Reason and Guesswork in the Definition of Rape

Abstract

I want to thank Professors Berger, Thomas, and Wertheimer for their generous remarks. Our few disagreements are all either trivial or adequately discussed in our respective essays. But I will correct a couple of minor misimpressions that I may have created. I agree with Professor Wertheimer that (at least in most contexts) consent is better understood in objective rather than subjective terms. I think that my analysis suggested this, but my terminology probably did not. Perhaps I should have said “lack of desire” instead of “subjective nonconsent.” Concerning drinking, I’m not sure that Wertheimer and I disagree at all, except (apparently) in our hunches about whether, in a “substantial” number of drunken-victim cases, the victim is wholly passive. Naturally, I welcome Professor Berger’s graceful retraction of her remarks about Alston. Professor Berger points out that Schulhofer’s parable about the doctor is not essential to the case for an affirmative-consent rule. I agree that it is not essential, but it may be decisive. At least in the abstract, everyone favors an affirmativeconsent rule in the surgical context. Therefore, if Schulhofer’s analogy is valid, it follows that the same rule should be adopted in the sexual context. Professor Schulhofer himself goes so far as to suggest that the procedure for consent to a rectal probe is analogous to the proper procedure for consent to sex. In other words, he