A couple of weeks back in a politics tutorial, I was called upon to defend a Nozickian view of punishment as being about restitution of the victim. In particular, I was to explain how it is even possible to compensate someone for being raped. (Rape was probably a bad crime to use as an example, being rather a hot-button issue, but it wasn't me who chose it). I didn't make a very good job of it, partly because of a lack of time and because the audience I was explaining to did not understand the axioms of microeconomics. I attempted to draw a standard graph of bundles of goods, with one axis representing monetary income (or rather, the optimal bundle of goods which could be acquired at a given level of income) and the other axis representing not-getting-raped. Due to the limited time available and because this is a rather tricky topic, I didn't get any further than this, but I did just about manage to mention something which had occurred to me: that rather than phrasing it as rape, we should phrase it as "sex one would rather not have."
This isolates the sex-crime, and removes the violence, betrayal of trust, and other wrongs that go along with it. The problem is that this isn't modelling rape - it's modelling prostitution. We can quite easily say "Person X would rather not sleep with person Y, but if Y were to pay X £x in exchange for the sex, then X would accept the exchange." But this wouldn't support a hypothetical-consent defence of rape if Y were to leave £x to X after the rape. Firstly, rape is almost inevitably going to involve some element of force, intimidation, deception, concealment or some other skulduggery. Each of these could be realised in a number of ways, and I really don't feel like describing them further unless necessary.
I would not go so far as to say that such skulduggery is necessarily a part of rape, however. Certainly it's present in the majority of cases, but we can conceive of cases where it was not. Indeed, there are some hideously complicated cases. Suppose a tall, muscular guy and a petite, naive girl meet in a nightclub, head back to the guy's room after several rounds of drinks. The guy then asks consent to have sex with the girl; she has sobered up a bit and doesn't really want to, but is afraid because she's in an unfamiliar place, he's much bigger and more powerful than her, it wasn't unreasonable for him to assume that he would be sleeping with her and he's lost the chance to spend the night with anyone else, and combined with the alcohol she's afraid that he'll get angry. So she says she consents.
This guy has specifically asked for, and apparently received, consent. That alone places him above the vast majority of males engaging in casual sex. And yet, the consent could reasonably be put down to duress and is therefore highly dubious. It's hard to see exactly what the guy has done wrong, and yet he is arguably guilty of rape.
What this tells us is that we need a more nuanced discussion of rape. Not all rapes are identical; not all rapists are necessarily blameworthy. We should distinguish undesirable sex (which someone might voluntarily take part in, in exchange for other services) from the means used to procure it, and we should distinguish between different means. I think we can agree that threatening suicide in order to get someone to sleep with you is worse than assuming consent from a one-night stand, so I think we should have different terms for these.
I am not optimistic for the chances of this actually happening, for reasons which I may go into at a later date.
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