If sex were to be morally indifferent, what of rape?

1. So, last week the Chicago Tribune had an article about the Becker-Posner Blog, which quoted Becker as saying that "[m]ost blogs are personal diaries [about] sex, a lot of them." This week the topic of Becker and Posner's analysis is the so-called sexual revolution.

2. Posner suggests, in his contribution, that as sex "ceases to be considered either dangerous or important, we can expect it to become a morally indifferent activity." The implication of this for punishing rape is intriguing. The only reason I can see that rape is treated differently from any other type of assault is because it involves sex. But if sex becomes no different from any other consumer activity, it doesn't seem that rape would be morally of different quality from grabbing an ice cream cone from someone's hand.

It seems that penalties would likely be lower under both deterrence or retributive theories of punishment. If one believes that criminal punishment is for deterrence, than the optimal penalty for raping someone would likely fall to the level of detaining someone and otherwise hurting them similarly unpleasantly plus the additional benefit to the injurer of the sexual gratification (likely to be relatively low given that moral indifference of sex would occur with falling prices for sex). But if one believes that criminal punishment is retributive, though, than the retributive penalty would seem to be best equivalent to that for other assaults of the same unpleasantness. Since being raped would, by assumption, not be specially unpleasant for the victim (indeed, the victim might get some pleasure from it), the penalty would likely be substantially lower than that proper today.

More interesting, I think, are some more procedural implications: Rape shield laws and such would have little reason to exist. (As far as they exist, they seem to be based on that sex isn't morally indifferent: Someone being raped is shameful in a way that someone having food stuffed in their mouth isn't.) As such laws raise--I think even their proponents would admit--substantial concerns of fairness, their passing would be a boon.

I don't think this is very relevant to anything as we are many years from such indifference about sex.

Comments

[NP]

Now you see why so many people are queasy about the "Sexual Revolution." I think strong anti-rape laws would still make sense under a deterrence rationale even in a sexually-indifferent world, because men are much more aggressive sexually and concerned about the physical sensation of sex; plus they are stronger than women. Given the fact that rape is mostly rooted in biological realities and is a peculiarly unpleasant experience for women I think there would still be a deterrence rationale.

[The Pragmatist]

Well, the question is: Why is it "a peculiarly unpleasant experience for women"? Maybe there are some biological reasons that being raped is different from being subjected to other types of physical violence. But maybe the only reason it's more unpleasant derives from our cultural placement of sex as something special, a view which seems to be fading. This question, however, might be empirically answerable.

I still don't think that from a deterrence perspective too much would be necessary--all that's needed is to increase the cost of rape above that of buying sex plus whatever special pleasure is derived from rape.