22:22 If a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman: so shalt thou put away evil from Israel.
22:23 If a damsel that is a virgin be betrothed unto an husband, and a man find her in the city, and lie with her;
22:24 Then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die; the damsel, because she cried not, being in the city; and the man, because he hath humbled his neighbour’s wife: so thou shalt put away evil from among you.
22:25 But if a man find a betrothed damsel in the field, and the man force her, and lie with her: then the man only that lay with her shall die.
22:26 But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death: for as when a man riseth against his neighbour, and slayeth him, even so is this matter:
22:27 For he found her in the field, and the betrothed damsel cried, and there was none to save her.
22:28 If a man find a damsel that is a virgin, which is not betrothed, and lay hold on her, and lie with her, and they be found;
22:29 Then the man that lay with her shall give unto the damsel’s father fifty shekels of silver, and she shall be his wife; because he hath humbled her, he may not put her away all his days.
Note also the shockingly late dates at which marital rape has been criminalized (where it has.) As best I can tell none predate 1922, and most were much later.
Note also the shockingly late dates at which marital rape has been criminalized (where it has.) As best I can tell none predate 1922, and most were much later.
Indeed, in the US the last state was North Carolina in 1993, and even still it tends to be a lesser offense (assault, battery, or spousal abuse). wikipedia.
Of course, my wife and I tend to call shenanigans on the concept. Thought experiment:
At least in the case of male->female rape, it’s easy to accuse someone of rape once they’ve had sex with you, it’s a very serious charge, and courts tend to side with the alleged victim. So someone who didn’t want their life ruined (jail time, permanent sex offender registry, etc.) would do well to make certain sure they can establish that consent was given. Various methods would work to some degree—signed documents, video tapes, witnesses, the presence of a government official...
As ridiculous as it would seem to get all of those things together for the recording of consent for sex, it so happens we actually do have an institution that incorporates all of those things—marriage. We actually have a tradition that involves getting the entirety of both families together, in front of a government official, with signed government documents, usually on videotape, where both parties agree (often speaking directly to their respective deities) that they will do certain things with each other, traditionally understood to prominently include sex. A bit over the top, but sometimes you have to do crazy things to avoid litigation.
Except now, even going through all that is insufficient to establish consent. It’s a world gone mad.
At least in the case of male->female rape, it’s easy to accuse someone of rape once they’ve had sex with you, it’s a very serious charge, and courts tend to side with the alleged victim.
Compared to other crimes, rape is extremely difficult to prove in court.
Quick sanity check: According to RAINN (disclosure: citing an organization I’ve supported), 58% chance of a conviction for rape. A questionable Wikipedia article claims that the conviction rate for crimes in general is “84% in Texas, 82% in California, 72% in New York, 67% in North Carolina, and 59% in Florida.” (as of 2000). Thus, it seems plausible that rape is extremely difficult to prove in court.
For clarity, the RAINN stats are rape-specific and the Wikipedia stats are for all crimes, right?
Crime-specific conviction rates seem to be hard to find. A 1997 DoJ press release claims 87% conviction rates for all crimes in federal court (a skewed sample, though) and 86% for violent crime, but doesn’t break it down further. The situation could plausibly have changed in the last fourteen years due to changes in culture or forensic science.
Statistics from the California DoJ (pages 49-50; PDF file) suggest that around 67% of felony arrests (not trials) in the state result in conviction, and that that rate has slowly been increasing since the Seventies (when the number was around 45%).
I tried looking up statistics, but it seems like my Google-Fu has failed. I found numbers for federal court, but most of what it says is that the vast majority of federal indictments are resolved with guilty pleas, and there don’t seem to be very many rape trials in federal court.
Trying to break down the numbers further:
According to the numbers given, In 2005 there were 3065 jury convictions and 430 jury acquittals in federal court, making a total of 3,495 federal jury trials and a conviction rate of 88%. Under the “sexual abuse” category, there were 24 jury trials that ended in a conviction and 8 that ended in an acquittal. The sample size is small, but it gives a conviction rate of 75%.
Which tells me… basically nothing, because the sample size is very small, most rape cases would be prosecuted in state courts rather than federal courts, and cases that actually go to trial are unusual anyway because both the prosecution and the defense have to prefer a trial to the alternatives of not taking the case to court at all or pleading guilty.
Actually, the traditional part of the wedding vows (in America, at least, and I assume other English-speaking countries) referring to sexual obligation—“serve”—faded into disuse well before spousal rape became criminalized, and in any event a key feature of sexual consent is that it can be withdrawn at any time.
There are of course enforcement problems which may complicate cases where there’s no other physical abuse, but pertaining to my original point, at least, I’d contend that most late moderns would agree that spousal rape is both logically coherent and evil, because it meets the “consent” conception of rape, whereas most earlier peoples would not, operating as they were from a property crime framework.
it’s easy to accuse someone of rape once they’ve had sex with you, it’s a very serious charge, and courts tend to side with the alleged victim.
There are certainly those who would dispute claims 1 and 3. (And obviously, in doing so, use a broader definition of “easy” which includes cultural norms and foreseeable consequences.)
To clarify: do you and your wife believe that the presumption of consent that marriage entails is sufficient to overcome any potential evidence of rape, or merely that it is sufficient to raise the bar significantly?
If the latter, I agree; if the former, I disagree. Your comment seems to suggest the former, but you may simply be indulging in entertaining hyperbole.
Thought experiment: suppose I accuse person X of nonconsensually forcing sex on me, and X shamefacedly admits that they in fact did so, and medical experts testify that I show medical signs of forcible sex with X, and my prior history seems to a jury of my peers inconsistent with having consented to forcible sex, would you generally consider that sufficient evidence to justify the claim that X raped me? Does that evaluation change if X is my husband?
suppose I accuse person X of nonconsensually forcing sex on me, and X shamefacedly admits that they in fact did so, and medical experts testify that I show medical signs of forcible sex with X, and my prior history seems to a jury of my peers inconsistent with having consented to forcible sex, would you generally consider that sufficient evidence to justify the claim that X raped me?
Yes, I’d generally consider “X shamefacedly admits that they in fact did so” or everything else severally (weakly) sufficient to justify that claim.
Does that evaluation change if X is my husband?
My presumption above is that ‘nonconsentual sex’ and ‘marriage’ are inconsistent. If X is your spouse, then X was asserting something inconsistent in X’s shamefaced admission, and you were in your accusation. If you want to withdraw your consent, then get a divorce.
Well, even if marriage was a contract to say “I want to have sex with you” it’s a little ridiculous for it to say “I want to have sex with you whenever you want.”
No, that’s called sex slavery. Maybe that’s what marriage used to be, but it isn’t anymore.
Wives aren’t obligated to always be in the mood for sex (this could easily be gender swapped by the way). That is not their purpose.
It’s even more ridiculous when you consider that sex is physically exhausting (for both genders). It’s completely unrealistic to expect someone to do something like that whenever you want.
Not unless sex slaves are able to divorce you and take most of your stuff if you piss them off.
The ability to terminate a contract at will means that the other party can coerce you to the extent that you value the continuation of the contract more than they do. Calling a marriage contract with a rather unusual “always willing to have sex” clause sex slavery is a massive insult to sex slaves.
Within the limits of how efficiently of how divorce is set up in the contract, effectively the contract in question is actually equivalent to “have sex with me enough or the relationship is over”. Basically that is how relationships work implicitly anyway. You just aren’t supposed to talk about it that overtly (because that almost never works.) Basically the arrangement sounds a whole lot worse than it is because we aren’t used to thinking about relationships in terms that fully account for all our game theoretic options.
Modulo the time that it takes to implement contract termination, I suppose. That is, the situation where my husband gets to have sex with me whenever he wants unless I say “I’m terminating our marriage!” (at which point he no longer does) is different from the situation where he gets to have sex with me whenever he wants unless I have previously spent some non-zero amount of time obtaining a divorce decree. In the latter case, my husband can coerce me regardless of our relative valuation of the contract.
It’s also worth noting that, even if we posit that the marriage contract (M1) implies an obligation for sex on demand, it also involves enough other clauses as well that it is easy to imagine a second kind of contract, M2, that was almost indistinguishable from M1 except that it did not include such an obligation. One could imagine a culture that started out with a cultural norm of M1 for marriages, and later came to develop a cultural norm for M2 instead.
If that culture were truly foolish, it might even allow/encourage couples to sign a marriage contract without actually specifying what obligations it entailed… or, even more absurdly, having the contractual obligations vary as the couple moved around the country, or as time went by, based on changes in local or federal law. In such an absurd scenario, it’s entirely possible that some people would think they’d signed an M1 contract while others—perhaps even their spouses—thought they’d signed an M2 contract. There might even be no discernible fact of the matter.
When a contractual relationship gets that implicitly defined by cultural norms and social expectations and historical remnants, and gets embedded in a culture with conflicting norms and expectations, it becomes a very non-prototypical example of a contractual relationship, and it’s perhaps best to stop expecting my intuitions about contracts to apply to it cleanly.
When a contractual relationship gets that implicitly defined by cultural norms and social expectations and historical remnants, and gets embedded in a culture with conflicting norms and expectations, it becomes a very non-prototypical example of a contractual relationship, and it’s perhaps best to stop expecting my intuitions about contracts to apply to it cleanly.
When a contractual relationship gets that implicitly defined by cultural norms and social expectations and historical remnants, and gets embedded in a culture with conflicting norms and expectations, it becomes a very non-prototypical example of a contractual relationship, and it’s perhaps best to avoid getting entangled in that kind of contractual relationship. (Unless you are somehow sure that the contract is in your favor.)
Mind you in my experience actually telling a girlfriend that in the general case getting married seems to be a terrible idea meets with mixed results. Something to do with wanting to play dress-ups with white dresses and so forth. :P
Whether it’s best for me to avoid getting entangled in it depends entirely on the potential benefits of that contractual relationship, the potential costs, and the likelihood of those benefits and costs. (This includes both costs/benefits to me and costs/benefits to my partner, insofar as my partner’s state is valuable.)
Personally, I judge my condition after getting entangled in such a relationship superior to my state prior to having done so. I strongly suspect my husband does the same.
I’ve heard that in Italy wives were legally required to have sex with their husbands whenever they wanted (and husbands to economically maintain wives) until not-so-long ago (the early 20th century IIRC), so I wouldn’t be very surprised if that were still the case in at least one country.
Okay, let’s go ahead and make that correction then, since I find gender distasteful:
No, that’s called sex slavery. Maybe that’s what marriage used to be, but it isn’t anymore.
One’s spouse isn’t obligated to always be in the mood for sex. That is not their purpose.
I think my earlier assertion was that they’d given consent to have sex, regardless of whether they’re in the mood for it. But assuming that distinction doesn’t run very deep, what do you think the purpose of marriage is?
And how is it slavery if it is entirely voluntary and can be opted-out of?
ETA: (responding to edits)
It’s even more ridiculous when you consider that sex is physically exhausting (for both genders). It’s completely unrealistic to expect someone to do something like that whenever you want.
That’s crazy—people expect their spouses to lots of exhausting things for them on demand; cook dinner, do the laundry, work a day job, take out the garbage, help move furniture… it doesn’t seem unrealistic at all.
And how is it slavery if it is entirely voluntary and can be opted-out of?
All right, slavery is too strong.
I think my earlier assertion was that they’d given consent to have sex, regardless of whether they’re in the mood for it. But assuming that distinction doesn’t run very deep, what do you think the purpose of marriage is?
Oh? How far does this go? Can you demand any kind of sex from them? What if you are physically exhausted? What if it becomes really painful (and not in a good way)? Nothing matters? Nope, you already gave consent. I have the document. Can’t backtrack now!
Hell, if that’s what marriage entails, then I think a lot fewer people would ever get married. I certainly wouldn’t want to. And I do want to have sex all the time. But I also want the ability to say no.
That’s crazy—people expect their spouses to lots of exhausting things for them on demand; cook dinner, do the laundry, work a day job, take out the garbage, help move furniture… it doesn’t seem unrealistic at all.
No, I mean like physically exhausting. Like running and stuff like that. It makes you sweat, raises heartrate. It becomes painful after certain periods of time.
I can’t conceive of that situation for myself. My wife and I wrote our own vows, and they roughly summed up to “I will try my hardest to do whatever you want me to do, and be whoever you want me to be, for eternity.” I can’t imagine wanting to marry someone who I didn’t feel that way about, or who didn’t feel that way about me. Though I can hardly imagine wanting to marry anyone other than my wife, so maybe it’s just a failure of imagination on my part.
No no no. You can’t do that. We’re talking about consent. If you are going to say “I just want to make you happy, so even though I’m not in the mood I’ll still have sex with you,” then that is consent. You are consenting. We are not talking about that. If that is your thought process, then that is still consent.
What we’re talking about is if you say “No, I don’t want to have sex with you right now,” and your wife has sex with you anyway.
What we’re talking about is if you say “No, I don’t want to have sex with you right now,” and your wife says “I don’t care,” and has sex with you anyway.
Note that the premise here requires elaboration. thomblake may be stating that he would not say “No, I don’t want to have sex with you right now,” and instead would say something like “having sex right now would cause me to be late for work” or “having sex right now would be painful for me” (notice the lack of a ‘no’). His wife could either retract the request or not, and if she doesn’t he has precommitted to accepting whatever consequences come from having sex with her then.
That is, the root question is whether or not there should be a spousal sex veto, and it sounds like thomblake thinks that, for his relationship at least, there shouldn’t be.
That is, the root question is whether or not there should be a spousal sex veto, and it sounds like thomblake thinks that, for his relationship at least, there shouldn’t be.
Indeed. And it’s nicely symmetric with the demands of monogamy. I could totally see those in less-monogamous situations going without that stipulation, but it’s downright inhumane to simultaneously demand “You can’t have sex with anyone but me” and “You can’t have sex with me”.
[I]’s downright inhumane to simultaneously demand “You can’t have sex with anyone but me” and “You can’t have sex with me”.
While this seems to be egregiously overstating the case, I think it’s an important point made explicit that has thus-far (as far as I can tell) been unaddressed.
If I’ve understood you correctly, you consider “You can’t have sex with me right now” a subset of “You can’t have sex with me” for purposes of that statement… yes?
If so, your understanding of “inhumane” is very different from mine.
“You can’t have sex with me right now” a subset of “You can’t have sex with me” for purposes of that statement… yes?
Indeed—thus “simultaneously”. “You can’t have sex with anyone but me except when I don’t want to” is much more reasonable, if one wants to be that way.
Understood, but your understanding of “inhumane” is still very different from mine. “You can’t have sex with anyone right this minute, including me” doesn’t strike me as an inhumane thing to say to one’s partner.
Fair enough. In that case, we seem to actually disagree about the properties of saying “You can’t have sex with anyone right this minute, including me.”
At least, I believe it’s possible to say that while continuing to possess compassion for misery and suffering (1) and without being cruel, and if I’ve understood you correctly you don’t believe that’s possible. This surprises me, but I’ll take your word for it.
(1) EDIT: Insofar as I possess compassion for misery and suffering as a baseline, anyway. I won’t defend the assertion that I do, should anyone be inclined to challenge it, merely point out that if I don’t then everything I do is inhumane and it’s weird to single out this example.
I’d think that the expected duration of the refusal matters.
From my point of view, a refusal for an evening is (barring extraordinary circumstances) a fairly minor restriction.
From my point of view a refusal for a decade would count as cruel. (barring extraordinary circumstances
I’d expect it to terminate most marriages).
f you are unwilling to grant that the distinction between “not having sex right this minute” and “not having sex ever” matters in this context, and act accordingly, then I’ll agree with #1 and drop out of the discussion here.
It would seem a little cruel to just come out with it apropos of nothing. But there are certainly times where saying it wouldn’t be at all cruel. Like, for example, if your monogamous partner asks you “Should I have sex with you or go have sex with Alice?”
I certainly had in mind a situation more like the latter than the former.
That said… if my husband said that to me, say, while he was dropping me off at work, I would probably (after some confusion) ask him if he thought it likely that I would have had sex with someone else that minute had he not mentioned that.
If he said he did, my primary emotional reaction would be concerned bewilderment… it would imply that we were suffering from a relationship disconnect the scope of which I needed much more data to reliably estimate. If he said he didn’t, I would probably smile and say “Well, all right then” and go to work, and my primary emotional reaction would be amused puzzlement.
In neither case would I be inclined to think of it as cruel. (In the second case, I suppose I would ultimately file it as “it was probably funnier in his head”)
Yeah, fair enough. If someone says something like this apropos of nothing, that’s (significant but not overwhelming) evidence in favor of cruelty, which is the important question; I agree with you. (I was distracted by the entertainment value of my example.)
If someone says, “I will have sex with you once every 20 years,” that seems to fall closer to permanent given typical sex drives (and life spans) while strictly speaking being temporary, no?
On the other hand, of course, “hang on 10 seconds” is basically nothing like a permanent refusal.
Agreed, “temporary” is more usefully applied in this case as fuzzy property, and in particular should as you say be considered in the context of the sex drives of the people involved.
Ignoring morals and legality for a moment, this sounds logistically infeasible. The reason I brought up the fact that sex is physically exhausting, is sometimes it really is difficult (and painful) to have sex. Life can get in the way. Women have periods. People take vacations and business trips. People get sick. This sounds more straining on a relationship than anything. Does monogamy drop when such things occur? Maybe it could work if both people have low sex drives.
What we’re talking about is if you say “No, I don’t want to have sex with you right now,” and your wife says “I don’t care,” and has sex with you anyway.
Right, and I’m saying that it doesn’t make any sense to be in that position, and if you find yourself in that position and object to it, then you should get a divorce, not cry rape.
You miss the point thomblake is making entirely. In counterfactual in question it is not rape. Because there is consent—formal, legal and certified consent. For it to be rape that consent would need to be withdrawn—which is what thomblake said you do.
You can say people don’t have the right to enter into a contract where they have given consent to have sex until they decide they don’t want to continue in the contract. You can argue that such contracts are bad and should be illegal (like they are now). But if someone is, in fact, operating within such a contract then just isn’t rape. So they don’t say “No! Don’t rape me!” they say “I divorce you!”. Then the former partner has to stop or it is rape. Because these are grown ups who understand the contracts they have entered into and know how to make choices within that framework.
I mean, you do realize they will almost always get a divorce if they file rape charges...
Yes, I should hope so. Though I think the better solution is to say “oops, I guess I didn’t really mean to be in that arrangement” and obtain a divorce as soon as possible.
Though clearly there are different ideas at play here about just what the arrangement entailed in the first place.
Let me put it this way. You’re saying that “it doesn’t make any sense to be in that position.” But that is exactly and precisely the situation we’re describing. So it makes me think you either misunderstand the issue or simply lack imagination about real world events.
Edit: Clearly relationships are going to be different for different people. I personally would never expect my spouse to always give in to my desires or the other way around. And the idea that I would be legally obligated to is strange to me.
You’re saying that “it doesn’t make any sense to be in that position.” But that is exactly and precisely the situation we’re describing.
It does not make sense to be in a situation where you agreed publicly to X, and then were confused and surprised enough when X happened that you felt the need to press charges for what is considered one of the worst crimes in existence. I could see noting that a misunderstanding had occurred, even being angry if you thought you were misled deliberately, and opting out of the arrangement, but that seems to go way too far.
you … misunderstand the issue
It’s possible. I thought we already established that we were talking about different possible arrangements and there’s not much more to say about it, but maybe I’m missing something important.
Probably the correct solution is to discuss with a potential spouse precisely what you are each agreeing to.
Agreed. Though the bottleneck here is finding a way to stipulate that sort of thing in a way that is agreeable to say in front of your grandmother.
And as long as “marital rape” is a concept that’s allowed to exist, there’s little you can do to eliminate its risk. Though I suppose the folly there is marrying someone you can’t trust.
Agreed. Though the bottleneck here is finding a way to stipulate that sort of thing in a way that is agreeable to say in front of your grandmother.
I don’t know that the entire contract needs to be public. If you are worried about someone playing fast and loose with that, you probably shouldn’t be marrying them. If you still want to, you could recite the SHA hash or something.
There is already basically no punishment for breaking the contract that is marriage; just social pressure. Do you really think that keeping the agreement secret is desirable?
(Although I guess that ”… till death do us part. Also, we will engage in 4b8cfc115af495125c084f26210ab91158f1ed34 if either spouse wants to” may work. Note that there are downsides to using a hash, like your friends trying out a few (in)appropriate words… but this is not a discussion of appropriate cryptographic techniques.)
And need not be limited to sexuality; handling of finances is a common source of strife and may not be any business of many in the audience, for instance.
It’s ridiculous to assume that it must mean the latter when we generally take it to mean the former (although even then, not always). I am not sure it is ridiculous to allow both options, but confusing the two is harmful.
Indeed. I was clarifying, more than correcting. I think the perspective you introduced (or made explicit, if that’s what wedrifid was thinking) is interesting and relevant to the discussion.
What is the intended message of the Deuteronomy quote? It seems to imply that rape implies non-consent. In this case the relevance of the rape is that the betrothed rape victim is excused from punishment for the crime of adultery.
Right, consent is relevant insofar as it determines whether the maiden is complicit in the harm to her fiance. But it’s not a determinant of whether harm was done, or even the severity of it. If you have sex with another man’s wife or fiance, you die. If she’s not betrothed then the pottery barn rule kicks in and you make restitution to her owner. If there’s contested ownership (e.g., if she’s your slave but someone else’s fiancee) you pay a fine (Leviticus 19:20-22.)
In all cases the person whose consentH^H^H^H^H^H injury matters is not that of the woman; it’s that of the man who owns her.
In all cases the person whose consent matters is not that of the woman; it’s that of the man who owns her.
That’s certainly not the case in the passage quoted here. In fact in no place in the passage is the fiance, husband or father even able to give consent. These particular rules apply even if for some reason the fiance or husband said “go for your life, she’s yours for the taking”. The only consent that is mentioned at all is the consent of the betrothed damsel, the giving of which will get her killed alongside her lover—it is male consent that does not happen to matter at all.
The issues you have with sexism in these collections of religious text seem to be overshadowing what this passage has to say about rape. (And those issues may be valid and important in their own right as independent subjects!)
That does seem likely to be the reason there were such strict laws against adultery. Robin Hanson explores why adultery (and so cuckoldry) is a more significant issue for males.
even with consent you can still have statutory rape, though it’s debatable whether that’s a “natural” subcategory of rape
Which seems ridiculous to me. And that isn’t an objection with respect to people should being punished for what is called statuary rape. It is an objection to the crime against language!
I’d say it falls naturally out of the construction of consent, actually. Looks pretty different from a consequential perspective, but from a deontological one the only relevant problems show up around the consent-capable/consent-incapable border, or relate to what to do when both partners are considered incapable—none of which is much of a surprise if you’re using a consent criterion. I’m pretty sure there’s similar strangeness in contract law.
There’s some more or less analogous stuff going on in the earlier property-crime construction, too.
(also, even with consent you can still have statutory rape, though it’s debatable whether that’s a “natural” subcategory of rape)
If I’m not mistaken statutory rape is based on the age of consent. The law is claiming that the people do not have the right to consent to such acts, much in the same way that children many times do not understand what is happening in cases of pedophilia.
Specific laws and ages of consent have problems and flaws, of course. But when you say “even with consent,” that is what people are disagreeing about. Do they really have consent?
Not True consent. Because we want to call the sex ‘rape’ and rape is forcing someone to have sex with you without consent. So what they did when they said “I want you baby. #$%# me now.” then tore of the clothes of the ‘rapist’ and forced them down on the bed couldn’t have been consent. Consent in this context must mean “whatever it takes for me to not call the act rape”.
Repeated disclaimer: This isn’t a claim about morality or what punishment is appropriate for any given sexual act. It’s about word use!
Can you clarify this? I don’t understand your point on rape. Even in the old days, I’m pretty sure rape implied not-consent...
Is the idea of consent really that modern?
Deuteronomy:
Note also the shockingly late dates at which marital rape has been criminalized (where it has.) As best I can tell none predate 1922, and most were much later.
Indeed, in the US the last state was North Carolina in 1993, and even still it tends to be a lesser offense (assault, battery, or spousal abuse). wikipedia.
Of course, my wife and I tend to call shenanigans on the concept. Thought experiment:
At least in the case of male->female rape, it’s easy to accuse someone of rape once they’ve had sex with you, it’s a very serious charge, and courts tend to side with the alleged victim. So someone who didn’t want their life ruined (jail time, permanent sex offender registry, etc.) would do well to make certain sure they can establish that consent was given. Various methods would work to some degree—signed documents, video tapes, witnesses, the presence of a government official...
As ridiculous as it would seem to get all of those things together for the recording of consent for sex, it so happens we actually do have an institution that incorporates all of those things—marriage. We actually have a tradition that involves getting the entirety of both families together, in front of a government official, with signed government documents, usually on videotape, where both parties agree (often speaking directly to their respective deities) that they will do certain things with each other, traditionally understood to prominently include sex. A bit over the top, but sometimes you have to do crazy things to avoid litigation.
Except now, even going through all that is insufficient to establish consent. It’s a world gone mad.
Compared to other crimes, rape is extremely difficult to prove in court.
Quick sanity check: According to RAINN (disclosure: citing an organization I’ve supported), 58% chance of a conviction for rape. A questionable Wikipedia article claims that the conviction rate for crimes in general is “84% in Texas, 82% in California, 72% in New York, 67% in North Carolina, and 59% in Florida.” (as of 2000). Thus, it seems plausible that rape is extremely difficult to prove in court.
For clarity, the RAINN stats are rape-specific and the Wikipedia stats are for all crimes, right?
Crime-specific conviction rates seem to be hard to find. A 1997 DoJ press release claims 87% conviction rates for all crimes in federal court (a skewed sample, though) and 86% for violent crime, but doesn’t break it down further. The situation could plausibly have changed in the last fourteen years due to changes in culture or forensic science.
Statistics from the California DoJ (pages 49-50; PDF file) suggest that around 67% of felony arrests (not trials) in the state result in conviction, and that that rate has slowly been increasing since the Seventies (when the number was around 45%).
Yes. Editing.
I was waiting for someone to cry foul on empirical grounds. I was arguing from popular perception. Do you have a source?
Good question.
I tried looking up statistics, but it seems like my Google-Fu has failed. I found numbers for federal court, but most of what it says is that the vast majority of federal indictments are resolved with guilty pleas, and there don’t seem to be very many rape trials in federal court.
Trying to break down the numbers further:
According to the numbers given, In 2005 there were 3065 jury convictions and 430 jury acquittals in federal court, making a total of 3,495 federal jury trials and a conviction rate of 88%. Under the “sexual abuse” category, there were 24 jury trials that ended in a conviction and 8 that ended in an acquittal. The sample size is small, but it gives a conviction rate of 75%.
Which tells me… basically nothing, because the sample size is very small, most rape cases would be prosecuted in state courts rather than federal courts, and cases that actually go to trial are unusual anyway because both the prosecution and the defense have to prefer a trial to the alternatives of not taking the case to court at all or pleading guilty.
Sigh...
Actually, the traditional part of the wedding vows (in America, at least, and I assume other English-speaking countries) referring to sexual obligation—“serve”—faded into disuse well before spousal rape became criminalized, and in any event a key feature of sexual consent is that it can be withdrawn at any time.
There are of course enforcement problems which may complicate cases where there’s no other physical abuse, but pertaining to my original point, at least, I’d contend that most late moderns would agree that spousal rape is both logically coherent and evil, because it meets the “consent” conception of rape, whereas most earlier peoples would not, operating as they were from a property crime framework.
There are certainly those who would dispute claims 1 and 3. (And obviously, in doing so, use a broader definition of “easy” which includes cultural norms and foreseeable consequences.)
Edit: that goes double for marital rape.
To clarify: do you and your wife believe that the presumption of consent that marriage entails is sufficient to overcome any potential evidence of rape, or merely that it is sufficient to raise the bar significantly?
If the latter, I agree; if the former, I disagree. Your comment seems to suggest the former, but you may simply be indulging in entertaining hyperbole.
Thought experiment: suppose I accuse person X of nonconsensually forcing sex on me, and X shamefacedly admits that they in fact did so, and medical experts testify that I show medical signs of forcible sex with X, and my prior history seems to a jury of my peers inconsistent with having consented to forcible sex, would you generally consider that sufficient evidence to justify the claim that X raped me? Does that evaluation change if X is my husband?
Yes, I’d generally consider “X shamefacedly admits that they in fact did so” or everything else severally (weakly) sufficient to justify that claim.
My presumption above is that ‘nonconsentual sex’ and ‘marriage’ are inconsistent. If X is your spouse, then X was asserting something inconsistent in X’s shamefaced admission, and you were in your accusation. If you want to withdraw your consent, then get a divorce.
OK, thanks for clarifying.
Well, even if marriage was a contract to say “I want to have sex with you” it’s a little ridiculous for it to say “I want to have sex with you whenever you want.”
Is it? Here I thought that was the point.
No, that’s called sex slavery. Maybe that’s what marriage used to be, but it isn’t anymore.
Wives aren’t obligated to always be in the mood for sex (this could easily be gender swapped by the way). That is not their purpose.
It’s even more ridiculous when you consider that sex is physically exhausting (for both genders). It’s completely unrealistic to expect someone to do something like that whenever you want.
Not unless sex slaves are able to divorce you and take most of your stuff if you piss them off.
The ability to terminate a contract at will means that the other party can coerce you to the extent that you value the continuation of the contract more than they do. Calling a marriage contract with a rather unusual “always willing to have sex” clause sex slavery is a massive insult to sex slaves.
Within the limits of how efficiently of how divorce is set up in the contract, effectively the contract in question is actually equivalent to “have sex with me enough or the relationship is over”. Basically that is how relationships work implicitly anyway. You just aren’t supposed to talk about it that overtly (because that almost never works.) Basically the arrangement sounds a whole lot worse than it is because we aren’t used to thinking about relationships in terms that fully account for all our game theoretic options.
Modulo the time that it takes to implement contract termination, I suppose. That is, the situation where my husband gets to have sex with me whenever he wants unless I say “I’m terminating our marriage!” (at which point he no longer does) is different from the situation where he gets to have sex with me whenever he wants unless I have previously spent some non-zero amount of time obtaining a divorce decree. In the latter case, my husband can coerce me regardless of our relative valuation of the contract.
It’s also worth noting that, even if we posit that the marriage contract (M1) implies an obligation for sex on demand, it also involves enough other clauses as well that it is easy to imagine a second kind of contract, M2, that was almost indistinguishable from M1 except that it did not include such an obligation. One could imagine a culture that started out with a cultural norm of M1 for marriages, and later came to develop a cultural norm for M2 instead.
If that culture were truly foolish, it might even allow/encourage couples to sign a marriage contract without actually specifying what obligations it entailed… or, even more absurdly, having the contractual obligations vary as the couple moved around the country, or as time went by, based on changes in local or federal law. In such an absurd scenario, it’s entirely possible that some people would think they’d signed an M1 contract while others—perhaps even their spouses—thought they’d signed an M2 contract. There might even be no discernible fact of the matter.
When a contractual relationship gets that implicitly defined by cultural norms and social expectations and historical remnants, and gets embedded in a culture with conflicting norms and expectations, it becomes a very non-prototypical example of a contractual relationship, and it’s perhaps best to stop expecting my intuitions about contracts to apply to it cleanly.
When a contractual relationship gets that implicitly defined by cultural norms and social expectations and historical remnants, and gets embedded in a culture with conflicting norms and expectations, it becomes a very non-prototypical example of a contractual relationship, and it’s perhaps best to avoid getting entangled in that kind of contractual relationship. (Unless you are somehow sure that the contract is in your favor.)
Mind you in my experience actually telling a girlfriend that in the general case getting married seems to be a terrible idea meets with mixed results. Something to do with wanting to play dress-ups with white dresses and so forth. :P
Whether it’s best for me to avoid getting entangled in it depends entirely on the potential benefits of that contractual relationship, the potential costs, and the likelihood of those benefits and costs. (This includes both costs/benefits to me and costs/benefits to my partner, insofar as my partner’s state is valuable.)
Personally, I judge my condition after getting entangled in such a relationship superior to my state prior to having done so. I strongly suspect my husband does the same.
I’ve heard that in Italy wives were legally required to have sex with their husbands whenever they wanted (and husbands to economically maintain wives) until not-so-long ago (the early 20th century IIRC), so I wouldn’t be very surprised if that were still the case in at least one country.
Okay, let’s go ahead and make that correction then, since I find gender distasteful:
I think my earlier assertion was that they’d given consent to have sex, regardless of whether they’re in the mood for it. But assuming that distinction doesn’t run very deep, what do you think the purpose of marriage is?
And how is it slavery if it is entirely voluntary and can be opted-out of?
ETA: (responding to edits)
That’s crazy—people expect their spouses to lots of exhausting things for them on demand; cook dinner, do the laundry, work a day job, take out the garbage, help move furniture… it doesn’t seem unrealistic at all.
Cold comfort for someone getting repeatedly forced to have sex while they wait for the divorce to be finalized.
It was my understanding that most divorce proceedings encourage separation early on in the process.
In some states, it is mandatory to have a period of separation prior to divorce, and having sex with your spouse will reset the timer.
All right, slavery is too strong.
Oh? How far does this go? Can you demand any kind of sex from them? What if you are physically exhausted? What if it becomes really painful (and not in a good way)? Nothing matters? Nope, you already gave consent. I have the document. Can’t backtrack now!
Hell, if that’s what marriage entails, then I think a lot fewer people would ever get married. I certainly wouldn’t want to. And I do want to have sex all the time. But I also want the ability to say no.
No, I mean like physically exhausting. Like running and stuff like that. It makes you sweat, raises heartrate. It becomes painful after certain periods of time.
I can’t conceive of that situation for myself. My wife and I wrote our own vows, and they roughly summed up to “I will try my hardest to do whatever you want me to do, and be whoever you want me to be, for eternity.” I can’t imagine wanting to marry someone who I didn’t feel that way about, or who didn’t feel that way about me. Though I can hardly imagine wanting to marry anyone other than my wife, so maybe it’s just a failure of imagination on my part.
No no no. You can’t do that. We’re talking about consent. If you are going to say “I just want to make you happy, so even though I’m not in the mood I’ll still have sex with you,” then that is consent. You are consenting. We are not talking about that. If that is your thought process, then that is still consent.
What we’re talking about is if you say “No, I don’t want to have sex with you right now,” and your wife has sex with you anyway.
Note that the premise here requires elaboration. thomblake may be stating that he would not say “No, I don’t want to have sex with you right now,” and instead would say something like “having sex right now would cause me to be late for work” or “having sex right now would be painful for me” (notice the lack of a ‘no’). His wife could either retract the request or not, and if she doesn’t he has precommitted to accepting whatever consequences come from having sex with her then.
That is, the root question is whether or not there should be a spousal sex veto, and it sounds like thomblake thinks that, for his relationship at least, there shouldn’t be.
Indeed. And it’s nicely symmetric with the demands of monogamy. I could totally see those in less-monogamous situations going without that stipulation, but it’s downright inhumane to simultaneously demand “You can’t have sex with anyone but me” and “You can’t have sex with me”.
While this seems to be egregiously overstating the case, I think it’s an important point made explicit that has thus-far (as far as I can tell) been unaddressed.
If I’ve understood you correctly, you consider “You can’t have sex with me right now” a subset of “You can’t have sex with me” for purposes of that statement… yes?
If so, your understanding of “inhumane” is very different from mine.
Indeed—thus “simultaneously”. “You can’t have sex with anyone but me except when I don’t want to” is much more reasonable, if one wants to be that way.
Understood, but your understanding of “inhumane” is still very different from mine. “You can’t have sex with anyone right this minute, including me” doesn’t strike me as an inhumane thing to say to one’s partner.
Possibly. Looking up the word, “without compassion for misery or suffering; cruel” pretty much matches my meaning.
Fair enough. In that case, we seem to actually disagree about the properties of saying “You can’t have sex with anyone right this minute, including me.”
At least, I believe it’s possible to say that while continuing to possess compassion for misery and suffering (1) and without being cruel, and if I’ve understood you correctly you don’t believe that’s possible. This surprises me, but I’ll take your word for it.
(1) EDIT: Insofar as I possess compassion for misery and suffering as a baseline, anyway. I won’t defend the assertion that I do, should anyone be inclined to challenge it, merely point out that if I don’t then everything I do is inhumane and it’s weird to single out this example.
Yes, that’s probably right. It seems it has to come down to either:
You don’t think not having sex constitutes misery/suffering, or
You don’t think withholding something that would alleviate misery/suffering from a loved one is cruel / lacking compassion
I’d think that the expected duration of the refusal matters. From my point of view, a refusal for an evening is (barring extraordinary circumstances) a fairly minor restriction. From my point of view a refusal for a decade would count as cruel. (barring extraordinary circumstances I’d expect it to terminate most marriages).
Or maybe 3. He thinks that having sex when one doesn’t want to constitutes misery/suffering that outweighs the misery/suffering of not having sex.
For the record: I think this is often true, but largely irrelevant to my current exchange with thomblake.
That implies 2, or else is irrelevant to the claim that it is inhumane.
ETA: For reference, I also think 3 is often true, for some reasonable methods of “weighing”.
It certainly isn’t #2.
f you are unwilling to grant that the distinction between “not having sex right this minute” and “not having sex ever” matters in this context, and act accordingly, then I’ll agree with #1 and drop out of the discussion here.
I think more typically tension arises from points on the spectrum between these extremes.
Absolutely agreed.
Fair enough.
It would seem a little cruel to just come out with it apropos of nothing. But there are certainly times where saying it wouldn’t be at all cruel. Like, for example, if your monogamous partner asks you “Should I have sex with you or go have sex with Alice?”
I certainly had in mind a situation more like the latter than the former.
That said… if my husband said that to me, say, while he was dropping me off at work, I would probably (after some confusion) ask him if he thought it likely that I would have had sex with someone else that minute had he not mentioned that.
If he said he did, my primary emotional reaction would be concerned bewilderment… it would imply that we were suffering from a relationship disconnect the scope of which I needed much more data to reliably estimate. If he said he didn’t, I would probably smile and say “Well, all right then” and go to work, and my primary emotional reaction would be amused puzzlement.
In neither case would I be inclined to think of it as cruel. (In the second case, I suppose I would ultimately file it as “it was probably funnier in his head”)
Having an overwhelmingly low prior for your husband saying something like this for reasons that are cruel certainly helps!
Yeah, fair enough. If someone says something like this apropos of nothing, that’s (significant but not overwhelming) evidence in favor of cruelty, which is the important question; I agree with you. (I was distracted by the entertainment value of my example.)
These aren’t similar statements, in that while monogamy demands fidelity 24⁄7, refusing sex should generally be a temporary.
However, in a situation where the latter is permanent, then I agree that we have a problem.
I see no reason it should be so black and white.
If someone says, “I will have sex with you once every 20 years,” that seems to fall closer to permanent given typical sex drives (and life spans) while strictly speaking being temporary, no?
On the other hand, of course, “hang on 10 seconds” is basically nothing like a permanent refusal.
Agreed, “temporary” is more usefully applied in this case as fuzzy property, and in particular should as you say be considered in the context of the sex drives of the people involved.
Ignoring morals and legality for a moment, this sounds logistically infeasible. The reason I brought up the fact that sex is physically exhausting, is sometimes it really is difficult (and painful) to have sex. Life can get in the way. Women have periods. People take vacations and business trips. People get sick. This sounds more straining on a relationship than anything. Does monogamy drop when such things occur? Maybe it could work if both people have low sex drives.
Right, and I’m saying that it doesn’t make any sense to be in that position, and if you find yourself in that position and object to it, then you should get a divorce, not cry rape.
Because it is rape?
I mean, you do realize they will almost always get a divorce if they file rape charges...
You miss the point thomblake is making entirely. In counterfactual in question it is not rape. Because there is consent—formal, legal and certified consent. For it to be rape that consent would need to be withdrawn—which is what thomblake said you do.
You can say people don’t have the right to enter into a contract where they have given consent to have sex until they decide they don’t want to continue in the contract. You can argue that such contracts are bad and should be illegal (like they are now). But if someone is, in fact, operating within such a contract then just isn’t rape. So they don’t say “No! Don’t rape me!” they say “I divorce you!”. Then the former partner has to stop or it is rape. Because these are grown ups who understand the contracts they have entered into and know how to make choices within that framework.
Is it “they” or “you”?
Missed one. They.
That’s precisely begging the question.
Yes, I should hope so. Though I think the better solution is to say “oops, I guess I didn’t really mean to be in that arrangement” and obtain a divorce as soon as possible.
Though clearly there are different ideas at play here about just what the arrangement entailed in the first place.
Let me put it this way. You’re saying that “it doesn’t make any sense to be in that position.” But that is exactly and precisely the situation we’re describing. So it makes me think you either misunderstand the issue or simply lack imagination about real world events.
Edit: Clearly relationships are going to be different for different people. I personally would never expect my spouse to always give in to my desires or the other way around. And the idea that I would be legally obligated to is strange to me.
It does not make sense to be in a situation where you agreed publicly to X, and then were confused and surprised enough when X happened that you felt the need to press charges for what is considered one of the worst crimes in existence. I could see noting that a misunderstanding had occurred, even being angry if you thought you were misled deliberately, and opting out of the arrangement, but that seems to go way too far.
It’s possible. I thought we already established that we were talking about different possible arrangements and there’s not much more to say about it, but maybe I’m missing something important.
Probably the correct solution is to discuss with a potential spouse precisely what you are each agreeing to.
Agreed. Though the bottleneck here is finding a way to stipulate that sort of thing in a way that is agreeable to say in front of your grandmother.
And as long as “marital rape” is a concept that’s allowed to exist, there’s little you can do to eliminate its risk. Though I suppose the folly there is marrying someone you can’t trust.
I don’t know that the entire contract needs to be public. If you are worried about someone playing fast and loose with that, you probably shouldn’t be marrying them. If you still want to, you could recite the SHA hash or something.
Brilliant! I am totally using this for private contracts in the future. Is that done already?
I think I’ll prefer ECDSA for my documents. Elliptic Curves are so much sexier.
There is already basically no punishment for breaking the contract that is marriage; just social pressure. Do you really think that keeping the agreement secret is desirable?
(Although I guess that ”… till death do us part. Also, we will engage in 4b8cfc115af495125c084f26210ab91158f1ed34 if either spouse wants to” may work. Note that there are downsides to using a hash, like your friends trying out a few (in)appropriate words… but this is not a discussion of appropriate cryptographic techniques.)
Yes, that’s the scenario I was imagining. The hashed part presumably could be arbitrarily verbose and specific, thus rendering it indecipherable.
And need not be limited to sexuality; handling of finances is a common source of strife and may not be any business of many in the audience, for instance.
It’s the gist of any digital signature algorithm.
As for using it in a wedding? I’ve never been to such a ceremony, certainly...
But you already signed the contract. Like what if it happens before you get divorced?
Ridiculous? This seems to actually be rather similar to what wedrifid is describing (correct me if I’m wrong).
It’s ridiculous to assume that it must mean the latter when we generally take it to mean the former (although even then, not always). I am not sure it is ridiculous to allow both options, but confusing the two is harmful.
Okay, agreed.
Indeed. I was clarifying, more than correcting. I think the perspective you introduced (or made explicit, if that’s what wedrifid was thinking) is interesting and relevant to the discussion.
What is the intended message of the Deuteronomy quote? It seems to imply that rape implies non-consent. In this case the relevance of the rape is that the betrothed rape victim is excused from punishment for the crime of adultery.
Right, consent is relevant insofar as it determines whether the maiden is complicit in the harm to her fiance. But it’s not a determinant of whether harm was done, or even the severity of it. If you have sex with another man’s wife or fiance, you die. If she’s not betrothed then the pottery barn rule kicks in and you make restitution to her owner. If there’s contested ownership (e.g., if she’s your slave but someone else’s fiancee) you pay a fine (Leviticus 19:20-22.)
In all cases the person whose consentH^H^H^H^H^H injury matters is not that of the woman; it’s that of the man who owns her.
That’s certainly not the case in the passage quoted here. In fact in no place in the passage is the fiance, husband or father even able to give consent. These particular rules apply even if for some reason the fiance or husband said “go for your life, she’s yours for the taking”. The only consent that is mentioned at all is the consent of the betrothed damsel, the giving of which will get her killed alongside her lover—it is male consent that does not happen to matter at all.
The issues you have with sexism in these collections of religious text seem to be overshadowing what this passage has to say about rape. (And those issues may be valid and important in their own right as independent subjects!)
You’re right, consent was the wrong word to use in that context. I was being sloppy and meant that the men in question were the wronged party.
That does seem likely to be the reason there were such strict laws against adultery. Robin Hanson explores why adultery (and so cuckoldry) is a more significant issue for males.
The relevant comparison would be vandalism or theft.
Yes.
In many traditional cultures marital rape is/was not considered as rape.
(also, even with consent you can still have statutory rape, though it’s debatable whether that’s a “natural” subcategory of rape)
Which seems ridiculous to me. And that isn’t an objection with respect to people should being punished for what is called statuary rape. It is an objection to the crime against language!
Won’t somebody think of the statues?!
I know, the poor statues already get enough unwelcome deposits from seagulls and pigeons. They certainly don’t deserve any more!
I’d say it falls naturally out of the construction of consent, actually. Looks pretty different from a consequential perspective, but from a deontological one the only relevant problems show up around the consent-capable/consent-incapable border, or relate to what to do when both partners are considered incapable—none of which is much of a surprise if you’re using a consent criterion. I’m pretty sure there’s similar strangeness in contract law.
There’s some more or less analogous stuff going on in the earlier property-crime construction, too.
If I’m not mistaken statutory rape is based on the age of consent. The law is claiming that the people do not have the right to consent to such acts, much in the same way that children many times do not understand what is happening in cases of pedophilia.
Specific laws and ages of consent have problems and flaws, of course. But when you say “even with consent,” that is what people are disagreeing about. Do they really have consent?
Not True consent. Because we want to call the sex ‘rape’ and rape is forcing someone to have sex with you without consent. So what they did when they said “I want you baby. #$%# me now.” then tore of the clothes of the ‘rapist’ and forced them down on the bed couldn’t have been consent. Consent in this context must mean “whatever it takes for me to not call the act rape”.
Repeated disclaimer: This isn’t a claim about morality or what punishment is appropriate for any given sexual act. It’s about word use!