by Jason Stotts
I think that Leonard Peikoff has done some great things for Objectivism, he is like a demi-Aquinas, but when he talks about sex and sexual issues, it makes me really sad. Frankly, his position on rape is both disgraceful and disgusting. I don’t know how anyone of good moral character or intelligence could actually advocate what Peikoff advocated. It is made much worse because Peikoff is someone I respect and I did not expect him to hold such a reprehensible view of rape.
I’m referring, of course, to his recent Podcast question, episode 202 from February 5th, where Peikoff responds to this question:
Is it rape if you obtain sex through fraudulent means? For example a man does not love a woman but tells her he does so that she will have sex with him. Is this the moral equivalent of rape?
His response is:
Well, if all she needs it three words, “I love you,” and you’re not saying it, then it’s not an issue of rape.
You have to determine, here — before you talk about rape — what is the context. A woman can give her consent by her presence in certain contexts and that frees the man to have sex regardless of what she then says. I’m thinking of that case of Kobe Bryant where the woman came up some time in the middle of the night, after some drinking, to his bedroom and then when he purported to do something she said, “No, I don’t consent.” You cannot do that. You have given every evidence that that is what you’re going to do and it is too late at that point to say, “Sorry, but no.” So, we’re assuming it’s not that type of case.
You actually have created some kind of false identity, she falls for it, and she never would have [had sex with you] otherwise. Well, that’s obviously deception. So, in a sense, it is like rape because she is engaging in the act without her actual consent. Without her knowledge means she would not consent to what you’re doing, so you’re using fraud, and it is a form of having sex by force. But I don’t think you could ever make that a legal crime. Because she says she thought you loved her, but you say you didn’t say you loved her. But if it came to the law case, how are you going to decide? What is objective? If a woman says, “He told me that he loved me and he didn’t!” Any defendant can say, “I indicated that I had a great admiration for her otherwise I wouldn’t want to sleep with her, et cetera, et cetera,” there is no way of adjudicating what emotions he did or didn’t feel or what conversation he did or didn’t have.
But if there is evidence of physical violence, you know, of a context [such as] she didn’t know him, she was walking down the street, et cetera. That’s a different story. So. that’s what I would say. It’s fraud, but in the form you present it is not a legal case.
I want to focus, primarily, just on his one claim:
A woman can give her consent by her presence in certain contexts and that frees the man to have sex regardless of what she then says. I’m thinking of that case of Kobe Bryant where the woman came up some time in the middle of the night, after some drinking, to his bedroom and then when he purported to do something she said, “No, I don’t consent.” You cannot do that. You have given every evidence that that is what you’re going to do and it is too late at that point to say, “Sorry, but no.”
And to make it very clear what I’m objecting to:
A woman can give her consent by her presence in certain contexts and that frees the man to have sex regardless of what she then says.
Leonard Peikoff believes that if a woman were to come to a man’s house late at night, dressed sexily, and perhaps drunk, that he should just be able to use her a fuck-toy, even if she says no. Even if she says no. He thinks that the context is sufficient consent and that any other consent is unnecessary. Furthermore, he believes that this consent cannot be withdrawn, which is the most troubling part of his claim.
I agree with Peikoff that a woman in the context described above is communicating something: that she is amenable to sex. I don’t even think that one needs to get explicit verbal consent here. I think it would be sufficient to start initiating sexually and see if she responds and take her response as consent. I think it’s fair to say that she’s consented to at least being propositioned, whether verbally or nonverbally, by her presence. However, and this may be the biggest however I’ve ever written, if, at any point, for any reason, she were to withdraw consent, then to continue from that point forward is unequivocally rape.
Literally the only thing that differentiates sex from rape is consent.
It is this idea of withdrawal of consent that Peikoff seems to fail to understand. There are at least two kinds of consent that one can give: consent until such time as the consent is withdrawn and consent which must be constantly given. I’m fine with the idea of consent-until-withdrawn and I see no need for the weaker kind of consent that must be perpetually reaffirmed, which some feminists think is necessary. In fact, I even support Dan Savages “state of implied consent,” where he argues that partners give tacit consent to their partners for anything that the partners have done together before and which one partner can reasonably expect the other to like. So, I agree with Peikoff that the woman is, at least in some ways, consenting to sex with her presence, in the way I said above. But, to think that this consent cannot be withdrawn is to treat the woman as an non-person, which I’m afraid may be how Peikoff sees women. He says “…the man to have sex,” but having sex is not a thing one person does to another. Rape is. Sex is something two people do together. Women are people and they have rights.
The situation described is in some ways close to the “rape scene” that is in The Fountainhead. In it, Dominique does everything in her power to get Roark into her bedroom and when he finally comes, although she struggles a little (symbolic of her struggle with her desire for him and what it means about her character) she submits to him. But, importantly, she does not say “no” or “stop” – she does not at any point withdraw her consent from the interaction. If she had done so and Roark had continued to have sex with her, then it would be an actual “rape scene.” As it is, it is simply very dramatic fiction that concretizes the struggle in Dominique’s character.
A woman simply showing that she’s open to the idea of sex, by indicating consent with her prensce, is not saying that she’s open to anything. Perhaps she’s only interested in making out with the guy and getting to know him better later. Perhaps she’s open to oral sex, but not vaginal. Simply consenting to start walking down the sexual path together is not the same as consenting to any particular destination on that path and it definitely isn’t consenting to every destination on that path. If a woman shows up at my apartment late at night, dressed slutily, and slightly drunk and comes onto me, that doesn’t mean she consents to me tying her up, blindfolding her, and then fucking her in the ass without lube. It might mean that she wants that; but, then again, since she’s a person and can make choices for herself, perhaps she doesn’t.
Ultimately, the only thing that differentiates sex from rape is consent and just because a person initially gives some kind of consent, does not mean that this consent cannot be withdrawn.
I really hope that Peikoff just wasn’t thinking clearly when he said this and that he will recant his statement after reflection.
Related: Contra Peikoff on Swinging