Concerning the question about a definition of rape answered by Nicholas D. Smith and Alan Soble (http://www.amherst.edu/askphilosophers/question/768), I have the following comment/questions.
In all *legal* definitions of rape that I have seen, the main point of argument is not whether or not "sex" (which can generally be defined as a whole range of conduct outside of intercourse) was "wanted" or even "consented to" (as was inferred in the previous posting), but rather, whether or not specifically "penetration" (i.e. invasion of any bodily orifice by a foreign object) was "forced" against a person's "will". I don't see how there could be any argument here, though certain pedants might squabble over an acceptable generalized definition of "will".
Here is my concern: I was attacked by a stranger who broke into my apartment late at night and roused me from sleep. He punched me in the face a couple of times, then placed my pillow over my face and threatened to smother me to death if I didn't cooperate with him. He showed intention to penetrate my body, but clearly made a decision not to when he discovered that I was menstruating; yet the attack continued. In order to bring the episode to closure ASAP, I agreed to masturbate him to ejaculation (consenting, but not willingly), after which he left, but not without first stealing money from me. The charges filed against this man did not include rape because there had been no penetration. But, there was never any question about whether a crime had been committed. That's one point.
Here's another point: Because of the charges, the "wrong" authorities were handed the investigation (i.e. the burglary division, as opposed to the sex crimes division). This decreased the probability of the man being caught (he was not), and a week later, my roommate was raped according to the legal definition in our apartment while I was at work; probably by the same man, from her description.
According to the answers to the question I referred to above, it sounds like you are suggesting that I am mistaken in thinking that agreeing to the unwanted behavior with the intention of preventing further harm to myself and preventing myself from being forced to harm my attacker in some way was a morally positive act. I consented not out of romantic love for another, not out of vindictiveness, and not for masochistic reasons, but out of self preservation and a sense of compassion for a person who appeared to be deeply troubled. Are you implying that since I consented, a violation against me had not been committed? If so, I must disagree!
Second, because the law does not consider harmful sexual misconduct without penetration to be similar to rape (it defines such misconduct as "assault", which, in the state in which I was attacked, is a lesser charge to burglary, which is a lesser charge to rape!), is it not immoral and/or unethical NOT to consider such misconduct to be carried out with similar intent as with rape and legislate it as such? For example, doing so may have helped the authorities catch this man before he was able to rape my roommate or anyone else; and doing so would have afforded me the same rights and allowed me access to the some of the same needed services that my roommate was automatically offered as a legally defined "victim of rape." Likewise, if this man had been caught and convicted only of the charges stemming from his case with me, he would have been closed out of certain pertinent therapies simply because his violation was not considered a sex crime.
Rape is legally defined solely by action, but would it not help more people (victims and perpetrators alike) to define it by action AND intent? Isn't that how various degrees of murder are defined? Why aren't there various degrees of sexual crimes?
Read another response by Alan Soble, Jyl Gentzler