Contra Peikoff on Rape

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

22 Responses to “Contra Peikoff on Rape”

  1. Swinging Puritan

    So she can withdraw her consent anytime she likes. Is that true even if he can’t withdraw his, um, “consent” anytime he likes?

  2. JD

    There was much discussion in our house over this today, and I’m happy to read your response.You framed the problem with Peikoff’s recent podcast nicely, and you helped calm my anger. I, too, hope he just wasn’t thinking clearly. And I also hope Dr. Peikoff deems this subject worthy of reconsideration.

  3. Swinging Puritan

    Because this is exactly the type of thing Peikoff appears to be talking about. Here are the details of the actual Kobe Bryant case, what Peikoff is too polite to say it in public when he says “then when he purported to do something she said, ‘No, I don’t consent.'”

    “It was revealed that Bryant leaned the woman over a chair to have sex with her, which allegedly caused the bleeding. This was the sex act in question, as the accuser claims she told Bryant to stop but he would not, and Bryant claims he stopped after asking if he could ejaculate on her face.”

    Bryant says she bent herself over, and only said no after he was moving on to the next thing. If she only tells him to stop after he’s done the deed (“when he purported to do something”) and then says “no,” you really think this means she didn’t consent to what happened (or not) just previously??

  4. JD

    As a “he” I’d like to go on record saying that I can withdraw my “consent” whenever prompted, and I consider it my responsibility as a grown ass man to do so. (I really hope you’re not serious, S.P., and that you didn’t learn sex from a pack of wild dogs.)

  5. JasonStotts

    Swinging Puritan,

    Frankly, I’m less concerned with the actual facts of the Bryant case and more concerned with the general moral principles involved.


  6. Diana

    You make some excellent points. If you have read some of my comments and writing on another site you know where I stand on the feminist constant reaffirmation BS thing.

    One area where I would disagree slightly is your characterization of the “rape” scene in The Fountainhead. I just read it again to be sure and although Dominique does not say no she does fight and at one point tries to hit Roark with a lamp. As relates to this issue, that account as given would be a bit past the gray area for me. However, that isn’t the point of the scene. It’s a device to illustrate Dominique’s struggle, as you say above.

    Another important aspect of this scene is that it is part of a novel. Fiction. Designed to say something about the author’s beliefs but also to entertain. It’s been my impression that these scenes are as much fantasy as metaphor. I’m not prepared to make a coherent argument for hero worship and how that relates to the relationship depicted in the book and what that may or may not mean, but that would be beside the point.

    I also find it interesting that Rand chooses to use the word rape to describe the incident and to have Dominique react in ways typical of one who had actually been assaulted.

    In this case, I think that particular scene, while it works well in fiction would be something different if it were a true account of an actual event. Imagine a friend coming to you giving that account instead of reading it in a novel. You might feel differently. In reality, this sort of event without the presence of some sort of negotiated relationship or agreement regarding consensual non-consent would be over the line. It’s just not the most clear-cut example of “she didn’t say no” out there.

  7. Swinging Puritan

    “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.”

    So, suppose at time t, Kobe is inside this girl. At time t + 1 second, she says stop. Is it your allegation that at time t + 2 seconds, if Kobe has not yet withdrawn, it suddenly becomes rape?

    Surely any meaningful standard of consent will take into account normal human reaction times and, well, however much time it takes to get disengaged. This may be all that Peikoff means by the principle to which you object.

    But since we don’t know what case Peikoff is actually talking about, let’s just be rationalistic and interpret the meaning of his principles without reference to any examples! Oh, wait…

  8. Aaron

    Great post Jason. Glad to see Objectivists speaking out against the effective defense of date-rape that Peikoff gave.

    I’m not too concerned with the Kobe Bryant case in particular either, vs the principles. My understanding of the case is that there is a good chance it was rape, but without enough evidence to legally prove – an issue common to unwitnessed sex acts and one person’s word against another.

    There are legal issues and precedents around the border cases of withdrawing consent – e.g. reaction time, and cases which may support ‘t + 5 seconds’. However, there is nothing in “frees the man to have sex regardless of what she then says” that implies even stopping at “t + 2 hours” after withdrawn consent. Maybe, hopefully, Peikoff intended something other than his actual words – but it’s up to him to revise to give his real meaning rather than us to divine.

  9. Swinging Puritan

    Aaron, you wrote:

    “However, there is nothing in “frees the man to have sex regardless of what she then says” that implies even stopping at “t + 2 hours” after withdrawn consent.”

    But let me restate Peikoff’s whole quote:

    “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.”

    Everyone here is ignoring that part of the quote, and not asking what contexts he might mean. Since he himself provides an example of the kind of context he means (the Kobe Bryant situation), you would think that it would be best to discuss the meaning of his statement with reference to it.

    But no. Instead people have decided to take Peikoff’s statement out of context, give it the worst possible interpretation, and morally condemn it on that basis.

    This is a great and productive way to make Objectivism look good! Let’s hang on every word of someone who does a popular podcast, and then quote that person out of context without even considering possibly more innocent interpretations. Because it’s not like any other Objectivists have ever done that to any other podcasters. What a great precedent we might end up setting!

  10. JasonStotts

    Swinging Puritan,

    Peikoff is claiming that in SOME contexts a woman cannot withdraw her consent and that a man can keep having sex with her, even over her protests, and that this is not rape.

    I am claiming that there are NO contexts where having sex with a woman without her consent is not rape.

    This is not a superficial disagreement.


  11. Swinging Puritan

    That’s a fine thing to say Jason. I think we all agree that sex without consent is rape. The question is about what constitutes legitimate consent or the revocation of it? Do you really think someone is a rapist if he hasn’t withdrawn one second after she says “stop”? Especially considering the ambiguity of communication in the bedroom? Does she mean stop having sex with him period, or stop doing it that way, or something else?

    Apparently someone was convicted of being a rapist for not stopping after 5 seconds. A woman can explicitly give a man consent, allow him in, and then because she changes her mind suddenly (contrary to the normal expectations of a sex act) and he stays in 5 seconds too long, he has to go to jail? Does that really make sense to you? Or does it sound like a judicial system dominated by feminism and political correctness?

    Since this is more or less the kind of situation Kobe was in, and this is what Peikoff was talking about, aren’t you stirring up quite the tempest in a teapot here? Especially since the rest of his podcast wasn’t even on this topic? Peikoff’s words taken out of context surely are infelicitous, but that’s what makes it important to put them in context. It’s a cardinal rule of philosophic argumentation that you should interpret an interlocutor’s statements in the way that would maximize the reasonable chances that what they’re saying is actually true. (Sometimes philosophers call this “charity.”) Why not interpret Peikoff’s statement this way? It’s what I imagine you would ask others to do when interpreting some of the things you and your friends say on podcasts.

    Or do you really think we’re doing our cause some good by looking for ways to disagree with people who are otherwise rare philosophical allies?

  12. JasonStotts

    Swinging Puritan,

    I think I’ve presented my views on what constitutes consent clearly above.

    In terms of your question about how quickly must a man withdraw from a sex at after consent is withdrawn, I think the answer is as quickly as is reasonably possible. If he’s not sure that is what the woman is saying, then he should stop and ask for clarification. It’s not reasonable to say that you just kept going because you weren’t sure whether or not the woman was withdrawing consent. The case of a man being prosecuted for rape after 5 seconds is ridiculous and unreasonable, unless the man told the woman he would’t stop and finished in those five seconds. Then, perhaps it’s reasonable. The principle is that a man should stop having sex with a woman as soon as reasonably possible once he is alerted to the fact that she no longer consents. Furthermore, a man of character should want to stop immediately.

    Here’s the thing, I think Peikoff is a great man and I’m glad he’s on our side, but my respect for what he’s done in the past doesn’t mean that I can sanction him advocating rape as long as it’s in certain contexts. There are no contexts where I think that it is morally permissible to have sex with a woman against her will.


  13. Swinging Puritan

    But Jason, if you agree that it’s unreasonable to prosecute someone for rape for staying in 5 seconds too long, then still to say that Peikoff is advocating rape, i.e. knowingly having sex against her will, looks like a crystal clear case of begging the question. The whole question is precisely whether he actually advocates that.

    “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.” What Peikoff may very well mean by this is simply that having already given her consent, not every word she speaks in every context can reasonably be interpreted as having communicated her withdrawal of consent, in which case a man who keeps having sex with her (say for five seconds) will not count as having had sex knowingly without her consent. See?

    You say you’ve made clear in your post what constitutes consent. But the whole question here is what constitutes *withdrawing* consent. We all agree that if she withdraws it, *and the man knows this and is reasonably able to stop*, he’s raping her. But you seem to be ignoring the possibility that what Peikoff means by the admittedly infelicitous quotation is that there can be some contexts where it is not at all clear to the man that she has withdrawn consent, such that he cannot reasonably stop, and such that in these cases, her grounds for accusing him of rape are extremely weak.

  14. Jeff Dyberg

    I’m just not buying it that Peikoff is advocating or condoning rape (in any context). The math simply doesn’t add up.

    “Well, that’s obviously deception. So, in a sense, it is like rape because she is engaging in the act without her actual consent.”

    He recognizes that the act of deception (saying “I love you” when you don’t) could be considered rape. But when a woman engages in the overt act of saying “No” she’s NOT being raped? That dog don’t hunt.

    You’d also have to disregard Peikoff’s knowledge and awareness of the concept of rights. Leonard Peikoff doesn’t recognize a woman’s right to withdraw consent?

    Sorry, but there’s too many shenanigans going on here for me to reconcile. The more likely case is Peikoff’s words are being interpreted as uncharitably as possible.

    Jason, I think you’d be hard pressed to find someone who disagrees with you about what constitutes a rape, including Peikoff himself.

  15. JasonStotts

    Swinging Puritan,

    I don’t think there’s any evidence for your interpretation of Peikoff’s claim. I wish he was saying something like that, but he’s pretty explicit that he thinks there are contexts where once consent is given, it cannot be withdrawn. I think our back-and-forth here is not being productive and I hope that Peikoff himself will respond to this and clarify his position.


  16. Swinging Puritan

    The evidence for my interpretation is the context of his words, which you have yet to engage with. (Not to mention everything else about Peikoff that would lead one to expect he doesn’t condone rape.)

  17. Quarry Granite

    You would think that the strongest argument against Leonard Peikoff’s statement would come from actually looking at the case he cites (Kobe Bryant), deciding whether Kobe commited rape, and if you conclude that it was rape, then conclude that Peikoff is wrong. The Fountainhead scene does have Dominique’s vehement refusal by her phsyical action, more explicit than any statement she may make, and yet it wasn’t rape. She did withdraw consent! A punch in the face, generally, can be considered withdrawal of consent, and in some cases it is part of the sex act. There are special circumstances, and that is all Peikoff is saying. And maybe Kobe Bryant’s is such a special circumstance. You can’t imply that Peikoff is advocating something more vile, without looking at the specific example he cites. You can’t even imply that Peikoff is considering the examples about how long before pulling out is rape or not–when he gives us a clear example of what he means (Kobe Bryant). There are special circumstances.

  18. Opinionator

    Relevant… Sex in The Fountainhead – The Rape of Ayn Rand:

  19. JasonStotts

    I agree, there was not a rape scene in The Fountainhead, as I said in my post.


  20. Erosophia

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  21. Erosophia

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