The Conflation of Legality and Morality

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.

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5 Responses to The Conflation of Legality and Morality

  1. Angela says:

    I totally agree(d) and was totally with you until you used the word “shaming”, and then I thought of slut shaming and how people in a very specific morality camp can use their majority to enact a similar social pressure against activities they see as incontrovertibly immoral, however legal. And it can actually do the exact opposite of your hopes by preventing the laxity of the law from leaving space for diversity, no? I definitely approve the sentiment, though, just worried about the consequences.

    • Leptos says:

      I think there’s a place for shame. The problem with slut isn’t that it’s an attempt to shame people for certain behavior, in my view, but rather that the shaming is done selectively and hypocritically, and toward a bad purpose. Slut shaming is done to justify horrible acts perpetrated against women, and it’s only done toward women (well, not quite only, but the bugaboos surrounding gay promiscuity are their own thing). But you can make someone feel ashamed for things that are wrong and have that be a useful social tool, and in my experience it’s the best way to get people to realize they’re being sexist/racist/otherwise bigoted.

      I think it’s okay for people to speak out, forcefully, against what they see as immoral, as long as they’re doing it honestly and fairly. I disagree that promiscuity is a blight on society, but conservatives can go ahead and argue that it is, as long as they don’t focus entirely on female promiscuity, and especially if they don’t use their tirades against female promiscuity to let rapists off the hook.

      • Angela says:

        But what recourse do we have if they *do* use it to let rapists off the hook? Counter-shaming? Does it just become a numbers game? (Thanks for replying!)

  2. Cel says:

    “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.”

    Yes, that is a simple statement of fact.

    “But just because something isn’t prosecutable doesn’t make it right.”

    No one has ever argued that this statement is false.

    Sorry, what is your point?

    The point of the article is that it’s wrong to call something rape and wrong to call someone a rapist unless their actions are actually rape, not what feminists call rape.

  3. Clarence says:

    Unfortunately, we have to defend against attempts to make “enthusiastic consent” the legal standard and heck, most of the attempts aren’t even nuanced about it.

    Fact is, as a philosophy and a guide to good sex I like enthusiastic consent, just like I like RACK or SSC for BDSM. And I guess I wouldn’t mind putting some of the problematic behaviors that result from lack of good sexual communication in the law as lesser crimes with little or no jail time. But I know that not all sex is going to be good, communication is often imperfect, and that it’s sometimes ok to “give in” just to make your partner happy provided that isn’t the norm. And those are nuances many who preach enthusiastic consent never say or aren’t aware of.

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