From Twitter, I followed a link to this post at Good Men Project. It’s offensively terrible.
The entire premise rests on the idea that you can’t call something rape unless it’s an act that fits the legal definition of rape. The author has a problem with the concept of enthusiastic consent because that is not what is required to keep sex from being prosecutable rape.
But just because something isn’t prosecutable doesn’t make it right. There are some good reasons to define crimes narrowly: free speech can be impeded by expansive gate speech laws, for instance, and overly broad rape laws might result in the conviction of innocent people. But if someone hurls racial slurs, we know that behavior is wrong. And even if we don’t want our government to prosecute the speaker, we should feel free to tell that speaker to shut the fuck up and stop being such a racist shitbag.
Similarly, enthusiastic consent is the proper requirement for sex. It’s not hard to make sure your partner is as eager to have sex as you are, and even if we don’t require enthusiastic consent for legal sex, we should require it for moral sex. And shaming those who act immorally while skirting the line of what is legal is not wrong. In fact, it’s one of the best ways we have to make people acutely aware of what rape is and how not to be a rapist.
Criminal law exists to define what acts we will have the government punish someone for. But it has nothing to do with what we would criticize someone for. This bullshit conflation came up in another context recently, with redditors complaining that certain kinds of child porn are legally permissible, so everyone should stop trying to get Reddit to remove all the child porn from its site. But just because freedom of expression has carved out areas where child pornography laws do not touch does not mean those works have to be accepted by society.
There are a lot of things I can do without being arrested. I can lie to my friends, call strangers obscene names, and fart in elevators. None of those are crimes. But if I fart in an elevator and respond to everyone telling me I’m an asshole by saying, “Hey, it’s legal!”, I’ll be laughed at for making such a fatuous argument. The same thing goes for rape and child porn apologists.