Erik Anderson

Feminists are divided on whether consent should be employed in legal definitions of rape. Catharine MacKinnon has criticized the usefulness of consent in enabling legal systems to recognize and prosecute instances of rape (MacKinnon 1989, 2005, 2016). In a recent article in this journal, Lisa H. Schwartzman defends the use of affirmative consent in rape law against MacKinnon’s critique (Schwartzman 2019). In contrast to MacKinnon, Schwartzman claims our understanding of rape must include both force and consent components. In this paper, I will argue in agreement with Schwartzman and against MacKinnon that the legal definition of rape should include an affirmative consent component. I will take Schwartzman’s discussion as my point of departure and consider whether she has responded adequately to MacKinnon’s criticisms of consent. I will argue that her responses are not fully adequate. In particular, she has not successfully rebutted the argument that an appeal to consent is unnecessary once we have accepted an expanded definition of coercion. I will then provide a more affirmative defense of affirmative consent in response to MacKinnon’s most challenging criticism.

The “new natural lawyers” (NNLs) are a prolific group of philosophers, theologians, and political theorists that includes John Finnis, Robert George, Patrick Lee, Gerard Bradley, and Germain Grisez, among others. These thinkers have devoted themselves to developing and defending a traditional sexual ethic according to which homosexual sexual acts are immoral per se and marriage ought to remain an exclusively heterosexual institution. The sterility objection holds that the NNLs are guilty of making an arbitrary and irrational distinction between same-sex couples and sterile heterosexual couples. The NNLs believe that it is a necessary condition for two people’s being morally and legally entitled to get married that they be able to perform sexual acts that are “suited to procreating.” But sterile heterosexual couples are incapable of performing such acts. Therefore, it should follow from the NNLs’ own premises that sterile heterosexual couples are not entitled to marry. But the NNLs do not draw this conclusion. Instead, they maintain that sterile heterosexuals can marry while denying that the same is true of same-sex couples. The sterility objection claims the NNLs are being inconsistent in treating the two kinds of couples differently. Although the sterility objection has been endorsed by recent critics, I don’t think it has yet been adequately defended. The NNLs have responded by arguing that there is a sense in which the sex acts of sterile heterosexual couples are as suited to reproduction as those of fertile heterosexuals. Thus they maintain that the distinction they draw between the two kinds of couple has a rational basis. A successful defense of the sterility objection must show that this response on the part of the NNLs fails. Such is the task I undertake in this paper. I argue that the NNLs’ response fails because acts of penile-vaginal intercourse between sterile heterosexuals lack the actual causal power to produce conception that sexual acts need to be considered truly reproductive, and because their assumption that penile-vaginal intercourse always functions reproductively is bad biology.

Nicholas Wolterstorff and Christopher J. Eberle have defended the view that the ethics of liberal citizenship allows citizens to publicly support the passage of coercive laws based solely on their religious convictions. They also develop positive conceptions of virtuous citizenship that place moral limits on how citizens may appeal to their religion. The question I address in this essay is whether the limits they impose on citizens’ appeals to their religion are adequate. Since Eberle’s “ideal of conscientious engagement” provides us with the most extensive statement of these limits, it is the primary focus of my attention here. My conclusion is that in its current form, Eberle’s ideal is not constraining enough. In the first section, I argue that Eberle’s ideal does not require citizens to be self-critical enough about their religious and political commitments. In the second section, I highlight a conflict between Eberle’s ideal and the need for citizens to respect the religious freedom of their fellow citizens. I argue that the way to resolve this conflict is to adopt a more fine-grained conception of religious reasons and to hold that citizens should not rely on religious reasons of certain kinds. In the final section, I argue that laws punishing or discouraging homosexual conduct (which Eberle’s ideal would apparently allow) violate what Wolterstorff calls “the Idea of liberal democracy” and so are not the kind of proposal that virtuous citizens can defend.