Bryan Caplan  

An Awkward Question About Blurred Consent

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Lately I've repeatedly heard two claims about rape:

1. False accusations are extremely rare.

2. Consent to sex is often "blurred."

Many people seem to believe both claims.  But can they both be true? 

If consent is frequently unclear, then whether a person was raped will often be unclear.   Anytime these ambiguous circumstances lead to a rape accusation, it will be unclear whether the accusation is true or false.  And if it's unclear whether a lot of accusations are false, one cannot confidently claim that false accusations are extremely rare.

Admittedly, you could claim that while blurred consent is common, the blurry cases almost never lead to rape accusations.  But I haven't noticed anyone advancing this position.  And aren't many activists are going out of their way to urge people to make and believe accusations even when consent is blurry?




COMMENTS (32 to date)
caryatis writes:
While blurred consent is common, the blurry cases almost never lead to rape accusations. But I haven't noticed anyone advancing this position.

I've heard a number of people argue that rape is underreported, partly because of blurry cases--the victim may not be clear on what happened or may want to avoid calling it rape. And many people are reluctant to get the police involved in their problems. I can think of a number of occasions when I was the victim of a crime and didn't call the police, because I thought they wouldn't be able to help, or it wasn't a big deal, or I wanted to avoid police scrutiny.

caryatis writes:

Also, I don't really understand why anyone cares how rare false accusations are. If someone makes a credible rape accusation, it should be investigated, and if there is enough evidence, the person should be tried with the benefit of a presumption of innocence. The result in any given case should be based on the specific facts, not on statistics about the overall frequency of false accusations.

Lars P writes:

The frequency of false accusations are is not some universal constant. It depends on incentives.

If women can get any man locked up or paying damages, just by making an accusation, there will be a lot of false accusations.

If accusations are held to very high standards of evidence and accusers treated with harsh suspicion, there will be far fewer.

The percentage of accusations that are false also depend on how common rape is. If rape somehow completely disappears, 100% of accusations will be false.

Rick Hull writes:

Careful, this is where Affirmative Consent comes in.

David writes:

I don't see how both claims couldn't be true at the same time.

When people say that false accusations are very rare, they mean accusations that are made maliciously by someone who knows it's not true.

In a case of "blurred lines" on the other hand, one person can legitimately feel like they were raped and the other person justifiably thought there was consent. At the same time.
A court might judge that it wasn't rape. But I still wouldn't classify that accusation as false.

Mark V Anderson writes:

So why is all the onus on the males now? The new rule for the politically correct is that there has to be a yes all the way through the process. Next they will want notarized consent forms. Why isn't the rule that it is not rape unless one side clearly says no, except when incapacitated?

Colin writes:

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caryatis writes:

Mark Anderson, because some women end up having sex they don't want because they are too intimidated to say no. Which is not ideal behavior on the women's part, but I for one would rather have the trouble of asking for consent rather than risk pressuring someone into having sex she would find repugnant (even aside from the legal risk).

Silas Barta writes:

Easy: one can hold that it's rape when the consent is blurry. That is, one is not making a false accusation when one claims rape during a case where the consent is blurry.

I think it's fair to say that the epistemics are not symmetric here: uncertainty of concent means certainty of rape. Imagine in other contexts: "well, I wasn't sure the patient wanted his leg removed..."

JVM writes:

It's humiliating to announce that you were raped and a traumatic process to go to the authorities about it to relive the moment and be cross-examined. You would never do it unless you had a very strong case. I know of three rapes among my friends, none rested on ambiguity of consent. They were all literally cases of being overpowered. One of the victims is a strong-willed feminist, yet none of the three reported it to the authorities.

one cannot confidently claim that false accusations are extremely rare.

I actually think this is fair to say. There's no way to know. But in terms of incentives, the incentive for any individual to report is weak and the disincentives are very strong. Thats' a problem because the result of this is that a lot of predators go unchecked for decades, as we see in the Bill Cosby example.

And aren't many activists are going out of their way to urge people to make and believe accusations even when consent is blurry?

As it stands, women are extremely averse to reporting rape, so a lower reporting threshold is likely to be desirable.

If most rape accusation cases do rest on the definition of consent, that would be news to me and I'd be interested to know. But my assumption would surely not be to assume that most sexual assault accusations are based on some sort of miscommunication, as the thrust of this post seems to imply. My mental model is that reporting is more likely the more egregious and unambiguous the case, and anecdotally it appears to be low even in cases of relatively high egregiousness and low ambiguity.

Silas Barta writes:

To clarify, I think I oversimplified in most of my previous reply and have to back of the second paragraph. Nevertheless, I think that shows a view where the two are consistent.

raj writes:

Assume people are biased against making an accusation until their uncertainty exceeds a very high threshold. You have a system that handles uncertainty by producing lots of false negatives and few false positives.

Rick Hull writes:

raj,

Biased against making an accusation until uncertainty goes up? You must mean until certainty exceeds some threshold.

john hare writes:

Some of this discussion seems a bit ivory tower to me. I have been told by several parties of a number of times in which the threat of accusation was used to coerce the potentially accused. Accusations are used as well for revenge when there is a general presumption of "where there's smoke, there's fire".

I have heard also of many cases unreported. I don't know the right answer for any of this, but I have seen miscarriage of justice in multiple directions.

Tom West writes:

I don't understand why blurry consent makes false rape accusations *more* likely. Blurriness means that consent is not necessarily clear, especially if one side really wants to perceive 'yes'.

As the article made clear, there are many cases where a victim was sexually assaulted, but did not even perceive it as such. (i.e. she did not want or consent to sex, but did not perceive it as sexual assault). I'd say blurry lines prevent a large number of real accusations.

However, if *either* side did not want to have sex, then it's rape. Mis-perception is not an excuse.

However, blurriness would tend to make accusations that feel false to the accused.

Which, as Rick pointed out, is what Affirmative Consent laws are intended to address. And yes, that does mean that there'll be somewhat less sex even when both parties would like to, given the social opprobrium towards young women expressing a positive desire for sex. However, that's the cost of preventing (usually) men from committing rape without intending to.

Mark Anderson - the courts have no trouble making robbery convictions when no violence is used to induce the victim to hand over their wallet. Why should sexual assault be different?

Thomas writes:

Hold on, I thought it was well established that false rape claims are not rare, that in fact rape is at least as commonly falsely-reported as other violent crimes, and - according to some sources (including US DoJ) - up to four times more falsely-reported than other violent crimes.

The exact rate isn't known, and standards for "false" vary: lower rates emerge when "false" triggers prosecution for a false report, higher rates emerge when the standard is only that there is strong evidence that the reported event did not occur. Of course, all claims should be investigated: most reports are not false, but it's also true that false reports are not rare.

I thought it was well-known that the rarity of false rape claims was one of those feminist myths like "domestic violence peaks on Superbowl Sunday".

Based on the comments here, perhaps I'm wrong, and people didn't know that.

Bostonian writes:

Tom West wrote,
"Mark Anderson - the courts have no trouble making robbery convictions when no violence is used to induce the victim to hand over their wallet. Why should sexual assault be different?"

Most sexual encounters are consensual, but nobody gives their wallet to a stranger. Therefore if you are found with someone else's wallet, it's reasonable to assume you are guilty of theft, but if a man's DNA is found on a woman, it is not reasonable to assume rape.

Jeff writes:
Which, as Rick pointed out, is what Affirmative Consent laws are intended to address. And yes, that does mean that there'll be somewhat less sex even when both parties would like to, given the social opprobrium towards young women expressing a positive desire for sex. However, that's the cost of preventing (usually) men from committing rape without intending to.

What a strange world we live in.

Rob writes:

Mark A.

The new rule for the politically correct is that there has to be a yes all the way through the process. Next they will want notarized consent forms.

I actually like this idea. Well, not notarized, but explicit.

You know this TV cliché where they fight or agree they can't be together, and then she turns away, and he grabs her and kisses her passionately? Or the James Bond enters the former trafficked prostitute's shower without her consent?

I always thought these actions were rapey. Flirting is ambiguous and everybody should have the right not to be grabbed and kissed unless they said yes.

Hazel Meade writes:

Flirting is ambiguous and everybody should have the right not to be grabbed and kissed unless they said yes.

But what a boring world it would be if there was no possibility of spontaneously being grabbed and kissed. Isn't half the fun of a romance the possibility of NOT being entirely in control of every single thing that happens?

Tom West writes:

Bostonian - good point. Sexual assault is its own thing, and there aren't any good analogies.

Hazel - Isn't half the fun of a romance the possibility of NOT being entirely in control of every single thing that happens?

There's a lot of truth there. Unfortunately, it doesn't come without a significant cost to (mostly) women who must endure the unwanted attentions (including rape).

The question is really what is an acceptable cost to reducing unwanted sexual experiences.

As I learn more about what many, if not most, women of my wife's generation had to endure as a matter of course (especially when they're 14-20 and ripe for intimidation and emotional exploitation), the cost of Affirmative Consent seems pretty reasonable.

Jeff - What a strange world we live in

Given that acceptance is *not* the same thing as consent, but is often mistaken for it, it doesn't seem all that strange to me.

stargirlprincess writes:

"However, if *either* side did not want to have sex, then it's rape."

This is a very, very scary idea. Some time ago I was dating someone with a sex drive that far exceeded mine. The end result was that I have had a ton of sex that I did not want at all. I had sex to make him happy and sometimes because he was pestering me.

I have never been raped. Nothing even close. Alot of days I don't want to go to work, but I do. I am not a slave. Having sex you do not want is not rape unless someone is actually forcing you to have sex.

Mark Bahner writes:
What a strange world we live in

Yes, the other worlds make a lot more sense. Except Vulcan during pon farr, when things can get prrrrrretty crazy.

P.S. Oh, and Cheron. What's up with that place???

Mark V Anderson writes:
Mark Anderson, because some women end up having sex they don't want because they are too intimidated to say no. Which is not ideal behavior on the women's part, but I for one would rather have the trouble of asking for consent rather than risk pressuring someone into having sex she would find repugnant (even aside from the legal risk).

Intimidation for sex is not rape. If you mean that the man implies he will hurt her (physically) if she says no, then yes it is. But most intimidation is not that.


However, if *either* side did not want to have sex, then it's rape. Mis-perception is not an excuse.

That is absurd. And scary, as stargirl says.

I too would like to see everyone be much more explicit about their intent, instead of the terrible game playing that constantly occurs in romance. But both male and female seem to want to continue their game playing. The rape rules say that only men pay for the resulting mis-conceptions.

Tom West writes:

stargirlprincess - Indeed, my statement was incorrect. Thanks for pointing it out.

I was trying to get at the difference between consent and mere acceptance, which can easily occur due to physical or emotional coercion and tends to have long-term effects upon the victim.

Mark Anderson - The rape rules say that only men pay for the resulting mis-conceptions.

Actually, I'd say that it's likely that ten, if not one hundred, times as many women pay for the misconceptions of males, and bear the emotional and physical scars for the rest of their life.

And interestingly enough, it appears that many of the repercussions caused by sexual assault (at least according to the paper cited by Bryan above) are present regardless of whether the victim personally considered it assault or not.

Affirmative consent (especially in non-long-term-relationships) seems about as minimal a change as can be made to reducing male misperceptions. It has its costs, obviously, but the present system has a hell of a lot of costs as well.

Peter Drake writes:

Are you talking about consent being blurred at the start, or throughout. Many times it is blurred at the start, and while it never becomes an explicit question there are plenty of opportunities to gracefully decline, but instead the response is to elevate the intimacy of the encounter.

You build implied consent together.

But from that same starting point an aggressive approach may stifle objections and lead to acceptance instead of consent. The simplest difference in my mind is whether steps are taken to elevate intimacy by both parties. If one person does all the initiating between two non-long-term partners and verbal cues are unclear then it's definitely not enough consent to proceed further. The more muted the response, the more explicit consent is required.

Thomas writes:

I'm curious - seriously, now - about the difference between "affirmative consent" and "presumption of guilt" in actual practice.

If presumption of innocence is retained, then the prosecution must prove beyond a reasonable doubt that there was not consent. In effect, the standard remains "no means no".

On the other hand, if it is up to the defense to prove that there was consent (that only "yes means yes"), then a charge of sexual assault comes with a legal presumption of guilt.

Or am I missing something?

Thomas writes:

I'll add that both Bostonian and Tom West agree that "if a man's DNA is found on a woman, it is not reasonable to assume rape".

But that, it appears to me, is exactly what "yes means yes" does.

And, since consent can be withdrawn at any time after being given (notarized, on video, in writing, whatever), "yes" can only be verified after the fact, which means a man cannot know if he will be deemed to have committed a sexual assault until the woman makes up her mind afterward.

In practice, the only way to verify the "yes" would be to video the entire interaction, which raises a whole new set of issues!

Tom West writes:

Obviously nothing is going to prevent the people lying.

However, affirmative consent does mean that law abiding citizens are less likely to inadvertently assume consent on the part of their partner when no consent was intended.

Removing that would probably significantly reduce the overall amount of trauma and emotional/physical damage even if it doesn't stop a single stereotypical rape. (Not that affirmative consent doesn't have its costs, as well. Nothing is free.)

Thomas writes:

After a few conversations elsewhere, I have an hypothesis emerging on this admittedly messy topic.

First, we're NOT talking about rape or sexual assault in any traditional sense of those words (just as a tap on the arm is not "assault" in its traditional sense, although it meets the technical, legal definition). This is why there's so much disbelief about the claims put out by the Administration and by feminists.

But we ARE talking about situations where young women have sexual experiences that they afterwards bitterly regret and believe - or come to believe - they would never have had if they had been in their right minds. There are young women suddenly coming face to face, for the first time, with their own raw sex drives in places and circumstances where, this time, no-one will protect them from themselves. And there are hormone-driven young men, ready to - literally - jump on them. This is why feminists and young women are seeing such a big problem.

This "buyer's remorse" is not to be dismissed: it is real emotional suffering, and sexual experiences can have real-world consequences that include pregnancy and/or disease and/or reputational damage.

I'm a man, and I've had sexual experiences I subsequently regretted - even in the moments after they happened. In a couple of cases, I've had a few weeks to ponder whether my life could be "ruined" by what I had done in hormone-addled haste with someone who was seductive and determined (women can be sexually pushy too!). Those were rough weeks. I do have some understanding.

To a Progressive, feminist hammer, every man is a nail: if a woman is suffering, it must be a man's fault. If a young woman was not in her right mind, someone must have taken her mind from her. The young woman is encouraged not to ask herself, "how could I have done that?", but rather, "how could he have done that to me?"

I do think it desirable to ask, "how can we reduce the incidence of sexual encounters that young people subsequently regret having had?" I think that's an excellent conversation, and I think "do you think she (or he, or you) will regret this tomorrow, if you get her (or him) to do it tonight?" is a good and worthwhile question, and maybe pressing ahead when the answer is "maybe" is indeed a form of unethical behavior.

But I don't think that, just because a woman regrets what she did, it makes her partner a sexual predator, guilty of sexual assault or rape. And I don't think we should accept, encourage, or endorse that assumption.

Tom West writes:

Thomas, there's nothing "after the fact" about the cases here. We are often talking about acquiescence to threat of some sort or even inability to say no coherently rather than a physical struggle. But this is no buyer's remorse.

Granite26 writes:

Thanks for the comments guys... Lots of good things to think about from other points of view

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