Ethics! Module 22: Sexual Consent

Photo: Colleen Hayes / NBC.

Content Warning

The following module includes vivid examples of and discussion about sexual assault.

As we have seen, a core feature of Kantian Ethics is that we must respect each other’s free use of reason. Such respect for individual autonomy is embodied in rational judgment and informed consent while it is violated through coercion, deception, and other forms of manipulation. However, consider the situation where an autonomous adult voluntary chooses to impair their own judgment, say through drinking heavy amounts of alcohol, and then they have a regrettable sexual encounter with a stranger. Is consent to sex possible in such a scenario? Or is a person responsible for such decisions? Is this rape or bad sex?

With these questions in mind, there 5 learning outcomes for this module. When you complete it, you will be able to…

Define the actus reus and mens rea elements of rape,
Apply those two elements to different scenarios,
Compare and contrast the women’s responsibility and communicative sexuality analyses of impaired sex,
Summarize Nicholas Dixon’s argument defending the communicative sexuality analysis, and
Reflect on what you consider to be the appropriate responsibilities of individuals when it comes to sex while intoxicated.

Read & Annotate This:

Alcohol and Rape

Context

In his article, Nicholas Dixon (2001) has us consider the following scenario:

Imagine … a college student who gets very drunk at a party. Her blood alcohol level is well above the legal limit for driving. She is slurring her words and is unsteady on her feet, but she knows where she is and with whom she is speaking or dancing. [Dixon, 2001, p. 343]

In such a state of intoxication and moderately impaired judgement, can that student consent to sex? If not, would it be rape if someone had sex with her?

These are the questions that Dixon explores. Ultimately, Dixon argues that when a person is drunk, someone else can never be really sure whether or not that person consents to sex. As a result, one should absolutely refrain from having sexual intercourse with a person who is intoxicated and whose judgment isn’t what it might normally be.

Reading Questions

As you read, keep these questions in mind:

At the beginning of his article, Nicholas Dixon (on the top of page 342) clearly accepts that “No means no”, where it is rape if you try to have sex with someone who clearly indicates they do not want to have sex. Now consider “Yes means yes”, where consent to sex is only given when both partners explicitly say they want to have sex with each other. By the end of the article, do you think Dixon would be satisfied with a “Yes means yes” approach to consent?
What are the actus reus and mens rea elements of rape? Do you agree with Dixon that both are required for a sexual encounter to be an instance of rape?
According to Dixon, why does the “Fraternity Gang Rape” satisfy both actus reus and mens rea while the “Regretted Sexual Encounter” satisfies neither? Why is Dixon presenting these two cases? How does he use them later on in his article?
Suppose someone encourages a woman to drink alcohol for the purpose of having sex with her. The woman drinks heavily, they have sex, and the woman feels violated afterwards. Why does Dixon believe that, in this situation, the charge of rape may indeed be compelling?
What is the women’s responsibility analysis of impaired sex? What does it mean to “respect women’s status as agents” (Dixon, 2001, p. 345)? What “positive duty of autonomous people” (Dixon, 2001, p. 345) follows from this?
What is the communicative sexuality analysis of impaired sex? Under what circumstances does this analysis say it is OK to have sex?
Dixon focuses exclusively on men as perpetrators and women as their victims. Why do you think Dixon specifies gender in the ways that he does? Does it really make a difference to Dixon’s arguments if the gender identities are swapped, or otherwise different? Why or why not?

Although I strongly suggest that you write out brief answers to these questions, you do not have to turn in written responses. You do, however, need to be prepared to answer questions like these on module quizzes and the unit exams.