Last week I read a very interesting essay from John Gardner’s book Offences and Defences called “The Wrongness of Rape”, where the author seeks to pinpoint what exactly it is that makes rape so wrong. Everywhere in the civilized world, he tells us, we are in agreement that rape is a terrible crime that should be punished by the law. We are further in agreement that “no reasonable person could advocate” the decriminalization of rape1.
“In view of all this, one might expect it to be obvious to every reasonable person what is wrong with rape. Many…seem to imagine that this is indeed obvious, and do not give the question detailed attention.”
Gardner continues on to write that not only do many authors not consider what is wrong with rape, but they often will argue that an action should be illegal because it is similar to rape. But, Gardner asks us, if we don’t know what exactly is wrong with rape, then how do we know that being similar to it makes another action wrong? Maybe it’s similar to a part of rape that is not wrong. For example, consensual sex is fine, despite the fact that it bears obvious similarities to rape. So what is it that makes rape wrong?
We’ll just summarize some of the main points of Gardner’s discussion here, and I hope you find them as thought provoking as I did. Obviously, if you want to get the full arguments, you’ll have to read the essay yourself, and it is about 30 pages, a doctorate, and many years of teaching more nuanced and complete than my presentation will be. Additionally, I found some links online that discuss his essay a little further, if you’re interested, and I’ll include those on the bottom.
Now, as Gardner notes, you might argue that a man should not write about rape at all, and that to dissect it rationally might desensitize us to its unspeakably horrible qualities. It is true that I could never fathom how truly awful rape must be, and I definitely do not want people to become desensitized to the incredible pain involved for the victim. I’m writing about this because I don’t think most people will come across the essay, and it really is thought provoking and, I think, important. I think that’s enough to justify me passing on his insights to you.
So what makes rape wrong?
1) Rape causes terrible harm to the victim: We all know that rape can cause tremendous harm to the victim, but Gardner asks if we should really argue that rape is criminal because of the harm. What if the rape (quite unusually) takes place with no harm at all?
Say, the victim has no idea she has been raped (perhaps she has been drugged) and therefore suffers no trauma. In fact, the rapist is killed and there is no trace at all of the rape, and the victim continues her day to day life as though nothing as happened, since- as far as the world is concerned- nothing has. Would you say then that rape is OK?
Presumably not. Gardner therefore argues that rape should be considered wrong because of the act itself, and not dependent on the harm it does or does not cause.
The same applies, in Gardner’s opinion, to the argument that rape is bad because it makes the victim feel bad. A) Again, what if she does not feel bad after the rape, and B) Maybe we’re wrong that she should feel bad about it. If we don’t explain what makes rape so bad, then perhaps it is irrational for a victim to feel bad, and we should try and educate victims not to feel bad after a rape2.
Gardner argues that we must have a rational reason that victims should feel bad. So what is it?
2) Rape is a violation of the victim’s rights: But which rights? It is in the victim’s interest not to be raped, and it is her right not to be. But what makes this her interest?
You might argue it is victim’s right to deny use of her body, which she owns, to someone else. It is basically a property right then. However, Gardner argues that property rights are based on their “use-value”, that is to say, the value of things we own is determined by how much use we get out of them. When there is not much of a thing to go around, we start to ask if it’s OK for the owner of an object to waste it, or if society may have the right to step in and limit the freedom involved in ownership of property. We tend to ask “could this thing be better used by someone else?”3. If so, what if that person is the rapist who does not cause damage?4
We might avoid discussing that question by arguing that people identify with their property, so that when someone uses our property without our knowledge and consent, that person has criminally violated the victim’s sense of self.
This would make rape wrong, but not necessarily more wrong that someone coming into my house and using my CD’s without my consent, or stealing them entirely. But we all agree that rape is a much worse crime than simply stealing something valuable to another person that the victim of the theft identifies with. So what makes rape more wrong than these cases?5
3) Use and abuse of the person: In Gardner’s opinion, rape is wrong because it means we have treated a person as an object in an extreme form. Treating a person as an object is always wrong, but rape is one of the gravest forms of this crime. In this case, the rapist indeed views the victim as a kind of object or property to be used, and whether or not the victim knows about it or suffers from it, it is a terrible crime. In Gardner’s words:
“Rape, in the pure case, is the sheer use of a person. In less pure, but statistically more typical cases, this use is accompanied by violence, terror, humiliation, etc. The important point is that when someone feels terrified or humiliated by rape itself this feeling is justified. Rape is terrifying and humiliating…because the sheer use of a person…is a denial of their personhood. It is literally dehumanizing.”
Now, as I said, all of this is food for thought. The essay seems to have generated a lot of discussion, so critiques are available. For instance, Daniel Statman reviews the paper here, and he raises some very interesting questions himself, such as why rape as sheer use should be any wronger than other kinds of sheer use. A little further discussion can also be found in the essay Consent, Mistake and the Wrongfulness of Rape by Jordan Franks, which I thought was interesting, and several reviews of the book the essay is from are available on Gardner’s website.
1This quote is cited by Gardner from Feinberg, Joel, Harm to Others, 10.
2“The alternative view, that these harms are what make rape wrong, turns the victim of rape, n a way, into a victim twice over: for she is now, in her reactions to the rape, additionally a victim of irrationality, a pathological case. She has no reason to react the way she does since, absent that reaction, she was not wronged by the rapist. Here is the basic philosophical objection to MacKinnon’s (admittedly ‘political’) proposal that rape occurs ‘whenever a woman has sex and feels violated’. Pace MacKinnon, the victim’s feelings of violation must be epiphenomenal to rape, or else there is nothing in rape to give her cause to feel violated.
3Though this point hardly goes without some controversy. I can’t imagine John Locke would have any of this.
4Perhapsזה נהנה וזה לא חסר?
5Gardner anyway makes the point that the analogy from property to our bodies does not make sense. We may compare what we own to our bodies, but how can we compare ourselves to what we own? What we own is dependent on our self! This argument takes away the self that does the owning, which is problematic