

    Well, Richard, you now have learned first hand what so many people have been complaining about. The commenters at this blog network are out of control and the bloggers are allowing them to do what just happened to you.

    Do you have any idea how many times I have been called a rape apologist at this point? I can’t count. It’s meaningless any longer.

    1. 9.1
      Richard Carrier

      I like how you fall right into a stock “false generalization fallacy” and generalize to all the commenters at this blog network–as if I said anything about “all” commenters, and as if the commenters here were any relevantly different from commenters anywhere (I can only suppose you don’t read comments on YouTube, or else you’d realize we have it pretty damn good here).

      This shows you are bad at logic. And bad at reasoning. And bad at facts.

      Notably, the only silly commenters I found were not even commenters on my article, but someone else’s–and the worst were not on FtB, but on someone else’s blog network altogether!

      So, nice try selling your false narrative here. But it won’t fly with me. I’m not that stupid.

      The commenters here at FtB are generally very good, and even those critical of me on my article (and those were not even a majority) were thoughtful and respectful and took the time to explain and engage with me productively.

      But I am curious: please link me to one example of you being called a rape apologist.

      Careful: I’ll actually check the context. This didn’t go well for someone else who tried this line with me. It might not go well for you either. But that will depend on whether your experience was like mine, or his.

  10. 10
    Bourne Skeptic

    Now you’ve gone and done it Dick, you just doubled down!

  11. 11
    johngreg

    Well, well. So, you are now beginning to get a very real sense of how most of the FfTB commentariat, and some of your fellow FfTB blog hosts, treat the rest of the world, whether they are guilty or not of anything at all, beyond refusing to carry the FfTB torch and proselytize the sexist gender-feminist dogma, mantra, and blinikered ideology.

    Suck it up junior, suck it up. Maybe you’ll become a superstar and R. Watson herself will vilify you on groundless grounds, ethereal ethics, and no evidence whatsoever. Maybe Whiney Amy will even make you a kindergarten ceramic doodah.

    1. 11.1
      Richard Carrier

      Another false generalization fallacy.

      Nice try.

      We don’t fall for that here.

      Especially when you couple it with childish anti-feminist insults of women who have nothing whatever to do with this, as if to really sell your immaturity, emotionality, and inability to think or reason cogently.

    2. 11.2
      johngreg

      Another false generalization fallacy.

      It is by no means a false generalization fallacy at all. It is a simple statement of truth (accurately generalized).

      The majority of commenters at the the most active blogs here at FfTB, and the majority of commenters at Skepchick (and the A+ forum pathological disaster) are indeed fanatical overeacters, dogmatists and ideologues, misrepresenters of other’s statements, and angry mistreaters of virtually anyone who disagress with them in any fundamentsal way whatsoever. That is proved on a daily basis at several FfTB blogs and at Skepchick. Yes, occasionally, one of the “in-crowd” is allowed to post a semi-fundamental (usually somewhat ersatz and/or purely theoretical) disagreement, but it is a very rare occurence.

      What you, and earlier Dillahunty at A+, have experienced — the misrepresentation, the invalid quoting, the false claims directed at you about your position, ideology, etc. — are precisely typical of the kind of treatment almost all dissenters of the FfTB / Skepchick orbit experience. That, for clarification, is my point. I suspect that the reason you cannot see this, and missed that that was my point, is that you too are deeply engaged in the myopic fallacy that is the dominant ideology of FfTB, in general, and Skepchick. And at the A+ forum, that pathological disaster jungle of deeply damaged individuals striving for ultima pure victim cred.

      We don’t fall for that here.

      Um, what does that even mean?

      Especially when you couple it with childish anti-feminist insults of women who have nothing whatever to do with this, as if to really sell your immaturity, emotionality, and inability to think or reason cogently.

      They are not anti-feminist insults in any way shape or form; they are anti-Watson and anti-Amy insults pointing at the hypocrisy and mendacity of those two angry-bitter clowns of feminsim who, along with the fanatical horde at FfTB, engage in precisely the kind of public misrepresentation that you are also, now, victim to — they are key players in the ongoing bullshit factory, so, yes, they are valid participants of the ongoing disaster, yours included. They could equally well have been Lord Peezus and LousyCanuck — sans the so-called artworks — and I know for a fact that you would not even have thought to call that sexist.

      ______________

      Off topic: Why do you not enable comment previews?

    3. Richard Carrier

      The majority of commenters…

      That is simply false.

      The rest of what you say is similarly bullshit.

      I’m not wasting any more time with you on this nonsense.

  12. 12
    Rolf

    Funny how nobody cares about your gibberish any more.

    1. 12.1
      Richard Carrier

      My readership hit count and number of comments on my blog articles refute you.

  13. 13
    Thetaar

    WOT? (dreary Wall Of Text). Have a read of Physioproffe’s blog posts, much briefer and much more intelligent too. Learn from him.

    1. 13.1
      Richard Carrier

      Not my style.

      Indeed, trying to be brief only makes things worse, because the potential for misinterpretation increases with a decrease in nuance and qualification and contextualization.

      That’s why Twitter is the worst form of disseminating thoughts ever invented by humanity. Short of mime.

  14. 14
    Nathair

    That’s supposed to be what religious people do.

    You are confusing atheism with rationality. Would that they actually did go hand in hand.

  15. 15
    Jet

    Sorry to see the blowback on this one. Guess it just goes to show that nobody is immune to cognitive biases. Atheists can get just as trigger happy as the religious. Of course, we have far less of an excuse for our behavior than they do.

    Anyway, great post, as usual. Hopefully you can get some apologies or at least some retractions.

  16. 16
    umlud

    Just a point of formatting:

    Shouldn’t your last section heading actually be numbered as: “7: That It’s…”

    1. 16.1
      Richard Carrier

      Yes, thanks! Fixed.

  17. 17
    Hidden

    There’s that old saying that “if you’re not part of the solution then you’re part of the problem”.

    On that basis I think I’m part of the problem and the treatment Richard has received is the reason why.

    It’s pretty clear that anything you do or say, any opinion held (indeed, even anything neither said nor thought but which can be misrepresented from what you said) will be taken not just to be incorrect, misguided or criticisable but WRONG and EVIL. From Thunderfoot’s allcaps rants at the suggestion that sexual harassment might be a problem to Ana Mardoll’s equation of saying “really-horrible-but-not-actually-rape” with mansplaining rape apologetics; merely going near this subject is clear evidence that you are a rape apologist/mangina (delete as appropriate).

    I don’t want awards or expressions of undying gratitude. Even a slight nodding acknowledgement that maybe I’m not a complete and utter ****, I can live without. But I do think it is unfair for people to be turned on in this way. Yes, I agree that it’s a First World Problem, it’s a problem of privilege, it’s not the end of the world, others have it far worse and so on.

    But it is unpleasant, unfair and avoidable: so I for one will avoid it. Am I going to join campaigns on sexual harassment and rape? Will I join the internet debate on sexual relations on the net? Will I put my head above the parapet?

    Will I ****

    (Posted pseudonymously as I bet that even talking about not talking about rape will be taken as proof positive that I am one of rape’s biggest fans. )

    1. 17.1
      Richard Carrier

      I appreciate this comment, as long as it is assumed to be in response to a small subset of potential critics and not “everyone.”

  18. 18
    Chaos Engineer

    I think I see what’s happened.

    A few years ago, there was a big public debate over torture. Some people were treating it as an abstract philosophical question and saying things like, “Well, if terrorists have atomic bombs set to go off all over the city, and if you have perfect knowledge there’s no way to disarm them without torturing a specific known terrorist, then of course you’re morally justified in doing that.”

    That sounds reasonable, although of course it’s an impossibly contrived scenario that wouldn’t happen in the real world. The problem is that there are a bunch of simpletons out there who will hear this and say, “That taxi driver over there looks like a terrorist to me! That means that I’m justified in torturing him until he confesses!”

    So now we have different perspectives on the question. Some people will continue to see it as an abstract philosophical question, but the simpletons and the poor taxi driver will see it as a practical matter. I suppose we can just throw up our hands and say, “Whatever; if simpletons misinterpret my argument then that’s not my problem, no matter how easily foreseeable it was. It’s a shame about the poor taxi driver but that’s got nothing to do with me.”

    On the other hand, maybe it would be better for society-as-a-whole if we took five minutes to clear the room of simpletons before we started debating the topic. For that matter, if we just want to be contrarians for the sake of contrarianism, maybe instead of “Resolved: Torture is sometimes justified” we could debate “Resolved: Hitting yourself over the head with a hammer is sometimes beneficial.” If the simpletons misinterpret the debate then they’ll learn a valuable lesson, without hurting bystanders in the process.

    Do you see where I’m going with this? The name “Michael Shermer” is like flypaper to every misogynist lackwit on the Internet. If you say that name and then start up with something that looks like “Resolved: Figuring out consent is an intractable problem; just look at these contrived scenarios” then they’ll think you’re on their side. (And as you admit up above, people are having a lot of trouble understanding your position.) You’re certainly free to post this sort of abstract philosophical argument, but is it really worth it?

    1. 18.1
      Richard Carrier

      Interesting analogy.

      Although I think the people who were saying “Well, if terrorists have atomic bombs set to go off all over the city, and if you have perfect knowledge there’s no way to disarm them without torturing a specific known terrorist, then of course you’re morally justified in doing that” were not actually saying that in good faith. They were not, for example, saying it would be justified only in such bizarre and extreme conditions; they were actually trying to avoid admitting those are bizarre and extreme conditions. And thereby trying to justify the torture that was actually occurring.

      By contrast, my article, if we analogously converted it to being about torture, would put that scenario closer to Scenario A (actually I would find a realistic and plausible scenario and not that one, but still) and in Scenario B would put the worst possible thing that is still not yet torture under international law (or meaningful moral definition), and then explain that that would still be awful and wrong, even if it wasn’t technically torture (indeed, modern prison reform advocates can cite countless real world examples in our actual prisons now that meet that description, and this is a very powerful argument for getting angry and doing something to push real prison reform in this country).

      So, IMO, your analogy doesn’t quite fit your point.

    2. 18.2
      WithinThisMind

      That’s a wonderful analogy for an additional reason as well. It’s purely a thought experiment on a situation that does not actually happen. It’s merely what the perpetrator of the act tells themselves to justify it.

      As such, like several of the scenarios offered in the article, it’s rather insulting. It’s conducting thought experiments to potentially justify a real life horror that many have experienced and many more will experience, all as some apparent sort of intellectual masturbation rather than any attempt to solve the problem. Is it any wonder then, that people are insulted and offended and thus unwilling to provide any sort of benefit of the doubt?

      My experience is not your thought experiment. Moreover, your thought experiment doesn’t get to tell you what my experience was, nor the experience of my friends.

      Because I’ve had friends in situations that on the surface, played out like Carrier’s imaginary scenario B, and because of narratives like the one Carrier built, the people who raped my friends went on to rape again. Because of these types of narratives, date rape is by far the most common type of rape, with some perpetrators having victims in the dozens.

      And here we are, with the narrative built now as another thought experiment for the purpose of justifying it as ‘not rape’. No wonder it’s the most common type of rape – even our ‘allies’ are muddying the waters.

    3. Richard Carrier

      That’s a wonderful analogy for an additional reason as well. It’s purely a thought experiment on a situation that does not actually happen. It’s merely what the perpetrator of the act tells themselves to justify it.

      Not Scenario B. So I don’t know what you are talking about. Not only does Scenario B actually happen, it is very definitely not what a perpetrator of such an act wants to believe really happened.

      You yourself later claim Scenario B really happens, so you are contradicting yourself here, but I think you do that because you are confusing Scenario B with something else–but even Scenario B as I actually described it actually happens, contrary to your denial here that it does; and as I describe it, and as I explain, it is not what any caring person would be comfortable believing about themselves.

      As such, like several of the scenarios offered in the article, it’s rather insulting.

      How? Talking about what’s awful about rape is insulting?

      You are simply not reading the article I wrote. You are reading some fictional piece in your head.

      It’s conducting thought experiments to potentially justify a real life horror…

      Justify? Where in my article do I justify Scenario B? You are even here commenting on an article that meticulously proves I did the exact opposite–I condemned it, not justified it.

      You would appear to be delusional at this point.

      My experience is not your thought experiment.

      I didn’t discuss or describe your experience. So you can’t accuse me of having made it my thought experiment. I only explored examples of the furthest possible extremes (best and worst case) of what would commonly fit a specific limited description that was made available to the public of something that actually happened–and “example” and “furthest extremes possible” do not constitute all possible things that that description could have referred to. And I was very clear about that. I never implied otherwise.

      Moreover, your thought experiment doesn’t get to tell you what my experience was, nor the experience of my friends.

      I’m not sure what you mean by this. If you are talking about your freedom to define “rape” any way you want, including differently from the law and from what I use as the most common moral definition, see my comment above.

      Because I’ve had friends in situations that on the surface, played out like Carrier’s imaginary scenario B, and because of narratives like the one Carrier built, the people who raped my friends went on to rape again. Because of these types of narratives, date rape is by far the most common type of rape, with some perpetrators having victims in the dozens.

      I think you are confusing Scenario B with Scenarios C and others I did not describe. Because I know date rape victims. And what they report happening was very definitely not Scenario B. Although many a serial date rapist might find themselves in Scenario B from time to time. Which, as I explained, is a reason to be very worried about whether you are perpetrating Scenario B.

      And here we are, with the narrative built now as another thought experiment for the purpose of justifying it as ‘not rape’. No wonder it’s the most common type of rape – even our ‘allies’ are muddying the waters.

      Condemning Scenario B in no uncertain terms, as I did, does not “muddy the waters.”

      You seem to be more obsessed with semantics than the MRA’s. Your need to only condemn what is actually called rape gives them cover to claim that if it’s not rape then it’s fine. Exactly the rape apologetics I was arguing against. And yet here you are the one facilitating that rape apologetic.

    4. 18.3
      Jason Goertzen

      Re: Good faith.

      I’m curious why you think this? Sam Harris was at the center of this controversy and explained it here: http://www.samharris.org/site/full_text/response-to-controversy2#torture

      Setting aside (if you wish) whether you agree with him or not, why do you think this is “in bad faith?”

    5. Richard Carrier

      Because he ignores (or gets wrong) the reality of what is actually happening, and yet used implausible extreme scenarios to justify what was actually happening.

      He was not saying “what is actually happening is immoral; what would be moral would be this other extreme case, which isn’t really happening.”

      One can maybe say he is arguing in bad faith with himself (delusionally trying to convince himself that because x is moral, therefore y is moral, without ever even noticing that x =/ y). But it’s arguing in bad faith all the same.

      At least Harris acknowledges that torture should be illegal and can be wrong. But he then says it should have been used more than it was (!), and says nothing against any actual case of its being used (among real world cases he only condemns goalless torture, e.g. Abu Ghraib, and things that aren’t torture, e.g. denying counsel to detainees).

      Harris tends to be a terrible philosopher. This is one more example.

      Harris wants to rationalize broader use of water-boarding (e.g. he explicitly argues for this) because, it would seem, he thinks every case that it was and is and will be used on will be x. When it is not and probably never has been or ever will be. This is motivated reasoning, not sound philosophical reasoning.

      There is a sound philosophical point in there somewhere (e.g. torture should be illegal and such a law should only be broken in very extreme and unusual conditions). But it is buried under his contortions to somehow make that valid point into a justification for water-boarding everyone who might know anything about any possible bombing (“the case of Baitullah Mehsud…is a perfect example: Had his wife been water-boarded in order to obtain the relevant intelligence, rather than merely annihilated by a missile, we can be sure that torrents of outrage would have ensued.”).

      That’s arguing in bad faith.

      It may just be a really bad argument. But he would not be making it if he wasn’t trying to get the conclusion he wants, from a premise he knows almost everyone will accept–which cannot logically lead to the conclusion he wants.

      In the end, he is trying to morally justify y, which he admits is torture. He is not arguing that y is immoral and wrong even if it is not torture. That’s why this analogy is impertinent here.

    6. 18.4
      WithinThisMind

      Richard,

      Before claiming someone hasn’t read your post, please try to actually read their response.

    7. Richard Carrier

      I did.

      So you aren’t communicating anything with this remark.

      If I mistook something you said, identify it. I’m happy to be corrected. But I only accept reality. So if you now misrepresent what you said, I’ll call you out on it, and prove it by quoting you.

    8. 18.5
      Jason Goertzen

      I can’t see anything in what he’s written that suggests he’s advocating that torture “should have been used more than it was” so long as here you mean (as is suggested by the “(!)”) that he thinks the total number of occurrences should have been higher. It’s not even remotely clear that this is what he’s arguing, especially given the pains he takes to show what would have to be the case for it to obviously be justified. Saying “under extreme circumstances, torture would be justified” is NOT evidence you believe “under less extreme circumstances, it would be justified.”

      He argues that (1) some actual cases of torture *may* have been justified. He’d possibly agree, but does *not* explicitly argue, that (2) there are cases where torture should have been used, but was not. The closest he comes is when he argues that there were cases where torture would have caused an outcry, yet innocent collateral damage was not. He also, it bears repeating, explicitly argues that (3) there are cases where torture was patently unjustified.

      You say “Harris wants to rationalize broader use of water-boarding (e.g. he explicitly argues for this) because, it would seem, he thinks every case that it was and is and will be used on will be x. ”

      But this is exactly what he does NOT explicitly argue. I don’t know where you’re getting that. It’s not even implicit to his arguments. I’ve re-read his blog posts on the subject, and the relevant section of The End of Faith (pp. 192-196), and I don’t see anything that suggests he believes this.

      His argument is that torture is not categorically wrong–that it’s possible for their to be cases where it is justifiable (hence (1) above). His purpose was to reject the extreme (and common) view that torture is *always* wrong. You can’t move from that to “(4) *all* cases of water-boarding have been, are, and will be analogous to the extreme cases wherein torture would certainly be justified” or even the weaker (5) “water-boarding should have been used more than it was.”

      He nowhere says either (4) or (5), or even says anything that only makes sense if he believes one of them–which makes me wonder why you are so confident he believes (4) that you think he’s arguing in bad faith by not having said it explicitly.

      To assume he has an unrevealed conclusion that is his real motivation, and then criticize him for withholding it is a pretty classic case of uncharitable reading. It’s a lot like the behaviour your critics engaged in regarding your Scenario B, which you spent this blog post exposing.

    9. Richard Carrier

      Harris explicitly said (in the link you gave) that the wife of a known terrorist (whom he names) should have been captured and tortured, so as to prevent the need of bombing his house. He clearly is saying more torture should be conducted, because it’s better to torture the wives of terrorists than to launch military attacks on terrorist facilities. I cannot imagine he has actually thought this through, and there is no evidence he has any accurate grasp on the reality of what he is suggesting. But it is undeniable that he wants to rationalize such strategic uses of torture–because he is actually doing so, and using philosophical arguments to do it, and fallaciously using the “ticking time bomb” rationale to boot.

    10. 18.6
      Protagoras

      The point of making an analogy to the torture debate and ticking time bomb scenarios is that framing and context can be more important than the factual accuracy of the particular claims being made. It seems that your response to the analogy is to nit-pick about differences between ticking time bombs and your stories, which seems to be defensive and dismissive. Surely the important point is not whether the examples line up in every particular, but just that framing and context do matter a lot. Given how widespread the misinterpretations and hostile reactions have been, perhaps you should consider that you might have made some sort of mistake in the realm of framing?

    11. Richard Carrier

      I no longer understand the relevance of your line of argument to this comment thread.

    12. 18.7
      Jason Goertzen

      “Harris explicitly said (in the link you gave) that the wife of a known terrorist (whom he names) should have been captured and tortured…”

      Did he? Really?

      Read it again. Here’s what he actually wrote:

      “The case of Baitullah Mehsud, killed along with 12 others (including his wife and mother-in-law), is a perfect example: Had his wife been water-boarded in order to obtain the relevant intelligence, rather than merely annihilated by a missile, we can be sure that torrents of outrage would have ensued.”

      He doesn’t say it SHOULD have happened–only that if it HAD happened, outrage would have ensued, despite none having ensued when 12 people were killed with a missile attack. It was in the context of describing how differently torture and collateral damage are perceived publicly.

      How this constitutes “explicit” endorsement that she *should* have been tortured is beyond me. It’s not even implicit, when understood with an appropriate application of the principle of charity.

    13. Richard Carrier

      Harris’ entire argument is that outrage should ensue at our not having done the torture instead; he is arguing against the outrage at the torture scenario.

      Hence you are quote mining.

      Harris wrote:

      “In fact, it is easy to see how information gained through torture might mitigate the risk of collateral damage. If one found oneself with an apparent choice between torturing a known terrorist and bombing civilians, torturing the terrorist should seem like the more ethical option.”

      He is therefore arguing for the use of torture. It is precisely here that he uses the example you quote:

      “The case of Baitullah Mehsud, killed along with 12 others (including his wife and mother-in-law), is a perfect example” …of the statement I just quoted above (and you omitted)… “Had his wife been water-boarded in order to obtain the relevant intelligence, rather than merely annihilated by a missile, we can be sure that torrents of outrage would have ensued. It seems, in fact, that many people do not understand what the phrase “collateral damage” signifies, and thus they imagine that I have drawn a false analogy. Most assume that my analogy fails because torture is the intentional infliction of guaranteed suffering, whereas collateral damage is the unintentional imposition of possible suffering (or death). Apples and oranges…”

      Harris then goes on to rebut this argument and all other arguments against using the torture-the-wife plan, a “perfect example” of a better way to go than bombing the house. He is thus explicitly and at length advocating for this torture plan and against everyone who tries arguing against him on exactly that point. That’s the whole thing he is doing here. His entire argument.

      How you miss that is beyond me.

    14. 18.8
      Jason Goertzen

      Richard. Don’t accuse someone of quote mining, then do it yourself.

      I gave that quote because it sums up the context of the remark in question. You quote several sentences earlier–then leave out the directly preceding sentence–and make it look like he was referring to something he plainly was not when he said “The case of Baitullah Mehsud [...] is a perfect example.”

      When people say “x is a perfect example,” typically they are referring to the very last thing they’ve said. What was it? Was it “it is easy to see how information gained through torture might mitigate the risk of collateral damage,” as you’d like it to be? Was it “If one found oneself with an apparent choice between torturing a known terrorist and bombing civilians, torturing the terrorist should seem like the more ethical option?”

      No. It was:

      “In fact, very few critics of my collateral-damage argument even acknowledge how strangely asymmetrical our worries about torture and collateral damage are. A conversation about the ethics of torture can scarcely be had, and yet collateral damage is often reported in the context of a “successful” military operation as though it posed no ethical problem whatsoever.”

      THIS is what she is a perfect example of. So don’t accuse me of quote mining, then *actually* quote mine by leaving out the immediately preceding sentences. In the *full* context, he clearly meant exactly what I showed him to mean: that people don’t see the asymmetry between their reactions to torture and their reactions to collateral damage. It’s not at all clear he meant “and therefore, we should have tortured her.”

      The sentences that immediately follow ALSO support my reading. On your reading, he’s talking about people not thinking clearly about the difference between torture and collateral damage–then he goes back to talking about preventing collateral damage with torture–then returns to the subject of asymmetry. In studying Josephus, you point to shit like this as evidence of interpolation. Yet when reading Harris, you think it’s the plainest–”explicit” meaning of the paragraph? Come on!

      There are two possible readings of those sentences. One meaning has him jumping subjects, and saying something stupid and insane (or did you not read the story? How could torture have prevented the collateral damage? They knew where he was!). The other has him writing sentences in a progressive order that makes perfect sense, while saying something reasonable.

      I can’t understand how *you* continue to insist your reading is obvious, let alone explicit. So at least we have that in common.

    15. Richard Carrier

      You clearly are reading what Harris wrote in a peculiar way and not at all as I am reading it.

      You should ask Harris himself if he thinks torturing that wife is what he prefers be done than bombing the house.

      I don’t think you’ll like his answer.

    16. 18.9
      Jason Goertzen

      I had the same idea, and have asked him to clarify his meaning. But I didn’t ask a grammatically weird hypothetical, like you’ve suggested–”prefers be done” rather than what “should have” been done in the actual, historical situation: I asked if he believes she should have been tortured.

      That being said, I have to ask…as you’ve put it, the question doesn’t seem that crazy. Does he think it would be preferable to torture her than to murder thirteen innocent people, herself included? What’s your answer? Hell, what would her answer be, if she had the choice between being murdered or tortured–especially if she knew that torture would save twelve other people?

      I think you’ve accidentally and ironically framed the whole thing back into a pie-in-the-sky thought experiment where the choice is between torture and murdering innocent people. But this bears almost no resemblance to the reality of what happened–which I’ve already pointed out to you. Remember, they knew where he was, and killed him. They *didn’t need to torture anybody to find out*. So it’s an entirely hypothetical situation Harris has imagined–a scenario in which they needed to torture her to obtain the relevant intelligence which, in reality, *they already had.*

      I say it’s ironic because you’ve accused him of arguing in bad faith precisely because you’re not interested in his justifiable answers to thought experiments. You’re interested in what he’s secretly advocating: that torture be used more in real life. And so that is what I’ve asked him if he believes.

    17. Richard Carrier

      Right. That’s the real question.

  19. 19
    Drew

    I keep getting imposter warnings so I’m going to try posting again. Forgive me if this posts multiple times:I logged out and re-logged in.

    The only thing that I would put in is that I had thought, even though I’ve not been able to find a reference to an law on it, that in some places a person who is too drunk is deemed incapable of forming consent for the sex act.

    In this way, scenario B may be considered a sort of statutory rape. (Active participation in this case would be irrelevant)

    After your last posting I had looked for a reference to support this notion that I had but I could not find one, and thus had not posted anything about it.

    It may be that this is not a criminal law but may be a policy adopted by some universities (i.e. if you have sex with someone who is too drunk to be considered able to consent you may be expelled for rape) and I had just thought it was also law.

    1. 19.1
      Richard Carrier

      Re: the tech issue. You can report those to our webmaster if standard solutions don’t work (there is a link in the top margin of every page on FtB now for that, labeled “Tech Issues”). But generally what you report only happens if you try to use a name someone is already registered under (which could be you, so the solution is just logging in as you before commenting). For example, I will sometimes try to comment and forget to log in and it ID’s me as an imposter (someone trying to pretend to be Richard Carrier). But then I just go log in and problem solved.

      Re: the legal issue. I discuss that (with quotations of laws and legal literature) in the original article. You should read that section. The reality is more complicated than you might think (see my comparison of California with New Jersey law, and why I think California law is more in alignment with moral justice on this matter). I even mention the fact that some college websites do indeed get this completely wrong (some even say any inebriation whatsoever negates ability to consent; and they do not say this is campus policy, they mistakenly say this is the law).

    2. 19.2
      Drew

      I’d read that part but the thing I was describing was different, at least it seems it seems different in my mind.

      What I was under the impression some laws said “If a person is sufficiently drunk, even if they seem to consent, and/or actively participate, it is rape anyway because that person cannot legally make the decision to have sex.”

      What I interpret the statutes you referred to to mean “If a person is so drunk they’re unable to resist or voice objection, having sex with them is rape”. Although the wording about the reasonableness of the accused knowing the state of the victim seems to suggest that if the assailant is themselves sufficiently drunk to not be able to recognize the incapacitated state of the victim they would not be culpable under the law.

      As I said, I was unable to find an actual statute that states it in a way in line with what my thinking was, it’s possible that some others were under the same impression as I.

      Though now that I look over the jury instructions again, they read as a sort of hybrid between the two meanings stated above.

    3. Richard Carrier

      Note that the legal literature I quote and link to in the original article has discussions of the circumstances you are asking about (whether and/or when a perpetrator make a defense of incapacity).

  20. 20
    SubMor

    Why are you stuck on the legal semantics game here? Whether or not a scenario qualifies as the crime of rape, the scenario B you described represents a clear case of unwanted sex. If a person enters a sex act enthusiastically but later wants it to stop, that person not voicing this may well render it unprosecutable under criminal law, but that doesn’t undo their desire for that act to stop or retroactively create consent. Also, rape does not require the presence of a threat; all it requires is the presence of an unconsenting participant.

    … what you call it doesn’t matter, as if somehow if it’s not rape then it’s okay

    Of course what you call it matters! One party thinking I want this sex to stop means the sex is not consensual, even if that nonconsent isn’t explicitly voiced. You may have “denounced” the scenario, but you also tried (and continue to try!) to deny victims of similar situations the right to call their experiences rape.

    You described a highly intoxicated person–one who never voiced explicit consent to sex, whose boundaries weren’t even considered, and who afterward felt ashamed, exploited, and foolish over something you clearly state they probably wouldn’t have done “if [they'd] been given a chance to think about it.”. You say this hypothetical person began by participating “enthusiastically,” but shortly thereafter (before it had concluded, even) felt unambiguous feelings of discomfort with the situation. When it was all over, it’s clear that that person had been traumatized by the experience, and your telling them you aren’t allowed to call what happened to you rape (and by extension, telling everyone who’s been in that situation themselves) is reprehensible and adds to that trauma. You are gaslighting people–culturally, we identify sex either as consensual (yes, I will have this sex) or rape (I do not want this sex), and by denying the victim the right to use that latter term, you are saying their sex was consensual. There is no third category here–either there is consent or there is not, and if there is not, it is rape. If someone does not want sex, it cannot be consensual and thus is rape. Saying this rape wasn’t a real rape is rape apologetics.

    I also have a very hard time imagining not noticing that my partner had gone from enthusiastic participation to wanting me to stop. The perpetrator you describe is clearly a predator, but that’s a separate conversation that I don’t feel like having right now.

    1. 20.1
      Richard Carrier

      You are simply agreeing with me. This is what I said in the original article. It’s rape apologists who are stuck on semantics. I’m the one explaining that the semantics won’t get them off the hook.

      As for being “allowed” to call something rape, I don’t know what you intend. You are only allowed to call rape under the law what is rape under the law. If you mean rape in some other sense, then you can be as loose as you like (all the way to “raping the land” etc.). There is no one stopping you.

      What I did, beyond note how rape was defined under the law, was define rape morally as simply sex without consent. If you want to define rape differently, then that’s fine, just be aware that you will be asked to explain what you mean, or will be assumed to mean something you don’t, since most people will operate with a definition established by English convention and not the definition you are using.

      But Scenario B is sex with consent. It is therefore not rape, when we define rape as simply “sex without consent.”

      If you want to rewrite what I wrote so that consent is actually and knowingly withdrawn in Scenario B, you are then creating Scenario F (where consent is physically or verbally withdrawn after being given). Which I called rape (I explicitly identified such an occasion, though without labeling it, and noted it would then be rape). But you would then not be saying anything other than what I already said.

      So this is not gaslighting. Unless you are trying to gaslight me.

    2. 20.2
      WithinThisMind

      Pretty much. He’s using semantics to justify calling a victim’s experiences ‘not rape’, then claiming otherwise.

      And once again, he is leaving out the most important part of the issue in his attempt to do so –

      —But Scenario B is sex with consent. —

      No, it isn’t. This is a falsehood, and the reason you are being called out as wrong.

      “Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another. Consent assumes a physical power to act and a reflective, determined, and unencumbered exertion of these powers.”

      As soon as mental capacity is compromised, consent is no longer possible, which is indeed something recognized by the law. Therefore, yes, scenario B was rape, because since the ability to give consent was compromised, no consent was possible.

      This fantasy you have about it being only two beers and she was down with it and then cried rape later is just that, a fantasy, one used by many rape apologist and MRAssholes. It’s a bit of mental masturbation you designed as a thought experiment to support a narrative that many rapists used to justify their actions. It bears no relation to how the act actually happens in the real world, and that is why you are being called out.

    3. Richard Carrier

      He’s using semantics to justify calling a victim’s experiences ‘not rape’, then claiming otherwise.

      Here you are calling all defining of terms “semantics” as if that derogatorily meant something. If you don’t believe words should have meanings or their meanings don’t matter, then you are the one with the problem.

      Caring what words mean is not derogatorily “semantics,” it’s the most important thing we need to grasp about language.

      —But Scenario B is sex with consent. —

      No, it isn’t.

      Yes, it is.

      And you’ve given no reason to believe otherwise.

      Indeed, you have yet to even quote or discuss what I actually wrote in describing Scenario B.

      “Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another. Consent assumes a physical power to act and a reflective, determined, and unencumbered exertion of these powers.”

      As soon as mental capacity is compromised, consent is no longer possible, which is indeed something recognized by the law. Therefore, yes, scenario B was rape, because since the ability to give consent was compromised, no consent was possible.

      This is false a dozen ways from Sunday.

      First, the woman in Scenario B “possesses and exercises sufficient mental capacity to make an intelligent decision” and “demonstrates consent by performing an act recommended by another.” She also has “physical power to act” in a “reflective, determined, and unencumbered” way, but like most actions and decisions we all make, and legally and morally consent to, she didn’t do that (e.g. she doesn’t try to stop what’s happening to reflect first–just as many a sober consenting person does as well, because that’s normal human behavior).

      Merely not reflecting does not negate consent, legally or morally–if it did, most decisions you make would be non-consensual.

      Second, “as soon as mental capacity is compromised, consent is no longer possible” is scientifically and legally false. You are basically saying as soon as you have even a single drink, you cannot consent to anything. That would mean you could not even consent to the use of your credit card to buy a second drink, or indeed even consent to have a second drink.

      Normally I would say you can clearly see the absurdity of this, but so far you have not demonstrated an ability to see anything clearly, so I am not optimistic.

      At any rate, in the original article I quote the legal literature on this, and explain why what it says is sound even in the moral domain: a compromised ability is not the same as lacking that ability. More compromised ability does entail more moral responsibility on anyone who would seek another’s consent–as I explicitly explained in my original article. But “rape” is a question of objective fact (what actually happened); it is not a boundary between the moral and the immoral, as if it’s not being rape entails it is moral. I explicitly argued the contrary: lots of things that aren’t rape are still morally wrong. Including perpetrating Scenario B.

      This fantasy you have about it being only two beers…

      I never mentioned two beers. Or even beers.

      So now you are delusionally inventing things I said.

      This is the kind of delusionality I’m dealing with apparently.

      …and she was down with it and then cried rape later…

      This does not describe Scenario B.

      It also ignores that I said I believe what happened could be Scenario A. Or anything in between.

      Thus, again, you are accusing me of doing something I in fact never did.

      You are also ignoring the fact that I argued the exact opposite of what “rape apologists” do: I argued that even if it isn’t rape by this or that definition, then it is still awful and condemnable. No rape apologist says “hey, at least what I did was only horrible and condemnable and immoral, so it’s okay then.”

      It’s a bit of mental masturbation you designed as a thought experiment to support a narrative that many rapists used to justify their actions. It bears no relation to how the act actually happens in the real world, and that is why you are being called out.

      Your commentary bears no reality to what I actually wrote in the real world.

      And if what I am being called out for is what I never said, then you are basically making my point for me–verifying the last sentence of the article you are commenting on here.

      And learning nothing thereby.

    4. 20.3
      WithinThisMind

      No, Richard, that’s a legal definition, as provided to me by a lawyer when I requested he send me a legal definition of the word ‘consent’.

      —First, the woman in Scenario B “possesses and exercises sufficient mental capacity to make an intelligent decision” —-

      No, she doesn’t, and this is the part where you are consistently wrong (morally, ethically, and legally) and refusing to acknowledge that – her ‘mental capacity to make an intelligent decision’ has been compromised by the alcohol/drugs.

      He (perhaps you’ll listen to a man telling you this) was also quite adamant that if someone is impaired via drugs or alcohol and someone else takes advantage of that to have a sexual encounter, they have committed rape – because someone who is mentally impaired, such as by drugs or alcohol, cannot consent.

      You are wrong, Richard, and that is why you are being called out as wrong. I’m sorry that you are unwilling to listen to the victims and instead have bought the MRA stance instead of reality.

    5. Richard Carrier

      I cited/quoted actual laws and peer reviewed legal literature. Nothing you have said contradicts any of that. You still won’t even look at what I quoted or answer it.

      As for what is happening in Scenario B, you are simply adding fictions to it that are not there. Or else you are ignoring the actual law (which I quote) and the actual published legal literature (which I quote). As well as basic neuroscience.

      Either way, you are not dealing with reality. You are wrong on the science, you are wrong on the law, and you are wrong about what’s described in Scenario B.

      You continue to refuse to read my quoted resources on this. You simply ignore they exist.

      This is delusion. You will not change your beliefs even in the face of overwhelming evidence they are false. You won’t even acknowledge the evidence exists, much less look at it or address it.

      What use is there in conversing with such a person?

    6. 20.4
      SubMor

      @Richard Carrier

      You are simply agreeing with me.

      If you think I’m agreeing with you, you have fundamentally misunderstood either my words or your own.

      It’s rape apologists who are stuck on semantics.

      Since you are stuck on semantics, what does that say about your argument? Yes, we agree that semantics cannot undo the nature of the act. Where we diverge is on whether or not scenario B is rape.

      You are only allowed to call rape under the law what is rape under the law.

      You are being terribly and obviously inconsistent. You claimed scenario B “is not rape”; you did not say merely scenario B “is not rape under the law” (and in the absence of a specific legal citation, this is something I seriously doubt you have the ability or the authority to declare)–what you said is scenario B “is not rape.” Given that laws are not inherently perfect as a result of their legal status, I don’t see what relevance referencing the law introduces to the situation. At best, all this does is obscure mutual understanding. At worst, it enables rape apologists to rationalize away their sense of moral responsibility for the rapes they commit or defend. Regardless, it is a red herring.

      In sum, please do not attempt to divert the conversation back to “rape under the law,” which I could not care less about.

      If you mean rape in some other sense, then you can be as loose as you like

      I told you what sense I mean “rape” in. If you reject the definition of sex that does not include the consent of all involved parties, please specify the one you were operating under when you asserted scenario B was “not rape.”

      But Scenario B is sex with consent.

      It most certainly is not. What you have done is to present a scenario where you have described a hypothetical object as a square circle, defined it as just a circle, and when others have pointed out that it is still square, you have responded with but it’s round!, failing entirely to notice that it does in fact have corners.

      In other words, if you had intended to create scenario B as “sex with consent,” you failed in your goal, and you are now defending a self-contradictory definition by merely asserting its internal coherence.

      If you want to rewrite what I wrote so that consent is actually and knowingly withdrawn in Scenario B

      Whoa! Whoa whoa whoa. No. Absolutely not. Do not move this goalpost. A person does not have to verbally and explicitly state I withdraw my consent in order for that person to want the sex to stop. Many people have desires they do not voice, and that a person does not voice a desire does not undo it. Rape is sex without consent, not sex with explicit nonconsent.

      It is clearly possible for a person to be raping someone without knowing it is rape. In the most charitable interpretation possible, this descriptor can apply to scenario B. Even if the sex began consensually, as soon as the victim decided they were uncomfortable with having that sex, it became rape, regardless of whether or not it should be criminally prosecutable (which is a secondary and irrelevant consideration to this point). Yes, that means the perpetrator may not have known their victim wanted them to stop, but that doesn’t make it not rape.

    7. Richard Carrier

      Since you are stuck on semantics, what does that say about your argument?

      I’m not stuck on semantics. I’ve been quite flexible with the semantics. And I’ve repeatedly and explicitly made clear the semantics can’t change whether something is right or wrong or good or bad.

      You are the one who seems obsessed with whether we utter a particular sound when a particular thing happens.

      You are being terribly and obviously inconsistent…

      No, I am not. I made a distinction between legal and other definitions in my original article. I made the same distinction here. There is nothing inconsistent about this.

      Given that laws are not inherently perfect as a result of their legal status, I don’t see what relevance referencing the law introduces to the situation.

      I answer that in the article you are commenting on here. So now you are not even responding to what I’ve said. Which is a violation of my comments policy.

      At worst, it enables rape apologists to rationalize away their sense of moral responsibility for the rapes they commit or defend.

      Precisely the type of argument my entire original article was refuting.

      A point you continue to fail to grasp.

      You also continue to insist there is no consent in Scenario B. For no valid reason whatever. You are ignoring all the applicable science and legal reasoning, and their relevance to sound moral reasoning. Continuing to simply ignore what I say and gainsay it without any basis in fact is not a conversation. It’s just talking to a wall.

      A person does not have to verbally and explicitly state I withdraw my consent in order for that person to want the sex to stop.

      At no point in Scenario B does the women decide she wants the sex to stop.

      And even if she did, I have explained the legal reasoning as to why mere thoughts cannot withdraw consent already given, and why that legal reasoning should inform moral reasoning. In the very article you are commenting on here. And everything I said on that point you are ignoring and refusing to engage with. In violation of my comments policy. As well as in violation of common courtesy and sound thought.

      Yes, that means the perpetrator may not have known their victim wanted them to stop, but that doesn’t make it not rape.

      Then you are simply not using the word “rape” the way most other people use it. Which is fine. As long as you admit that’s what you are doing–and that it will then mislead everyone else who doesn’t know you are using it differently than they assume.

      But it seems to me you are confusing the inability to prove a fact in court (that a crime occurred) with the lack of a fact required for a crime even to have occurred. People cannot be held accountable for things they cannot know they are doing. Period. That is a universal principle of justice, and not just a principle in law.

      But I explained this in the article you are commenting on here. In detail. And you are ignoring all of that, and engaging with none of it. Once again, in violation of my comments policy. As well as in violation of common courtesy and sound thought.

      Shame on you.

  21. 21
    Amber

    [This will engage significantly with the first post/comments. If you'd rather I move it there, then I'll do so.]

    Richard: As someone who was responding to the FB comments about the Shermer situation and possibly among the people you were alluding to before ["Likewise in my Facebook thread on this article. In fact, nearly every woman who has commented on it, anywhere that I have seen, has not said what you claim"], I feel a quasi-personal need to respond to your writings here and the response.

    I’ve been re-reading the original post and the comments to it because I genuinely don’t want to misinterpret or overlook anything — although the post and comments taken together are of such a length that I’ve auto-skimmed a few parts, but I tried to scroll back up and catch everything I missed before. There are probably a few details I am forgetting as I write this, but I don’t think I’ve overlooked anything substantive enough to change my entire perspective.

    I have to be honest — I didn’t read the original post all the way through when it was circulating the first time. I read the opening and the middle, then got to the part you marked as Trigger Warning and stopped because… well, you know. Anyway, I’ve now read the post, and your reasons for saying what you said — which seem to be that, best possible scenario, Shermer is still a douche? — but there are aspects of the context of this post and the replies and the bigger picture which trouble me, and which I think are worth remarking upon.

    First of all, I don’t mean to quibble semantics, but language is hugely important. Most of the “you” in your original post is aimed at perpetrators or potential perpetrators ["Seriously. If you can’t persuade a woman to have sex with you when they are sober, you really should admit it’s slimy and pathetic to then try and impair their judgment just so that you can take advantage of them."], but then in the scenarios, the “you” switches to the victim ["Then you start to feel you must have drunk too much, your vision is blurring and you feel a little dizzy."] — if you said this in the original post, I must have missed it, but the most reasonable conclusion I can arrive at here is that you were addressing potential perpetrators who you then were asking to place themselves in the scenario of the victimized person? For empathy’s sake, I assume?

    But, if that was your aim, I am not convinced the second person was the best rhetorical choice, because to me — that second person — that makes it feel like the article is addressed to MRAs and creeps, and then suddenly it’s addressed to rape survivors, or is at least very intimately framing hypothetical rape survivors in a place (your blog) where a bunch of real rape survivors are reading (as are a bunch of real trolls/MRAs/etc) and then encountering that second-person “you” which, well, re-situates itself in that position (survivor). I seem to remember the post said you were addressing potential perpetrators — mostly other men who might put themselves in these situations with women, from the perspective of a man, so the switch into the victim scenarios ["you"] feels jarring, and I don’t know that it was necessary to make the point. I mean, the article prior to that part was unequivocally awesome and handled the point quite nicely on its own, I thought.

    But — the use of the scenarios. Something about turning this into a thought experiment troubles me from the start. We don’t know all the details, but we WERE building off a real incident and a real series of incidents. I recognize the good intentions you have in exploring hypotheticals, but there’s something incredibly unsettling about writing out in semi-lurid details how ashamed “you” [the hypothetical "you"] feel after a sexual encounter of [A, B, C] details on a page where numerous rape survivors are probably reading, and which was INSPIRED by a real survivor out there somewhere who may or may not be reading. Yes, you Trigger Warned, which was responsible! But… I am having difficulty articulating this: I feel like there’s a difference between trigger warning for a woman or man reporting a real incident of sexual violence against them and a trigger warning for a graphic thought experiment probably (?) addressed at perpetrators but that comes off as really addressed, in context, to survivors [again, the "you"] or in a way that very well might elicit all kinds of bad feels in survivors who are reading your work for communal emotional support, as you’ve been very much an advocate of fostering safer communities. And, again, based on a real incident — speculation, highly graphic, springing out of some real tangible incident out there somewhere, with a real someone who may or may not be reading.

    Moreover, a thought experiment written by a non-survivor (? I am assuming based on your words) and a scenario that is mostly framed as man-on-woman rape when you yourself, creating these graphic scenarios, are a man — and I think your out-group status (man, non-survivor) is important not because I think you can’t write about rape (that would be silly and extreme), but because as an ally, you are well aware (I’m sure I’ve even seen you say as much) that as much as you might empathize in theory with the visceral predicament created by a rape culture, I do not think you know what this feels like, day to day.

    Thus the debate about threat =/= social pressure, kissing/kissed back, person initiates it but no verbal response was given… just feels like a really uncomfortable and potentially alienating debate to be having (and whose voices are being asked/invited/elevated into this debate?), and, again, in a space where many survivors are probably reading.

    Basically, what I’m saying here is, even if everything you say IS *100% true in the letter of the law,* (and I am not going to sit here and debate law, honestly — that’s not so much my angle) I don’t know that this was the best response in the broader context of the fact that you have been advocating and advocating creating a community where women and rape survivors feel comfortable in your space [in atheist spaces more broadly] and that you, as a result, have many survivors reading your work and you are responsible, to at least some reasonable degree, for their feelings and safety. Even if you are speaking out against rape apologia, which I don’t deny, such a graphic and hypothetically-framed argument might cause discomfort and alienation — HAS caused that, for some. This is not hypothetical.

    I would venture that the reason your Scenario B is going over so badly with some part of your commentariat is that, even though you’ve been careful to acknowledge that the hypothetical person in Scenario B did not feel threatened, most people (most women, let’s be real) who kiss back when they don’t want to kiss back do feel a social pressure significant enough that they feel threatened, whether the other party is actually expressing the threat verbally/physically or not (hence, Schrodinger’s rapist, etc., similar ideas). Thus, plenty of women, including me, feel the need to distinguish with Yes Means Yes and enthusiastic/real consent/verbal consent, encouraging the partner (male or female) to check/verify consent multiple times because consent is a process, yadda yadda. Yes, there are nuances between social pressure and threat of bodily harm, but it feels like the aura of threat created by social pressure is being somewhat minimized in order to facilitate the scenario’s existence because it [threat] can’t be tangibly qualified (and, again, legally, I agree it can’t, but social theory…): a celebrity has celebrity power and can easily ruin your reputation if you’re not a celebrity. I’m sure you’d say that’s awful but still distinguish it from rape.

    But what about if it was an employer and employee? A wealthy elite man and his maid (you know, like Arnold)? At what exact point does “social leverage” become itself a threat?

    Again, you can argue that none of that feminist idealism towards sex is law — and you’d be right — the reason we social theorist types rely on social theory for reframing our understanding of consent in feminist terms is because consent for sex has often been framed really weirdly since the dawn of civilization pretty much (not that I am telling you anything here, considering your knowledge of history), and sex is unique from, say, murder, in that if you have a dead body, the body is objectively dead, but only two people engaging in sex know if they want the sex or not. And I guess you can compare that to, I don’t know, selling a car and say the law still requires XYZ for the car to be considered sold and it becomes soing-so’s word against soing-so’s otherwise — but people don’t usually draw up fucking contracts, and I think there’s been a fair critique that comparing sexual transactions to property transactions or theft is alienating even if the comparison is meant towards some positive end.

    The reason I’m bringing up context here is because I think it’s really important. Yes, it’s your blog and you can run it as you want. But you, Richard Carrier, have been going around pointedly declaring the need for safer spaces for women in our movement. Many women in the movement are feminists who don’t agree with how rape is socially or legally configured in the current consciousness. Some of them, in the context of pages of social theory about what needs to change (whether in how atheists are viewed, or labor contracts, or feminist issues) or be viewed differently (pages that are friendly to feminist theory, and that work in tandem with it) are going to be alienated by diving into pure legalese and the argument that you’re just reciting legalese when most of us, most of your fellow bloggers, have already acknowledged that this whole matter will only be relegated to the court of public opinion to start with, and thus will never be touched by legalese anyway. Do you think it’s possible to be technically correct on some point [legal] while believing it can still be alienating to fixate on that point *in a certain time, situation, and context*? This is not a rhetorical or trolling question. I’m genuinely curious if that’s a sentiment you have ever shared, as an academic sort of person.

    Honestly, I know you get a lot of inane criticism (“fascist”) and what not — but I’m approaching my points in good faith. I’m not one of those people slinging shit. I can read just fine (though I allow there are points I might’ve missed — I don’t think I missed anything that would’ve overall changed my feeling here). It’s because of the good faith your prior actions inspired (all the A+ talks, plus sharing with me women’s blogging, plus taking up for people, including me, on the Shermer issue to begin with) and because I believe it is your intention to defend people against rape apologia, as you’ve said, that I DO want to have an honest and open communication. But I am really uncomfortable with the fact that when someone told you a lot of women were uncomfortable with the first post, you just responded by saying you hadn’t encountered that as if it was a negligible criticism and focused on the women you knew in your space — you very reasonably understand we women are not a borg, and there are many reasons people might feel uncomfortable saying something. And someone who is a rape survivor might just not want to sit and debate the nuances of rape [academic/legal/emotional/otherwise] in thread comments. So we have really no way to be sure, although I can anecdotally say I ran the original post by a friends circle of mine (some of whom do happen to be rape survivors, and knew this post was meant to take up for people like them) and some were very triggered by the overall thrust of the post and the replies.

    Actually, it occurs to me that most of the people you were arguing with in the first post had gender neutral names, so I have no idea if they were men/women/non-binary people. I got the sense most were male allies, but I might be wrong about that. You can’t read the minds of people who keep silent [fair enough], but I think you could’ve handled that better, when someone says “a bunch of women I know were upset by this,” than to frame it as though they were exaggerating or generalizing, which is how your reply came off to me (if I remember rightly, you did say “your generalization” in reply). Maybe it was not your intention, but the reply kind of felt dismissive.

    I think I do understand what you are trying to do. I just don’t really agree with points of the approach. And you have several times said your critics are saying the same thing you are, which makes me think this could be handled better than it is, unless you think each of these critics is misreading/misunderstanding everything/running on the emotionalism of the topic itself. Which strikes me as kind of bad faith, and so I hope that isn’t the case of your view of them.

    … I just saw Erin’s response once I finished typing this and I think it hit some of the major points I was trying to convey, orz.

    [And incidentally, the comments people here going on about how baaaaaad and shrewish the A+ community is are freaking horrible and really upsetting, though I see you are deflecting them, but, fucking really, people?]

    1. 21.1
      Richard Carrier

      Thank you for this comment. In answer to your questions…

      If you said this in the original post, I must have missed it, but the most reasonable conclusion I can arrive at here is that you were addressing potential perpetrators who you then were asking to place themselves in the scenario of the victimized person? For empathy’s sake, I assume?

      Yes–and more importantly so it would be clear what the victim was actually thinking and feeling, and what they actually experienced.

      Since that is where the harm is, that is what has to be described and understood.

      If perpetrators cannot understand (even just a little) what these things feel like, they will never understand why they are wrong.

      I tried to make the switch clear by offsetting these paragraphs and singling them out as separate from the main text (putting them indented in grey and with designations as scenarios), and then discussing them by referring to the harms thus described.

      We don’t know all the details, but we WERE building off a real incident and a real series of incidents.

      And Scenarios A and B are only examples of the furthest extremes (best case and worst case) of what could possibly be described by the limited description available. They were not exhaustive of all possibilities. That should have been obvious.

      And of course the conclusion is even if what happened is the best case scenario we can possibly imagine (given the truth of the real-world description supplied), and thus not rape by the definitions given, that even then it’s still reprehensible.

      I am even explicit in pointing out that I do not assume Scenario B is what happened (“even if what happened was Scenario B (and I am not even saying it was, only if it was), then he still took advantage of a woman and destroyed a human being’s happiness”). What happened could well have been Scenario A, or something in between (or something different but comparable to those).

      The rest of your commentary is apt as far as dealing with Scenarios I didn’t discuss (the issue of feeling threatened, for example).

      But we might disagree over certain assumptions in the issue of communications theory…

      Do you think it’s possible to be technically correct on some point [legal] while believing it can still be alienating to fixate on that point *in a certain time, situation, and context*?

      In my experience, nearing everything I ever write about anything is alienating to someone. So my concern is not whether it is, but whether it still needs to be said. If there are better ways to say it, I’m keen to learn how. But I do not accept the “it must never be said simply because it will alienate someone to say it” when there is an actual need for something to be said: such as a context in which many people were claiming Shermer is not a rapist therefore he did nothing wrong–which ignores the fact that even if he’s not a rapist, he may still have done something wrong, and if people don’t realize that, they might do those same things, not realizing or thinking they are wrong, simply because technically they aren’t rape (by whatever definition, legal or moral, they use–the definition is irrelevant to that question, since what “is” rape does not exhaust the entirety of what is wrong).

      Moreover, the reason I included trigger warnings was precisely because anyone who would be upset by these discussions is precisely the person who does not need to read them, and probably shouldn’t. If they went ahead and did anyway, and then got upset, there just isn’t much more I could have done to prevent that–other than educate no one, but if I thought that was the better approach, I wouldn’t blog at all.

      In the end, getting upset by what I said does not justify lying about what I said, or misrepresenting what I said so egregiously that it is characterized as exactly the opposite of what I said.

      All people have a responsibility to read carefully and accurately and get right any argument or statement they intend to criticize. Even people who are upset.

    2. 21.2
      WithinThisMind

      —I am even explicit in pointing out that I do not assume Scenario B is what happened (“even if what happened was Scenario B (and I am not even saying it was, only if it was), then he still took advantage of a woman and destroyed a human being’s happiness”)—

      What, exactly, is he ‘taking advantage of’ in scenario B, if not her diminished mental capacity and ability to say no due to the addition of alcohol?

      That would be why it’s rape.

    3. Richard Carrier

      You would know the answer to your question if you read my actual article. I quote the legal literature on exactly that point.

      But you continually refuse to look at it.

    4. 21.3
      CaitieCat, in no way a robot nosireebot

      Amber – I just wanted to say that your comment was really excellent, well-said, and covered pretty much everything I’d been thinking. Thanks for taking the time to write such a thorough and heartfelt comment.

    5. 21.4
      WithinThisMind

      Yes Richard, I read your article. You have not answered the question. You are still avoiding it. You are avoiding it because acknowledging it will mean acknowledging you are wrong.

      What, exactly is the perpetrator ‘taking advantage’ of? Those are your words, ‘taking advantage’. Taking advantage of what?

      You and I both know the answer is ‘the victim’s diminished capacity to consent’, but you are not going to admit that because admitting that means admitting that your scenario was, in fact, rape.

    6. Richard Carrier

      You are the one avoiding addressing anything I actually said.

      Even here, again, you ignore what I just said: diminished capacity is not a lack of capacity, and it is not the case that all sex under diminished capacity is rape, because consent is possible even when one is drunk. Otherwise every time I have drunken sex with my wife she is raping me…an absurdity entailed by what you keep saying, as I have pointed out more than once, and you keep ignoring me every time I do.

    7. 21.5
      Amber

      You’re welcome, and thanks in return [x2 for CatieCat and Richard].

      And:

      In my experience, nearing everything I ever write about anything is alienating to someone. So my concern is not whether it is, but whether it still needs to be said. If there are better ways to say it, I’m keen to learn how. But I do not accept the “it must never be said simply because it will alienate someone to say it” when there is an actual need for something to be said: such as a context in which many people were claiming Shermer is not a rapist therefore he did nothing wrong–which ignores the fact that even if he’s not a rapist, he may still have done something wrong, and if people don’t realize that, they might do those same things, not realizing or thinking they are wrong, simply because technically they aren’t rape

      Well, fair enough, regarding alienation v. importance of certain issues, but I’d still say several things here. First of all, and I’m fairly sure you don’t disagree with this, but I think the direction of criticism/alienation is significant. Alienating MRAs, for instance, is always a good time to be had (ha ha). Alienating douchefuck anti-A+ers who call you a fascist, also lawls. But if a post is written to take up for women and rape survivors and a good some women/survivors are becoming upset, I do think I’d weigh that reaction more heavily than the reactions of neutral parties or people who are probably already kind of against your views. Of course I’m not trying to suggest that it’s all-or-nothing here. Some women have said they were very gratified by the original post. But it also seems to me that a wide spectrum of people with pretty radically different views are also objecting, albeit from kind of ridiculously different angles. As you said, it’s “surreal” to see anti-SJ types and male allies and feminists disagreeing with the same post. Hell, you even had a bona fide radical feminist (not the MRA strawman thereof) replying to that original post [I recognize the phrase "sex class" as radical feminist parlance, and sure enough, her site was full of "transcritical" (eugh) and anti-porn posts]. I am sure if this were a less serious issue, the weirdness of MRAs and radfems taking umbrage to the same post would be sort of humourous.

      That brings me to the point of what you were trying to communicate. As I said before, I think I do understand what angle you were approaching this from, to a point. I mean, the fact of “just because something isn’t rape doesn’t mean it’s not awful” IS a point I understand in the abstract (or in a different context), and in fact, I think I was making a similar but ultimately different argument on your Facebook page.

      I was arguing with the people there that the sheer volume of reports about Shermer’s predatory habits suggests he is at LEAST creepy and heedless of boundaries, and I don’t think “creepy and heedless of boundaries” is as segregated from “rapist” as most of these people were suggesting. (You could make a Venn Diagram out of it. All sleazebags aren’t rapists, but pretty sure all or at least most rapists are sleazes. I mean, you don’t just rape someone and then act like a totally nice, upstanding citizen all the rest of the time. That defies credulity. So the repeated reports we received of Shermer being predatory is EXACTLY what we would expect if he’s a rapist.)

      But here’s where I’m sort of at a loss. With the people I saw yelling “slander!” and “libel!” etc. etc. in response to PZ’s original post, the issue, to me, seemed to be not so much that they were in debate as to the exact line of consent, but rather that they refused to believe the anonymous subjects without some kind of physical evidence (which is probably impossible for many reasons, and thus a deliberately impossible standard). I didn’t see anyone saying the issue was that they believed the subject had experienced *something* and they just weren’t sure if it was Really Rape; the issue seemed to be that they just straight up didn’t believe her and were outright calling PZ’s actions slander. So I’m not really sure what or whose argument you were really addressing with the delineations of the first post — although I allow I didn’t see all of the naysayers, of course. It’s just that the people arguing the lines of the issue, that I witnessed, seemed to be arguing a very different point of contention (namely that the subject was probably to be disregarded outright).

      [And the same disclaimer applies here -- not trying to argue in bad faith or ignoring details, etc. etc., if I am missing something, it's because there's A Lot Here and I keep having to glance back at the original post as it is. I AM probably forgetting or missing details, but it's not because I can't read and/or trying to be a douchebag.]

      There ARE numerous other issues I want to raise, but I am going to re-read again to make sure I crit carefully (the words), so I’ll add to this later. I just wanted to question the more basic issue of the approach/angle taken.

    8. Richard Carrier

      I didn’t see anyone saying the issue was that they believed the subject had experienced *something* and they just weren’t sure if it was Really Rape

      Actually, quite a lot of people did. They even did it in comments on that article, and I even engaged at length with one person who insisted their argument that it was just regretted sex was exactly like mine, even though I was arguing explicitly against such nonsense (and they repeatedly ignored my direct demonstrations of the difference in comments, so I eventually just gave up).

      There certainly also are people claiming the accusation was all made up. The first section of my article is for dismissing those people. The rest is for addressing those willing to admit something happened as described, but that it wasn’t really anything to get upset about (like that guy I argued with at length who kept saying it was just regretted sex and nothing all that bad).

    9. 21.6
      Amber

      Okay, I didn’t notice those people on the first go-’round, just more of the SLANDER! and LIBEL! people. At least I have more awareness of audience context now.

      And, yes, the whole “regretted sex” meme is pure MRA bullshit.

      I’m still thinking about framing-of-things (including my own) before adding much more… so, this comment is a little sparse.

      Except. Well. Random thoughts on booze/consent/predation and the aforementioned bullshit:

      As far as alcohol ["Otherwise every time I have drunken sex with my wife she is raping me"] — well, inebriation seems like a tricky subject in many ways. I don’t think every sexual encounter when somewhat inebriated is automatically rape. I’ve certainly consented when inebriated — though always with similarly inebriated people or people where there was a strong mutual attraction and we kindasorta figured we’d be doing something sexual before the night was over when we began drinking, whether we’d ever had sex before or not. And never with anyone with social power over me (celebrity pouring my drinks).

      There wasn’t any ambiguity, shall we say. (And I obviously never regretted it.)

      I like the person who commented that alcohol affects different people differently. I once actually passed out from the influence of alcohol. I can’t remember the events leading up to me passing out, but I know I woke up having moved some distance from the place where I fell asleep (I was out camping with my family, so in a very safe environment, but I shudder a little at the memory of waking up surrounded by onlookers who were worried about me). Apparently I had enough freaking motor skills to unzip my tent (!) and walk up the hill (to the public bathroom, so I must have known where I was going at the time), where I then fell down in front of the doors on the cement — even though I literally couldn’t, and can’t, remember doing any of those things. Which continues to be a really bizarre feeling. But even though my motor skills must have been functioning enough that I was up walking around (until I fell down, I suppose), despite me not remembering it, I obviously would’ve had zero capacity to consent to anything, let alone sex, in that state.

      Now I couldn’t see myself, but I imagine there’d be a real, obvious difference to any onlooker between me in the state I just described and Happy Tipsy Sex with Loved One (or acquaintance you’ve affirmed you want to have sex with, etc.). Predatory people, I think, rely on the idea that the two are ambiguous and easy to mix up when they really aren’t, hence the “regretted sex” bullshit meme that’s so popular.

      I do think the fact that a lot of women, including me, drink to feel comfortable with our bodies/sexuality is a symptom of patriarchal society being so sex/woman-negative, so I agree with whoever made that observation, although I obviously don’t fault myself or any woman who feels happier with her body when she drinks. And I think any predator damn well knows exactly where the consent line is and relies on the idea others will believe it’s ambiguous due to inebriation levels or other factors (basically what that Yes Means Yes article talks about), so I don’t take the actions of predators into account when thinking about tipsy consensual sex I’ve had with people or you/your wife, etc. After all I’ve seen, I have no trouble saying Shermer sounds straight-up Predatory.

    10. Richard Carrier

      Concur.

    11. 21.7
      Withinthismind (your logins just suck)

      What, exactly, are they ‘taking advantage’ of, if not the diminished capacity to say no due to the alcohol?

      The fact that you refuse to answer this very simple question alone proves that you are, in fact, well aware that your scenario B is fucked up and that you are attempting to dismiss an act of rape.

      —Otherwise every time I have drunken sex with my wife she is raping me…an absurdity entailed by what you keep saying, as I have pointed out more than once, and you keep ignoring me every time I do.—

      Did you forget about your entire prior relationship with your wife when pulling that analogy out of your ass? A prior relationship exists with boundaries already understood. That was not the case in your scenario B. That’s like ‘well my wife doesn’t mind when I grab her tits as I walk past’ as a defense for why you groped a stranger on the subway. It’s bullshit, Richard, and whats more, you know its bullshit so I don’t understand what motivated you to offer it as an argument in the first place. It is as pathetic as the ‘well I have a black friend and they think I’m funny’ defense.

    12. Richard Carrier

      One more time, with feeling:

      The phrase is “taking advantage of her,” her being a pronoun that represents a person, not a capacity. As I’ve remarked elsewhere already.

      And here I will assume you didn’t just argue that I get to rape my wife because I have a prior relationship with her.

    13. 21.8
      WithinThisMind

      —And here I will assume you didn’t just argue that I get to rape my wife because I have a prior relationship with her.—

      Nice strawman. Care to address what I actually said at any point?

      —-“taking advantage of her,”—

      Yes, I KNOW. Now will you please answer the question – What ADVANTAGE is being taken? Why does the alcohol provide an ADVANTAGE? How is advantage being taken of her due to the addition of alcohol to the mix?

      Are you going to answer the question, or are you going to continue threatening to ban me for pointing out you haven’t answered the question?

    14. Richard Carrier

      Why does intelligence provide an advantage? Or money? Or handsomeness? Does the fact that they do constitute rape?

      You just aren’t asking any intelligible question here.

      You are simply ignoring what I’ve said, and are now no longer even stating arguments.

    15. 21.9
      WithinThisMind

      Pretending to not understand the question is a cheap cop-out trick, and you know it.

      Again, you said ‘take advantage’. What is the advantage afforded by the consumption of liquor in the scenario offered? Don’t play dumb, Richard. Answer the question.

      How does the alcohol provide an ‘advantage’?

      Stop being dishonest and actually answer the question.

      If your argument was sound, the question would be easy to answer. The fact that you’ve written so many excuses for not answering the question should be your wakeup call that maybe, just maybe, you are wrong.

      You are not an ally, Richard. You are a rape enabler.

    16. Richard Carrier

      Only in your delusional world, which exists solely in your head and doesn’t respond to reality or even sense.

      Taking advantage of someone is not rape. A Venn diagram would show an overlap between those two categories but not an equivalency. If you cannot grasp that, then you are fantastically incapable of logical reasoning.

  22. 22
    Jackie, all dressed in black

    Richard, I didn’t read the first post and I didn’t finish this one. I’m very uncomfortable with how you are discussing this. Myth? Lore? Really?

    I hope this doesn’t sound like I’m blasting you. I am sincerely puzzled over what I have read of this post. It may not be fair to comment without reading it in it’s entirety (or the comments on other blog networks), but I’ve had a bit of a hard day, so I’m stopping when I think I should. I apologize for any muddling that causes. It isn’t intentional.

    Shooting a machine gun into an empty house is supposed to be analogous to forcing your dick into someone who doesn’t want it there…??? I just …can’t…no.

    I know you mean well. I know that I skipped most of this post and all of the last one. But this is where I stopped reading:

    And if I say it is unfair to call someone a murderer because they never actually killed anyone, only injured them, and that therefore they should be condemned for what they actually did instead (which is still awful), that does not make me a “murder apologist.”

    Let’s make that about rape.

    And if I say it is unfair to call someone a rapist because they never actually raped anyone, only had sex with them that the person did not want to have/ continue having/ could not consent to, and that therefore they should be condemned for what they actually did instead (which is still awful), that does not make me a “rape apologist.”

    If you are arguing that getting an arrest or conviction would be close to impossible, sure. That’s true of all rapes. No argument there. But being able to get away your crime does not mean no crime was committed. IMO, George Zimmerman is a murderer and Trayvon Martian was still murdered.

    You know I’ve had friends weep openly, tell men they are hurting them, but not say “No” because they didn’t want to get hurt worse. (Sometimes when you’ve fought one rapist, you learn it’s better not to fight. That pisses them off.) The guys who continued to go at them while they cried were not confused. They did not think the woman was consenting. They thought, rightly, that they could do what they wanted and get away with it. When I think of what those men did to my friends, I don;t think, “Oh, he’s not really a rapist, because she laid there crying and he drove her home when he was done.” I think of this line from Thelma and Louise:

    “Sounds like you got a real fucked up idea of fun. …In the future, when a woman’s crying like that, she isn’t having any fun!”

    One of those rapists gave my friend a disease that has caused her so much pain that she cannot wear jeans or ride a bike. That was years ago. She’s still suffering. She still has PTSD from the various kinds of abuse she lived through. She is still afraid to have a facebook account, because she’s afraid he will find her and hurt her again. Her future relationships were effected. She almost lost the ability to have kids. Are you saying that he didn’t rape her, she merely regretted the sex as it happened? Is it her fault for not saying “No”. Because the funny thing is, that guy turned out to be a serial date rapist and stalker. One woman only got away because his roommate came home early and found him wrestling her to the floor.(Apparently saying “No” would not have saved my friend.)

    Richard, how often does marital rape or date rape occur without a woman saying “No”. Do you know what happens to a woman with an abusive partner when she says “No”? These things happen as ongoing abuse. Some women just stop thinking they can say, “No”.

    What about the boss who threatens to fire a woman if she does not have sex with him? Is that consensual sex? If not, what do you call it? There is no “rape light”.

    Sex under duress, under the influence of chemicals, etc. is rape. How people “feel” about it is exactly the point. What else is consent? Is it not whether or not a person enthusiastically wants to have that sex? How can a person’s “feelings” not be a factor?

    So, while you may be talking about an entirely different hypothetical scenario, I wonder how often you think that scenario happens in real life, rather than rapists using “She/he just regrets it” as cover for violating another person?

    I think if there is just a communication break down, that’s where it is. It is between your hypothetical and other people’s real lives.

    I hope you don’t take disagreement as dislike or disrespect. I know you don’t agree that there was any rape apology in what you wrote. Those that do agree are not suggesting that you purposefully engaged in rape apology, just as I’m sure you would not suggest that they were purposefully being unfair by thinking you did so regardless of intent.

    1. 22.1
      Richard Carrier

      Shooting a machine gun into an empty house is supposed to be analogous to forcing your dick into someone who doesn’t want it there…???

      I’m stopping there. That is not what I said.

      And since you admit you aren’t reading what I actually said, I’m not reading what you said either.

      A conversation requires good faith on both sides, a real attempt to understand what you are responding to. You aren’t doing that.

  23. 23
    Jackie, all dressed in black

    Richard,

    If perpetrators cannot understand (even just a little) what these things feel like, they will never understand why they are wrong.

    Do you really think they don’t know they are doing harm? Do you not think that that is exactly part of the thrill for these people? I really don’t think that’s the issue.

    Do you think murderers murder because they don’t know death is a downer or being stabbed is painful?

    1. 23.1
      Richard Carrier

      Do you really think they don’t know they are doing harm?

      Many don’t. Or don’t know the actual scale of harm they are causing. This is actually a very common source of moral evil: people not recognizing or thinking about the actual harm their decisions cause. This is why people jump enthusiastically into war and terrify women going to abortion clinics, because they actually think they are doing right, and are unaware of the real scale and balance of harm their decisions and actions are producing. And yes, many a murderer thinks they are doing the right thing, and doesn’t think about the actual harm their actions cause (or has a grossly inaccurate understanding of it). Whereas, what makes people stop doing harm is realizing the harm they are causing. This is true for every harm you have stopped yourself from. It’s true of every harm anyone ever willingly stops themselves from causing. Understanding the consequences of what you do is the beginning of all sound moral knowledge.

      Certainly, if we were talking about sociopaths, then we’d be in a different situation. But no one is accusing Michael Shermer of being a sociopath. Nor are all people who rape or exploit women sociopaths. Moral error is a thing. Not all evil is a product of malevolent villains with waxed moustaches.

  24. 24
    Sophia

    It’s kinda blowing my mind that people think that drinking any alcohol whatsoever makes it impossible for one to consent to sex. Or that having doubts about having sex while having sex without indicating those thoughts whatsoever makes the partner guilty of rape.

    Or they didn’t understand what you wrote.

    I can absolutely see how someone could be put off by the distant, logical tone of the post…but it was literally the exact opposite of rape apologetics.

    Really I was far more put off by your dismissal of the seriousness of cheating on a partner in a monogamous relationship. That’s just silly.

    1. 24.1
      WithinThisMind

      —It’s kinda blowing my mind that people think that drinking any alcohol whatsoever makes it impossible for one to consent to sex—

      This is a strawman. This is not what anyone is objecting to.

      What, exactly, do you think the person ‘taking advantage’ is ‘taking advantage of’?

    2. Richard Carrier

      Taking advantage of someone is not raping them. It can be, but they are not synonyms.

      And you have indeed repeatedly said that drinking any alcohol whatsoever makes it impossible for one to consent to sex.

      Why you attempt now to deny it I don’t know.

    3. 24.2
      Withinthismind (your logins just suck)

      —And you have indeed repeatedly said that drinking any alcohol whatsoever makes it impossible for one to consent to sex.—

      Is your argument really so weak that now you must resort to lies?

    4. Richard Carrier

      It’s the other way around. Is your argument really so weak that you won’t even admit what you actually argued?

    5. 24.3
      WithinThisMind

      —It’s the other way around. Is your argument really so weak that you won’t even admit what you actually argued?—

      So quote me arguing it. Go on. Quote me. Cite exactly where I said ‘drinking any alcohol whatsoever makes it impossible for one to consent to sex’.

      What I have said, repeatedly, is that a person who ‘takes advantage’ of someone else’s diminished capacity due to alcohol consumption is a rapist. You obviously disagree, as apparently you think putting someone in a position where they can’t say no and pulling out the ‘absence of a no = yes’ bullshit makes them not a rapist.

      Calling it ‘taking advantage’ doesn’t make it any less rape than saying ‘he ‘arranged sex’ with a minor’. It’s weasel words, nothing more.

      How does the alcohol provide an ‘advantage’, Richard?

      Why won’t you answer that simple question?

    6. Richard Carrier

      a person who ‘takes advantage’ of someone else’s diminished capacity due to alcohol consumption is a rapist.

      No, they aren’t. They could be, but it depends on how diminished their capacity is. And this has been explained to you multiple times in multiple ways by multiple people here. And you simply refuse to listen or even address anything anyone says to you.

      If you are going to ignore us (as you consistently have been), it’s time for us to ignore you.

  25. 25
    EllenBeth Wachs

    Thanks for your opinion. My mistake for even trying with you.

  26. 26
    welp

    I love how you’re getting attacked both by knee-jerk anti-’social justice’ people and the dreaded ‘social justice warriors’ lately. It seems like some of the people who found this post agreeable but not the Shermer post one as well, didn’t read your Shermer post carefully and the people who have been calling you a rape apologist for both posts aren’t reasonable about this and can’t reasonably argue their position whatsoever. If your main arguments are “you’re splainin’” and “you’re being too reasonable about an issue that affects me emotionally,” you’ve got no case.

    “Oh no, he didn’t call something ‘rape’ even though I and my friends totally think it is. Even though he said it was still reprehensible and sleazy behavior, he must be a ‘rape apologist’ who completely lacks empathy for abused women.”

    This Anna Mardoll person who’s been mentioned in the recent posts is misreading your new post so badly that she thinks you’re comparing women to houses now… I admire your patience (and commitment; what is it, 11k+ words now?) here.

    Amber said: “And you have several times said your critics are saying the same thing you are, which makes me think this could be handled better than it is, unless you think each of these critics is misreading/misunderstanding everything/running on the emotionalism of the topic itself. Which strikes me as kind of bad faith, and so I hope that isn’t the case of your view of them”

    Well, some of the particular critics you’re referring to, obviously did misread/misunderstood and savaged Carrier for slight differences of opinions in certain formulations. Now, *that* is bad faith.

  27. 27
    Kaethe

    “Sexual assault” is the broad, widely-understood term for a range of crimes, which may be discussed by people as “rape” regardless of the specific laws applicable in specific situations. Instead of using the common terms (either of them), you came up with “morally rape”, and made a big point of distinguishing it from “legally rape”. I don’t understand why. It sounds like a phrase designed to minimize the accusation, to minimize the severity of the crime. I think it’s this phrase that explains in part why readers thought you sounded like an apologist.

    The other problem is this:

    You didn’t give him any signal you wanted to fool around, and this isn’t anything you wanted before, but once he just suddenly started, even from his first kiss you respond in kind. You aren’t thinking straight, or thinking at all, but it’s exciting and you participate enthusiastically. But in the midst of it you start to feel it’s wrong. He didn’t ask you. There was no lead up to test your boundaries or pauses to determine your desires. He just did it. You’re ashamed and don’t think you would have done this if you’d been given a chance to think about it.

    There is a focus on the Ifeelings of the non-celebrity, but the celebrity’s actions continue regardless of “you” . When you write “This is not rape” you are factually incorrect. “He didn’t ask you.” “He just did it.” If those are the literal truth of your hypothetical scenario, then that is rape, because the celebrity did not elicit consent. Whatever “it” is, it is something that he did to the victim, not something he did with her (or him?), and it would meet the legal definition of rape from the FBI, as of January 1, 2013. Not everyone would agree that it is rape, sure, because you’ve set it up where the victim was participating enthusiastically and suddenly out of nowhere it feels “wrong” and there’s no clear withdrawal of consent and then it’s over and there’s shame. That part sounds a lot like the common rape apologist position that women wake up the next morning feeling shame and regret and decide to call what happened “rape.”

    1. 27.1
      Richard Carrier

      First, when I explicitly used my distinctions to explain why Shermer (if the accusation against him is true) cannot be let off the hook with the use of such distinctions, when that is in fact the entire thesis of the article, explicitly stated throughout, it is absurd to claim that it “seems” like I “designed” it to “minimize” anything. I am doing quite the opposite: I am attacking those who are trying to minimize it with such tactics.

      Second, you are not using any definition of rape used commonly anywhere. Not in the law, certainly. Nor as I defined it, as simply sex without consent. You seem to think nonverbal communication is incapable of producing consent, yet if you really believed that, much of your life you are violating people’s consent by accepting their nonverbal communication of it rather than waiting for an explicit verbal statement.

      The law has this right: you do not need to say a specific word to grant and indicate consent. And in Scenario B, the victim not only communicates consent (nonverbally, as accepted in the law and rightly so), they are explicitly described as consenting (at first). Thus, you simply cannot pretend that Scenario B described rape–unless you are defining rape in some strange way that most people don’t use the word to indicate. Which begs the question of why you want to do that.

      Third, there is no “waking up the next morning” in Scenario B. So don’t try rewriting what I said.

      The question of whether something is rape is not a function of what a victim thinks happened. It is a function of what actually happened. If you cannot acknowledge that, then you are advocating a dangerous and unjust world wherein you can be convicted not for what you did, but for what someone just thinks you did. So you have to be ready to accept that a victim can in principle be wrong about what to call what happened. That is not rape apologetics. It’s reality.

      What is also reality is that what the victim in this case means actually happened could be Scenario A. Exactly as I said. Or something near enough to A that we aren’t talking about Scenario B. Scenario B is simply nothing more than the very least that could have possibly happened to evoke the description of it given. It is not the sum of what could have possibly happened to evoke that description. That is why I said it could mean A–the other furthest extreme. Or anything in between.

      For you to obsess on ignoring what I actually said, is exactly the folly I am calling out here.

  28. 28
    EnlightenmentLiberal

    Richard: A very clear and cogent article. I appreciate this and your other legal writings very much, and learned a lot from them. Thank you.

  29. 29
    abear

    Submor wrote @20.4:

    “It is clearly possible for a person to be raping someone without knowing it is rape. In the most charitable interpretation possible, this descriptor can apply to scenario B. Even if the sex began consensually, as soon as the victim decided they were uncomfortable with having that sex, it became rape, regardless of whether or not it should be criminally prosecutable (which is a secondary and irrelevant consideration to this point). Yes, that means the perpetrator may not have known their victim wanted them to stop, but that doesn’t make it not rape.”

    According to the legal definition it is not rape.

    According to the dictionary definition, if consent is not revoked or otherwise shown to be revoked it would not be rape.

    According to your personal definition of rape, would it still be rape if the “victim” consented and had no apparent objection to the act until the next day, and then regretted it, deciding to retroactively withdraw consent?

    If the definition of words is simply a matter of opinion would it be acceptable for me to expand the definition of genocidal maniac to include anyone that moderates a social justice forum and then publicly call them that?

  30. 30
    antialiasis

    Well, none of this addresses my beef with what you wrote, so let’s try this again.

    To start with, I quite sincerely know what you were trying to communicate was not rape apologetics. I do not think you are a rape apologist; I think you made some critical mistakes in how you wrote your post, to the point where it was viscerally upsetting, and that’s what lies behind at least a significant portion of the vitriol you’re getting.

    Firstly, there is a significant gap between what you were apparently trying to write in scenario B and what it seems to come across as, to me and (apparently) many other women. You’ve stated you intended to portray consensual sex. It did not read like consensual sex to me – not because I thought it was scenario C or D or E, but because I thought it was only insignificantly different from your scenario A (specifically, I did not feel like the woman was significantly less drunk). Surely, setting aside for a moment that you don’t believe that’s what you wrote, you can see how someone who reads scenario B as “scenario A, but the horribly drunk woman kisses back before she has the chance to remember that she didn’t ask for this” would be rather uncomfortable with that part of your article, yes?

    I would venture to suggest that, since quite a lot of people reacted badly to your assertion that scenario B isn’t rape, there is something wrong with the way you wrote out scenario B: something that is not actually communicating the scenario you’re imagining in your own head, but a different scenario far more similar to scenario A. Pointing to words in scenario B to “prove” that actually she’s not that drunk does not change the fact that a significant number of people do appear to read her as too drunk for informed consent. If a lot of people are taking entirely the wrong impression away from your writing, you should probably at least look into whether your writing could have been clearer – which isn’t to say the fault is always and invariably the writer’s, just that it quite possibly may be.

    In particular, again, you write that she is “struggling to concentrate on” where the man is taking her, which I would naturally interpret as “can’t remember where the man is taking her, and is trying to concentrate so that she can remember, but is so drunk she struggles with even that”. According to your response to me on the original post, you meant that she’s aware where he’s taking her, she just can’t quite concentrate on it (although then why is she trying to concentrate on it?). And sure, I believe you if you say that’s what you intended. But I really don’t think it’s far-fetched to read it as I did, and you must see that this seemingly reasonable reading of it significantly changes the level of inebriation the scenario appears to portray, and thus her perceived ability to consent. When such an apparently monstrously wrong reading of your text is not just possible but pretty straightforward, you should probably try to fix the text.

    Secondly, and separately, I found it in very bad taste to speculate that a real-life woman in a real-life scenario who explicitly said she was unable to consent, exact quote, may actually have been only mildly inebriated and participated enthusiastically before changing her mind. Several people here are uncomfortable with making a thought experiment out of it at all; I would accept it if it were entertained purely as a hypothetical unrelated to the Shermer case or presented as a counter to a hypothetical someone who doesn’t believe the victim, but by insisting that what you apparently meant to be a consensual scenario is compatible with her real-life testimony that she “could not consent”, you appear to be discrediting her words for no good reason, which you can hopefully see why I don’t consider very helpful in the cause against rape apologetics.

    1. 30.1
      Richard Carrier

      Notice how you are already distorting what I wrote.

      You say:

      “but the horribly drunk woman kisses back before she has the chance”

      I actually said:

      “even from his first kiss you respond in kind. You aren’t thinking straight, or thinking at all, but it’s exciting and you participate enthusiastically.”

      Notice how your wording completely changes the scenario–in your version, all she does is kiss back and then rethinks everything. That is simply not what I wrote happened in Scenario B. Yet you have to rewrite it to get your indignation. Why rewrite what I wrote into something I didn’t write, and then get indignant at what I didn’t write?

      The rest of what you say likewise adds to my scenario things I didn’t write. Why do that? And then attack me for what you added to the story?

      You need to take a long hard look at yourself and what you are doing here. You don’t even seem to notice you are doing it. And that’s a problem you need to check.

      I found it in very bad taste to speculate that a real-life woman in a real-life scenario who explicitly said she was unable to consent…

      You should not want to try shutting down discourse and education to understand what sorts of things happen in the world and how we should think about them on the grounds that someone thinks doing it is “in bad taste.”

      What is actually in bad taste is ignoring that I said Scenario B isn’t what I am saying happened (I explicitly wrote that I am not saying it is what happened…no seriously, the exact words: “even if what happened was Scenario B (and I am not even saying it was, only if it was), then he still took advantage of a woman and destroyed a human being’s happiness”), and ignoring the fact that I said what happened could be Scenario A…in fact I wrote (literally) over ten times more words on Scenario A…all to make it seem like I never said either. And then attacking me for saying neither. That is what I find distasteful.

      You have a responsibility to pay attention to any article you criticize, and to actually notice what it actually says.

  31. 31
    Doug Blinkhorn

    WithinThisMind wrote: “The fact of the matter is, consent requires sound mind.”

    Just to pick your brain on exactly what your thinking is on this, a few exploratory questions: how exactly is one to define AND determine ‘sound mind’ in a situation where such knowledge is important (like a possible sexual encounter)? Would being emotionally distraught and giving consent actually nullify that consent since it may be compromised? Would the person who accepted the consent as permission be a rapist, even if they were unaware of the internal emotional state of the other person? There are also many mental disorders which aren’t immediately and obviously noticeable from a cursory, outward observation in a casual encounter, yet still compromise consent, even if explicitly given. Would the person accepting this consent as permission be considered guilty of rape? Should a professional psychological examination be performed before each sexual encounter to ensure each participant is of sound mind?

    How much alcohol (or any drug) does it take before someone can no longer be considered capable of making sound decisions? Can two people who have had one drink each not be considered capable of making sound decisions? Should the consumption of any mind-altering drug in any amount immediately and automatically disqualify the possibility of consenting sexual activity? In my opinion, there is no objective and obvious limit line where, after that point, a person is no longer capable of giving uncompromised consent, rather it lies on a gradual continuum whereby the ‘soundness of mind’ is gradually diminished. I’m NOT arguing that there aren’t obvious (and even borderline) cases where a person is not able to make sound decisions about giving consent, and I agree that in these cases, even explicit consent is NOT a green light to proceed with sexual activity. I also agree that in cases where one might even have a slight suspicion that the other person is possibly not of sound mind, that one should err on the side of avoiding sexual activity altogether, even when consent is granted.

    The problem is that people’s fallible judgement is necessitated in all of these scenarios, making clear and quantifiable boundaries and lines difficult if not impossible to determine in a systematically accurate way. I acknowledge that this ambiguity is often used as as ‘safe-haven’ for malicious people who were all-along intent on taking advantage of someone else in a sexual way. However, I don’t see that this unfortunate fact in any way changes the inherent ambiguity of the situation in many cases.

    1. 31.1
      Withinthismind (your logins just suck)

      Here we are, yet another person asking ‘well, what if it was a reaaaaaally short skirt, would it be okay to grab her ass then?’ with a healthy dose of ‘shouldn’t have to get the papers signed in triplicate to buy a girl a drink’ bullshit.

      Thank you for using the very real trauma 1 in 4 women experience in their lifetime as masturbation fuel for your thought experiment.

      If someone is not in their right mind and you take advantage of that, then you are a piece of shit. If your doing so involved a sexual act, then you are a rapist. What about that is so hard for you to grasp?

      And more importantly, why are you pretending the taking advantage is fucking accidental? Look at Shermer, deliberately feeding his victims alcohol in a way that made it hard for his victims to realize how much they had consumed. Why are you going to such lengths to defend this predatory behavior? Why are you pretending it is something other than predatory?

      Look at the scenario – it wasn’t ‘shit, I didn’t realize she was drunk’ offered as an excuse, it’s ‘gee, well, she didn’t say no’. The very scenario Richard pulled out of his ass makes your defenses bullshit and your questions just trying to invent a gray area that doesn’t actually exist.

      Why are you putting so much effort into trying to blur the lines between what is and is not rape?

      If you are someone who is actually confused about the questions you are asking, then yes, I do highly recommend that you get all consent forms filled out in triplicate in the presence of an attorney after having a psychiatric evaluation. Or better yet, just don’t leave your house, because you clearly aren’t fit to interact with decent society.

  32. 32
    Daniel Copeland

    You are at least partially mistaken with regard to the necessity of actus reus. The actus reus need not be completed for a crime to have occurred. If you fire a gun at someone, and they don’t die, you are still guilty of attempted murder. There is a difference, but that difference is no credit to you. You are still a murderer, albeit a failed one.

    Now let’s look at your Scenario B.
    “Your conversation is so animated, in fact, his focus on you so engaging, that you don’t even notice that he keeps filling your wine glass…”
    “He shows concern, and offers to take you to your room…”
    He gets you to the bed and your head is swimming. You crack wise about how drunk you are. Then without warning he starts kissing and fondling you, then undressing you, then…everything else. You didn’t give him any signal you wanted to fool around, and this isn’t anything you wanted before…”
    We are not talking here about two people meeting in a bar or at a party and both being too drunk to realize how drunk the other is. We are not even talking about some young schmuck actively fooling himself that the person he’s hitting on is meaningfully welcoming his advances when in fact she’s too intoxicated to do so. (And of those I would consider only the first to be genuinely borderline). We are talking about one person knowingly and deliberately drugging another with the intention of altering their readiness to have intercourse. The actus reus of sexual assault begins at the moment that “without warning he starts kissing and fondling you”.
    Now as it happens, “even from his first kiss you respond in kind. You aren’t thinking straight, or thinking at all, but it’s exciting and you participate enthusiastically”. But then, “in the midst of it you start to feel it’s wrong. He didn’t ask you. There was no lead up to test your boundaries or pauses to determine your desires.” That being the case, it’s hard to see how things would have gone differently if “you” hadn’t found it “exciting”. If I were a juror on that trial, I would have to say that the defendant’s behaviour — first actively drugging the victim and then proceeding to intercourse without seeking consent — provides clear evidence that he was reckless as to whether the victim consented or did not consent. And recklessness, like knowledge and intention, is sufficient for mens rea. In other words, I see no difference between your Scenarios B and D. You say the difference is that in D, “the perpetrator intended to commit rape (or genuinely didn’t care if they committed rape)”. But I cannot see how someone who genuinely did care whether they committed rape, could deliberately drug someone and then start having intercourse with them without seeking their consent.
    Since the mens rea is that of rape, and the actus reus of rape has been initiated, and the effect on the victim after the fact is that she feels she has been violated and deprived of consent, which is the same as the effect of rape, it’s starting to look seriously hair-splitting to say that what’s happened here isn’t rape.
    In case you’re about to ask, I have seen your assertions that consent has to be actively withdrawn or it still counts as consent. I disagree. I can imagine analogous, non-sexual, situations in which the perpetrator could reasonably believe consent continued merely because the victim hadn’t withdrawn it, but sexual intercourse involves two people, in very close proximity, focusing their entire attention upon one another. I would argue that in that circumstance one has a responsibility to closely monitor one’s partner’s willingness to continue, and stop the moment it appears compromised.

    1. 32.1
      Richard Carrier

      You are at least partially mistaken with regard to the necessity of actus reus. The actus reus need not be completed for a crime to have occurred. If you fire a gun at someone, and they don’t die, you are still guilty of attempted murder. There is a difference, but that difference is no credit to you. You are still a murderer, albeit a failed one.

      I don’t know what you mean. You cannot mean this as a statement of legal theory. The actus reus in that case would be attempted murder, not murder, and thus is indeed there, and has to be there for you to have committed the crime (of attempted murder). There is no actual objective sense in which an attempted murderer is a murderer.

      I can only assume, being as charitable as I can be, that you mean someone who is guilty of attempted murder can be considered as equivalent to a murderer in the sense that they are a person willing to resort to murder. But that has nothing to do with actus reus, so I don’t see the connection between discussing the tendencies of a person’s character, and the role of actus reus in establishing what has actually been done.

      Certainly, if we assume we are talking about an attempted rapist (e.g. Scenario D), then it would be fair to say that the perpetrator in that case “is a rapist” in the sense that they are a person willing to resort to rape and who even looks for opportunities to rape. But that’s a rather loose use of the term, when people can easily confuse it as an accusation that they have already committed rape. We do not jail people for potentially committing crimes. We only jail them for the actual crimes they have committed. We can judge their character for potentially committing crimes, but that’s a wholly different question, and not one relevant here.

      I never discussed Scenario D in my original article nor alleged or hypothesized that Shermer was attempting a rape. Maybe he was. But whether he was is not relevant to what I did discuss. Indeed my whole argument, extrapolated to this new tack you have proposed, was that it doesn’t matter what he was attempting, in order to conclude women should nevertheless be wary of him and warned off him…if the accusation so far stated against him is true.

      Now let’s look at your Scenario B.

      All you do after this remark is make stuff up and add it to what I wrote, thereby ending up with not my Scenario B, but what I (in the article now here above) identified as Scenario D.

      You are thus repeating the same mistake the article you are here commenting on calls out: rewriting what I wrote and judging me for saying something I didn’t.

      Case in point:

      In case you’re about to ask, I have seen your assertions that consent has to be actively withdrawn or it still counts as consent. I disagree. I can imagine analogous, non-sexual, situations in which the perpetrator could reasonably believe consent continued merely because the victim hadn’t withdrawn it, but sexual intercourse involves two people, in very close proximity, focusing their entire attention upon one another. I would argue that in that circumstance one has a responsibility to closely monitor one’s partner’s willingness to continue, and stop the moment it appears compromised.

      Why do you assume he didn’t? There is no reference in Scenario B to his failing to do that. So again, you are here “inventing” things not in that scenario, and then accusing me of including them.

      You really need to stop doing this. Because if you are doing this here, you probably do it a lot. And that means you are not grasping correctly what a lot of people are saying about everything else in your life. You are instead mapping onto them things you want them to have said or assume them to have said, but which they didn’t, and then concluding they said that.

      Bad idea.

      And a bad way to live.

    2. 32.2
      Daniel Copeland
      You are at least partially mistaken with regard to the necessity of actus reus. The actus reus need not be completed for a crime to have occurred. If you fire a gun at someone, and they don’t die, you are still guilty of attempted murder. There is a difference, but that difference is no credit to you. You are still a murderer, albeit a failed one.

      I don’t know what you mean. You cannot mean this as a statement of legal theory. The actus reus in that case would be attempted murder, not murder, and thus is indeed there, and has to be there for you to have committed the crime (of attempted murder). There is no actual objective sense in which an attempted murderer is a murderer.

      Let me try to restate that, with emphasis to make it clearer what I meant.

      The actus reus of the crime for which you have mens rea need not be completed for a crime to have occurred — obviously, you need to have done something. If you fire a gun at someone, and they don’t die, a crime has occurred, even though it was not the crime you intended should occur (to wit, it is attempted murder rather than murder). Firing the gun is the actus reus; the trajectory of the bullet afterwards is critical to the outcome, but not to the nature of the act. We categorize that trajectory as part of the actus reus (the “completion” of it, in my earlier formulation) because it would be nonsensical to put it in the mens rea. We have attempt laws precisely so that we can penalize people who set forth to bring about unacceptable outcomes, such as the death of innocents or sexual acts with non-consenting parties, whether or not said outcomes actually occur. Now, stop me if I put any words into your mouth that you didn’t say, but I distinctly remember reading this somewhere:

      And regardless of the legal definition, anyone who sexually penetrates another without their honest consent is a rapist, by every moral standard we atheists have been applying to the Bible, and antebellum Christian slavery, and fundamentalist Mormon polygamy, and the scandals of the Catholic Church.

      which, to me, indicated that you were discussing moral philosophy with reference to legal theory, rather than vice versa. Morality is concerned with prescribing future actions from the point of view of the individual, whereas law is concerned with penalizing past ones from the point of view of society (as vested in the State). External consequences are the stuff of law; decisions, intentions, purposes are the stuff of morality. The law, looking in from outside, quite rightly gives people the benefit of every doubt as to their true intentions, and moderates its penalties according to outcome. Morality, being internal to the individual, is not bound by legal rules of evidence as to that individual’s state of mind, since the individual knows their own mind beyond what the state ever can; conversely, anything that happens outside of the individual’s control — the trajectory of a bullet, for instance — is outside its purview.

      We do not jail people for potentially committing crimes. We only jail them for the actual crimes they have committed. We can judge their character for potentially committing crimes, but that’s a wholly different question, and not one relevant here.

      But we do jail people for attempting crimes. And if mens rea is present, and every part of actus reus is present except for something outside of the defendant’s control, then that’s an attempt. We may impose a lesser penalty than for the full offence, but that’s a legal matter and does not alter their moral status as one who has committed a wrongful act.

      Now, I took care, in what followed, not to include anything I hadn’t inferred from your scenarios. Evidently I did not take sufficient care to communicate this. Let me, therefore, make my inferences explicit.

      He keeps filling your wine glass.” The victim’s intoxication is not an incidental circumstance which the perpetrator happens upon and chooses to exploit; it is a circumstance which he deliberately arranges. It occurs to me that my use of the verb “drugging” might have been taken to indicate that he had slipped something besides alcohol into the drink, which was not my meaning. Alcohol is a drug, and is here being intentionally administered with the purpose of altering the victim’s state of mind.

      Granted, the victim drinks it voluntarily; she is not being assaulted at this point. But Scenario B specifies that “you don’t even notice“.him doing it. This element of the scenario relies, for its plausibility, on the fact that alcohol has that kind of effect on the brain. We would not accept a scenario in which person 1 did not notice that person 2 kept buying them coffee. But from this, it follows that her control over her consumption of alcohol is progressively deteriorating due to the alcohol itself.

      Scenario B specifies that she is too drunk to see straight or walk without losing her balance. She is not in control of her drinking; he is. He’s getting her drunk. With what purpose? When they get to her room, he has intercourse with her. I see nothing in the scenario to indicate that he has lost any of his control over his actions, and consequently infer that that was his purpose all along.

      Why am I harping on this detail? (Again to forestall misunderstanding, the scenario would still have been rape if the perpetrator had merely found her drunk rather than getting her drunk, and proceeded from there.) Two reasons: first, there is here no sliver of doubt whether he appreciates how drunk she is; second, if you want meaningful consent from someone, getting them drunk first is a mind-bogglingly misguided way to go about it, because of the aforementioned effects of alcohol on one’s self-control. (For the moment I am proceeding on the assumption that you are not a rape apologist, and agree with me that, morally, consent to sex must be meaningful.)

      Were I a juror, I would not now be entertaining reasonable doubt. He intended to get her drunk, and got her drunk. He intended to have intercourse with her, and had intercourse with her. This is not someone who is mind-bogglingly misguided as to the limits of human self-control and the effects of alcohol thereupon. It is therefore purely for the sake of argument that I suppose he might, hypothetically, be genuinely unaware that people who are too drunk to walk straight are also too drunk to meaningfully consent to sex. However, that hypothesis, however implausible, is testable. The couple are strangers to one another; they have no pre-existing arrangement with safe-words, or whatever it might be, that allow them to act out dominance/submission fantasies. Therefore, if, despite all appearances to date, he does hold consent to be the sine qua non of morally permissible sex, he will at this point ascertain what she wants. He may lean in to kiss her, but he will wait to see how she responds, and immediately withdraw (and apologize) if she does not reciprocate.

      …one has a responsibility to closely monitor one’s partner’s willingness to continue, and stop the moment it appears compromised.

      Why do you assume he didn’t? There is no reference in Scenario B to his failing to do that.

      Yes there was. Here it is: “Then without warning he starts kissing and fondling you, then undressing you, then…everything else. You didn’t give him any signal you wanted to fool around… He didn’t ask you. There was no lead up to test your boundaries or pauses to determine your desires.” No warning, no signal, no asking, no lead up, no testing of boundaries, no pauses to determine her desires.

      That is why I am struggling to see a difference between Scenarios B and D. People who care about consent, check whether it is present. Not checking whether consent is present means that one doesn’t care about it. Taken in conjunction with the aforenoted fact that he deliberately got her drunk first, this would be sufficient to remove reasonable doubt of mens rea. If he does care about consent, and acts this way, then either he is under the delusion that he can read her consent telepathically (in which case he is a danger to himself and others and needs to be taken into custody), or some other person who does not care about consent has taken control of his actions (in which case that other person is now guilty of sexual assault).

      At this point, then, the perpetrator has mens rea of sexual assault. He also has actus reus of everything except what is outside of his control, namely the victim’s state of mind. He is, therefore, liable at the least for attempted sexual assault. Now Scenario B specifies that “You aren’t thinking straight, or thinking at all, but it’s exciting and you participate enthusiastically.” Consent is a choice which requires the ability to think — again, I’m assuming for now that you’re not a rape apologist. Since she can’t think, she can’t consent. That completes actus reus.

      Let us suppose, however, in a last-ditch defence, that we are using a crappy legal definition of “consent” which is satisfied by her “excited participation” despite her intoxication. What happens next? “But in the midst of it” — i.e., the act of intercourse continues after this moment — “you start to feel it’s wrong.” At this point there are four possibilities, and Scenario B does not specify which is the case:

      (a) At this point her “enthusiastic participation” ceases, and the perpetrator notices this but keeps going. He is now knowingly having intercourse with a non-consenting partner, thus completing actus reus and mens rea. This is rape.

      (b) At this point her “enthusiastic participation” ceases, and the perpetrator does not notice this, in which case he cannot have been monitoring her continued consent. He is having intercourse with a partner to whose state of consent he is reckless, thus completing actus reus and mens rea. This is rape.

      (c) At this point her “enthusiastic participation” ceases, and the perpetrator does not notice this despite monitoring her continued consent, because he is incapable of detecting enthusiasm or lack thereof in a person he is having intercourse with. Actus reus is complete and mens rea absent, but his mental pathology or disability renders him incompetent to have sexual encounters with other human beings. He is not guilty on account of insanity (and his carers are guilty of gross negligence). Since he was perfectly capable of detecting her level of intoxication, this possibility falls outside the bounds of reasonable doubt.

      (d) Despite no longer wanting to have sex with him, and despite (as you have subsequently insisted) not being under any kind of threat should she fail to comply, she continues to “participate enthusiastically”. She is now proved to be a pod being from the planet Zog, because humans don’t do that. This possibility falls outside the bounds of reasonable doubt.

      I conclude, therefore, that Scenarios B and D are synonymous, and that both are, morally, cases of rape. If there are other possibilities I haven’t considered, please point them out. But kindly refrain from making unwarranted assumptions about my way of life in the process.

    3. Richard Carrier

      Morality is concerned with prescribing future actions from the point of view of the individual, whereas law is concerned with penalizing past ones from the point of view of society (as vested in the State).

      They also differ in that the purpose of law is not to legislate morality but to maintain a civil society, so that people can live by their own moralities (if such there are). One of the requirements for maintaining a civil society is a system of justice, which will overlap but not be coterminous with morality. In contrast, you seem to be assuming that law is just codified morality. I have argued against that assumption since at least 2005. This might not matter, but I wanted to make it clear.

      External consequences are the stuff of law; decisions, intentions, purposes are the stuff of morality.

      False dichotomy. Morality concerns both; the law concerns both. There is no distinction here.

      The law, looking in from outside, quite rightly gives people the benefit of every doubt as to their true intentions, and moderates its penalties according to outcome. Morality, being internal to the individual, is not bound by legal rules of evidence as to that individual’s state of mind, since the individual knows their own mind beyond what the state ever can; conversely, anything that happens outside of the individual’s control — the trajectory of a bullet, for instance — is outside its purview.

      Any morality would be unjust if it could disregard facts and rules of evidence. So I don’t see the merit of your line of reasoning here.

      The reason legal rules of evidence are more strict in law is that evidence requirements are set in proportion to the penalties being enforced. Hence civil court rules of evidence are much more lax than criminal court rules of evidence–all of this has been extensively discussed in reference to this case, and I gave numerous links to those discussions in my original article, in its very first section.

      Thus, when the penalty is not the use of force against another (to take their money or jail them), but just things like public disapprobation, then the standards of evidence are even more lenient (but not so lenient that anything gets in; even more lenient rules would then allow suspicion or caution without disapprobation, and so on). But this is all a function of certainty of what happened, not a function of the morality of what happened.

      So you seem to be confusing epistemology with ontology here.

      But we do jail people for attempting crimes.

      Only when doing so is itself a crime.

      (And of course when we can prove they attempted the crime, but that’s again epistemology, not ontology.)

      And if mens rea is present, and every part of actus reus is present except for something outside of the defendant’s control, then that’s an attempt.

      The actus reus that must in those cases be present is an actual attempt at a crime (an attempt that is ontologically real, not hypothetical or merely believed to have occurred). And then you are convicted only of “attempted x,” not x. Attempted murder, not murder. Thus, in this case, if there is a law against attempted rape (in many jurisdictions there isn’t, but let’s assume we’re in one, e.g. the UK), then we would have a crime. But it still would not be rape. It would be attempted rape.

      “He keeps filling your wine glass.” The victim’s intoxication is not an incidental circumstance which the perpetrator happens upon and chooses to exploit; it is a circumstance which he deliberately arranges.

      Which would be relevant if he did this with the intent to commit rape.

      Since no such fact is stated for Scenario B, this is irrelevant. Hence you are adding facts to what I wrote. Exactly as my article here explains. You are now talking about Scenario D. Which I did not discuss in the original article.

      Scenario B specifies that she is too drunk to see straight or walk without losing her balance. She is not in control of her drinking; he is.

      Notice the trick you just pulled. You changed the timeline in my Scenario B. Now you have these effects occurring before he supplies her with more alcohol. But in what I actually wrote, these effects only occur after that has stopped, and he is not supplying her with any more alcohol.

      Thus, your reasoning here is based on a factually false representation of what I wrote. You are now talking about a completely different Scenario than Scenario B, one I never commented on.

      …if you want meaningful consent from someone, getting them drunk first is a mind-bogglingly misguided way to go about it, because of the aforementioned effects of alcohol on one’s self-control.

      Exactly what I said in the article you are talking about. I wrote several paragraphs on exactly this point.

      Were I a juror, I would not now be entertaining reasonable doubt. He intended to get her drunk, and got her drunk. He intended to have intercourse with her, and had intercourse with her.

      This would all be valid if you were judging him on Scenario A.

      But his intentions are moot in Scenario B, because the crime has not occurred. Nor can it be established or assumed an attempt at a crime has occurred–that would require assuming he intended to get her not just drunk but so drunk that she could not even legally consent. Plenty of men who inebriate women are not attempting to do that (although some do, we cannot impugn the many with the guilt of the few–another very fundamental principle of justice).

      Again, if somehow we could prove (and since we should be talking ontology and not epistemology anyway let’s assume we can conclusively prove it, so the problem evidence is taken out of the equation) that the perp intended to get the victim so drunk they could not even legally consent (so we are in Scenario D at the very least), Scenario B still only gets us a crime of attempted rape, not rape. (For all the reasons I have explained several times already, but most importantly in the article you are commenting on here.)

      Attempted murder is not murder. Attempted rape is not rape.

      It’s still despicable. And, in some jurisdictions at least, it’s still illegal–even a felony (e.g. in the UK). But there is a difference–otherwise we wouldn’t acknowledge the difference in the law (nor would we be able to, since lacking a difference, there could be no way to tell what was a rape and what was an attempted rape, yet we can, so obviously they cannot be the same thing).

      …one has a responsibility to closely monitor one’s partner’s willingness to continue, and stop the moment it appears compromised.

      But failing at that responsibility is not synonymous with rape. Failing at that responsibility can possibly lead to a rape–even a rape you don’t know you are committing, but nevertheless are. I already made that point, and discussed it in detail, in the original article.

      That is why I am struggling to see a difference between Scenarios B and D.

      Then you don’t know human behavior very well. I know plenty of men who have gotten women inebriated to increase the chances of sex, with full intention to take advantage of any offer, yet would be horrified to learn they had gotten her so drunk she couldn’t even understand what was happening. Yet you would condemn them all as rapists…even when they never actually get any woman that drunk!

      Do you see the perplexingly disturbed logic of your own reasoning?

      First, you assume everyone in Scenario B is in Scenario D. That’s factually false. B and D are not the same sets. D is a subset of B. Thus whether something that happened is in set D cannot be determined solely by examining whether it is in set B. That’s fundamental logic. So let’s hope you are never on a jury having to decide whether that’s the case on the evidence rather than your own a priori prejudice.

      Secondly, you want to call everyone in Scenario D a rapist. Which is fine. As long as you realize you are changing the meaning of “rapist” to what most people will not understand you to mean. You should perhaps say “potential rapist” or “attempted rapist” or “inevitable rapist” (if we assume a statistical incidence of rape from repeated iterations of D). But saying “rapist” is playing a bit loose with the word. Most people will take that to mean a person who has actually raped someone.

      As long as you are aware of the possible confusion your use of the word will thus cause, and take responsible measures to forestall that confusion, then I have no objection to your calling the man in Scenario D a rapist. But it seems like a lot of work just to get to use the one specific word you want, so I would question your motive for needing to use that word. Are you trying to play on popular emotional hatred toward a rapist in the usual sense (a person who has actually raped someone) in order to transfer that emotion to a person who hasn’t actually raped someone? If so, I would question why you need to do that. And whether it is manipulative.

      If all you mean to accomplish is to warn people off someone who might be a potential rapist or might be engaging in behaviors that carry a significant danger of making them a rapist, then you are just repeating the last paragraphs of my original article. None of which requires exploiting an affective fallacy by loosening the meaning of the word “rapist.” So why do you feel the need to use that tactic, when clearly it wasn’t necessary when I made the very same point you are now attempting to make?

      People who care about consent, check whether it is present. Not checking whether consent is present means that one doesn’t care about it.

      False. Many people lack the kind of knowledge and wisdom you are operating on. For example, many people (and polls will show this) think anyone who can fuck can consent to fucking. They are actually quite clueless about how the ability to consent can be compromised without their noticing, and don’t even know that a person in such a state can still participate in sex. In other words, a lot of people don’t realize Scenario A is possible (so many people, in fact, that Scenario A is actually not even illegal in many states…as I noted in the first place).

      It’s not that these people are monsters and don’t care (as if the entire voting majority of New Jersey doesn’t care about consent). It’s that they literally don’t understand or know this. And rich white men, lost in a galaxy of privilege, are often the least informed or reflective about these sorts of things.

      Thus, you cannot assume someone has all the knowledge and insight and perspective that you do, and then interpret their actions based on the assumption that they have all that knowledge and insight and perspective, and therefore must be deliberately disregarding consent, and therefore everyone in B is in D. That would be a hopelessly naive and wrong way to understand not only people, but rape culture as a whole, as if “rape culture” means an entire society consciously and deliberately and knowingly promoting rape. That’s not what rape culture is. And because that is not what rape culture is, Scenario B is not always Scenario D.

      But that cannot excuse Scenario B. You still have to be disturbingly self-absorbed and inattentive and insensitive and inconsiderate of others to even get into Scenario B (which was the very point of my original article).

      Yet, if you want to prevent Scenario B’s, the worst thing you can do is assume they are all Scenario D’s. Because then you will be overlooking, and not speaking to or educating, the millions of men and boys who are sincerely not attempting rape when they pursue sex through alcohol. And thus you will be changing nothing.

      Scenario D’s are predominated by sociopaths whom you can’t likely ever educate. But Scenario B’s are predominated by men you could actually get through to. If you didn’t keep saying Scenario B can only happen if rape is intended. Because then any man who isn’t intending rape can assume they will never be in Scenario B, as if the only thing they need do to avoid Scenario B is not intend to rape someone. But that’s false. It’s not enough to merely not intend to. You also have to take further steps to make sure you aren’t. In other words, you have to be aware of the sorts of things I explained in my original article, and actually apply them to modify your own behavior. Merely lacking intent will not magically do that.

      Just as importantly, it is not enough to educate men against committing unintended rape. Because plenty of bad things they can do are not rape, and we want to educate them against all bad things, not “just” rape. If, again, we make it all about rape, then many men will assume that as long as they can check off the list of things that ensures that what they are doing isn’t rape, then it’s okay. That is exactly what we don’t want to happen. Men need to be aware of all the other ways they can produce harm, and learn to care about that harm.

      Your attempt to make all B’s into D’s makes it impossible for you to even notice the existence of most men who need to hear this (much less for you to actually get them to hear it)–the men who end up in B without intending rape, and the men who don’t realize the harm they are causing women even when they make sure they aren’t in A.

      Consent is a choice which requires the ability to think — again, I’m assuming for now that you’re not a rape apologist. Since she can’t think, she can’t consent.

      Notice the trick you pulled here. “Didn’t think” becomes all of a sudden “can’t think.” I never said anything in Scenario B about the woman being unable to think. To the contrary, I explicitly established her ability to do so.

      At this point there are four possibilities

      There are more than four. Your assumption that you have exhausted all possibilities is the fallacy of false dilemma.

      and Scenario B does not specify which is the case

      Then you should make no assumptions about which is the case. Indeed, you should rule out all possibilities that are not explicitly set up in the Scenario…precisely because you were asked to compare it with Scenario A, and therefore you should not be adding things to either, you should only be comparing what is actually stated in each Scenario, and make a conclusion solely on that. Anything else is inventing a third Scenario I didn’t discuss. And then criticizing me for saying something about that third Scenario that in fact I didn’t.

      And that’s the sum of it.

  33. 33
    Naffat

    So are you a “C.H.U.D.” now, Dr Carrier? FTB is getting funnier by the day. LMAO!

    1. 33.1
      Richard Carrier

      Considering that I only ever called a C.H.U.D. people who relentlessly and despicably harass women online, I can only assume you are delusionally lost in a hall of lies about what I actually said. Because no one has accused me of relentlessly and despicably harassing women online. So that appellation, even as I used it, doesn’t apply.

  34. 34
    Geoffrey Churchill

    TW: rape scenario

    I’d like to propose a different scenario. I’ll gender the participants but obviously actors could have different genders.

    A man hires a sex worker. She comes to the hotel room he has rented, They engage in sexual intercourse. She enthusiastically participates throughout. She leaves. Unbeknownst to the man, her manager has physically threatened her into her position as a sex worker.

    Now it seems to me that the act I described is sex without consent and I think it would be unfair for anyone to say that she was not raped. But, it also seems unfair to call the man in the situation a rapist. I know playing the hypothetical game can distance us from reality, but I think it is reasonable to assume that this scenario would happen often.

  35. 35
    Withinthismind (your logins just suck)

    —And you have indeed repeatedly said that drinking any alcohol whatsoever makes it impossible for one to consent to sex.—

    Thank you for proving you have not, in fact, read my responses, as I did not say this at any point.

    Now, please answer the question – what, exactly, are they ‘taking advantage’ of, if not the diminished capacity to say no due to the alcohol?

    1. 35.1
      Richard Carrier

      Thank you for proving you have not, in fact, read my responses, as I did not say this at any point.

      Multiple people here have confirmed you made statements that entailed you did indeed mean that. So now you are changing what you meant, as if you had never implied what you clearly did–but now that means your original arguments are unsound, because they depended on the premise that you are now denying. It does not appear that you grasp this.

      This is not me failing to read what you wrote. This is you not grasping the implications of what you wrote. Most particularly, that your arguments become unsound without the premise you now insist you never relied on.

      Now, please answer the question – what, exactly, are they ‘taking advantage’ of, if not the diminished capacity to say no due to the alcohol?

      They are taking advantage of a person.

      A person is not a capacity. A person is a person. Persons can be taken advantage of whether they have diminished capacities or not. Indeed, everyone has diminished capacities relative to some other person. Some people are less intelligent than other people and therefore more easily manipulated, for example…but that does not mean that therefore all sex with non-geniuses is rape.

      Start looking at the literature on how low one’s intelligence must be before they cannot legally or morally consent to sex, and you will end up where the rest of us already are on every other form of impairment, including alcohol: you must be inebriated to a certain qualitative extent. I discussed in my original article the law and science of just how far that must be, with citations to the literature.

      (Which you keep ignoring. After repeated requests to stop ignoring it. So we are coming close to ending this conversation. You are well in violation of my comments policy by now.)

    2. 35.2
      Jet

      Have to chime in.

      Withinthismind, you are being incredibly dishonest on this thread. While this is a touchy subject, and it’s natural that emotions will run high (especially for someone who has experienced the trauma that you have), it seems that you aren’t willing to even try to engage in this conversation in a rational manner. Carrier has show extraordinary patience with you IMO. The least you could do is read his articles and numerous responses carefully.

    3. 35.3
      WithinThisMind

      Jet, I have.

      Why don’t you try to answer the question?

      What ‘advantage’ does the alcohol provide in the scenario offered?

      It’s a simple question.

      Why work so hard to avoid it?

      You and I both know the answer – the answer is that alcohol makes it harder for a target to resist. Therefore, it acts as a coercive element by making it more difficult for the target to refuse sexual advances. It impairs the ability to make rational decisions, thereby making it impossible for consent to actually be given.

      ‘Taking advantage’ of these elements is called…..wait for it…. rape

      If a person is legally unable to muster the ability and decision making skills necessary to drive a car, how can they consent to sex?

      Oh, and don’t pull the cheap ass – ‘wow she’s a rape victim so she must be all emotional’ bullshit ever again. It’s cheap, it’s dishonest, it’s misogynistic, and it’s insulting.

    4. 35.4
      jet

      Alcohol lowers inhibitions. Nobody has argued otherwise. Your question has been answered countless times. Nobody has tried to avoid it.

      What people have pointed out to you is that having your motor reflexes and reasoning abilities impaired does not in any moral or legal sense mean you are unable to give consent. You just don’t seem to understand what it is you’re saying.

      Your car example illustrates this lack of understanding. A drunk person is not “unable to muster the ability and decision making skills necessary to drive a car”. If a drunk person really were “unable to muster the ability… to drive a car”, then there would be no such thing as drunk driving (drunk people would simply sit there in the car, unable to drive it anywhere). If a drunk person really were “unable to muster… the decision making skills necessary to drive a car”, then we’d have no moral or legal basis for saying drunk driving is wrong (we can’t blame a drunk driver for making a decision that it would have been impossible for them to make). Think about that. Think about how absurd what you’re saying is. Then go back and reread the arguments Carrier and others have made.

      Also, if you’re a victim of rape, and that doesn’t make you emotional, then you are a rare animal indeed. The science is in on that one. The science is also in on the fact that people become less rational when discussing a subject that is emotionally charged for them. For me to assume this is the reason you’re being irrational here is me being charitable to you. The alternatives are that you’re just not intellectually skilled enough to see the validity of everyone’s arguments, or that you’re being intentionally dishonest in your dealings. Most people I know are intellectually skilled enough to follow a conversation like this and are honest in their dealings, so I’m assuming you are as well. Hence, I’m left with the option that you’ve allowed your emotions to cloud your reason. Hence, I stated as much.

      You’re not allowed to tell me to never do this again (well, you are, but I have no obligation to listen to you). This isn’t the A+ forums/subreddit where I can be banned for making an honest argument. If Dr. Carrier finds my comments in violation of his policy, then he has the power to moderate me. Not you.

    5. 35.5
      Richard Carrier

      [Jet, your two comments are not identical but have identical parts, so I didn't know what to do with them. If you want me to replace both with a new one that combines all the points you wanted to make, or if you want to edit down either one so they aren't redundant, just email me with instructions and I'll be happy to revise for you.]

    6. 35.6
      WithinThisMind

      —Nobody has tried to avoid it. —

      Except for Carrier, and still you.

      If I take advantage of an elderly person’s dementia/senility to get them to sign over their life savings, have I committed a crime, yes or no?

      Think carefully before you answer.

      Dementia/Senility lowers inhibitions

      Consider your answer.

      Dementia/Senility hinders decision making abilities.

      Examine your reasoning

      Dementia/Senility, in many ways, resembles being intoxicated

      Think about it a little more.

      What is your answer?

      —Lowered inhibitions and hindered decision making abilities do not make it impossible to give consent in a moral or legal sense.—

      Are other forms of coercion okay with you and Richard as well? Teacher/Student relationships and the hindered decision making capabilities brought on by that scenario are also okay? Guard/prisoner? Commanding officer/soldier? Adult/child? It’s not ‘impossible’ to give consent in those scenarios either, in spite of the ‘hindered decision making abilities’. And yet decent people acknowledge that removing somebody’s ability to say ‘no’ makes it rape. Putting someone in a situation in which they cannot say no is no different than ignoring a no. It’s rape, no matter how often you do it and how many ways you try to tell yourself it’s okay.

    7. Richard Carrier

      If I take advantage of an elderly person’s dementia/senility to get them to sign over their life savings, have I committed a crime, yes or no?

      Notice you specify “dementia/senility.” Thus you seem to be aware there is a difference between that and just having a merely average IQ and someone taking advantage of that.

      Maybe at some point a light bulb will go on and you’ll get the point I just made.

      But since it’s been explained to you at least six different ways by at least three different people already, I’m not optimistic.

    8. 35.7
      WithinThisMind

      Oh, and thank you for mansplaining to me about how a rape victim should feel and act. I do greatly appreciate it. It was so straining my fluffy pink lady-brain trying to make that determination for myself.

      —If it were true that “a person is legally unable to muster the… decision making skills necessary to drive a car” when they are drunk, then we would have no grounds to prosecute drunk driving. Think about it, we’d be penalizing them for making a decision you’re saying it was impossible for them to make (because they were drunk). Sound silly? That’s because it is. But that’s your argument.—

      No, actually, it isn’t. I’m sorry my condemning rapists is making you so emotional and that you are taking it so personally.

      Because in the scenario Carrier offered, there is the outside pressure of the person who has been providing the alcohol (did you forget about that person?) and taking advantage of the state they have deliberately induced. To make your counter-argument sound, you’d have to include a wholly separate individual putting the drunk individual behind the wheel of the car, starting the car, and taking the parking break off. And if that happened, absolutely, the drunk person shouldn’t be prosecuted because they didn’t make the decision to drive.

      Someone else took advantage of the lack of resistance offered by the booze to make the decision for them.

      That’s what Carrier has meant all along by the ‘taking advantage’. That’s what you are defending.

      The drunk person didn’t make the decision to have sex. The aggressor took advantage of the alcohol to make the decision for them.

    9. 35.8
      jet

      “Oh, and thank you for mansplaining to me about how a rape victim should feel and act. I do greatly appreciate it. It was so straining my fluffy pink lady-brain trying to make that determination for myself.”

      I didn’t do that. I explained how rape victims typically feel and act, and how my initial comment (the one you objected to) was based on those facts. I then explained why this is actually my way of being friendly with you, since the alternative is that you really are straining your “fluffy pink lady-brain” and yet you are still unable to understand what your opponents are arguing. I’ve already said it, but I’ll say it again. I don’t believe you’re incapable of understanding the points that have been presented to you, and I don’t think you’re being intentionally dishonest. I think this is a hot button topic for you, and you’re allowing your emotions to cloud your reasoning.

      Your dementia question strikes me as a red herring, and I won’t take the bait. This entire argument got started because you were insisting a drunk person is incapable of consent, and therefore having sex with them is rape. That is an untenable black-and-white approach to a complex moral question. Again, I suspect you’re angry and didn’t even realize at the time that this is what you were effectively arguing. When pressured, you’ve backed away from the premise “drunk = unable to consent”. As Carrier has already pointed out, you seem to have missed the fact you were abandoning the premise your initial conclusion relied on. You don’t really seem to understand what it is you’re arguing let alone what we are arguing.

      Case in point:

      “To make your counter-argument sound, you’d have to include a wholly separate individual putting the drunk individual behind the wheel of the car, starting the car, and taking the parking break off. And if that happened, absolutely, the drunk person shouldn’t be prosecuted because they didn’t make the decision to drive.”

      This is not a typical drunk driving scenario and clearly not what I was pointing toward when I made my analogy. It’s also not completely correct even as you’ve written it. What you were trying to describe is something analogous to Carrier’s Scenario A, and might go like this:

      You’re with someone at a bar. They get you get so drunk you can barely speak. The person with you at the bar lifts you up and half-carries you to your car as you can no longer walk on your own. They put you in the driver’s seat. You mumble incoherently. They take the parking break off, and roll you down a hill. You hit someone and are arrested.

      In that situation, you are clearly not responsible for being drunk behind the wheel. Now, take a look at a more realistic drunk driving scenario (and one that’s more analogous to Carrier’s Scenario B):

      You’re with someone at a bar. They get you so drunk you have trouble standing. The person with you at the bar helps you back to your car. At the car, they say,”let’s drive this motherfucker. Fuck the law.” That excites you. You giggle and get into the drivers seat. You turn the car on, speed out of the parking lot, hitting someone. You are arrested. At this point you start to regret your decision.

      In that situation, you are sure as shit responsible for being drunk behind the wheel. If you go to court and try to explain you were drunk, and therefore it wasn’t really your decision to get behind the wheel, well… Let’s just say I don’t give you favorable odds in that situation. Likewise, any reasonable person will likely slap you upside the head if you try to tell them you were incapable of making a decision to get in that car because you were drunk.

  36. 36
    JT

    “and instead have bought the MRA stance instead of reality.”

    Feminists turning on each other. This is delicious.

    1. 36.1
      Richard Carrier

      It’s weird seeing people complain that feminists all think alike, then when we prove they actually often openly and actively disagree with each other, act like this is a defect.

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