I think rape encompasses two concepts. One is the event. Someone being raped. Another is the act. Someone committing rape, being a rapist. These are different. The difference is subtle, but it matters. Three situations where the undifferentiated understanding of rape breaks down.
Let’s say someone was forced to have sex. Let’s say the person who forced them was severely retarded and didn’t know what they were doing was wrong nor that the victim was not consenting. Was the victim raped? Yes. They were forced to have sex against their will. It’s rape. Is the retarded person a rapist?. On one hand they forced someone to have sex against their will. That’s rape. Someone who commits rape is a rapist. On the other hand, they didn’t not have a guilty mind (mens rea). They didn’t intend to rape someone. In this sense they aren’t a rapist. Our intuitions conflict. They are a rapist in the sense that they had sex with someone without their consent. They are not a rapist in the sense that they are a bad person who deserves to suffer/be punished.
Let’s say you go to out clubbing and you meet someone. They come home with you and you have sex. To you everything seems consensual. In reality, the person you’ve slept with had no choice in the matter. They are a prostitute and their pimp told them they had to sleep with someone that night or else. Were they raped? Yes. They couldn’t say no. Are you a rapist? Again our intuitions conflict. On one hand you did have sex with someone against their will. That makes you a rapist. On the other hand, you didn’t know or indent to do so. In the rapist as a bad person sense, you’re not a rapist.
Let’s say you’ve just married someone. You ask them if they want to have sex. They say yes and you sleep together. Thing is, the person comes from a cultural background where saying no to sex is seen as immoral/bad. Doing so can lead to being disowned, suffering acid attacks, etc… Even though they don’t want to, they say yes because they’re afraid of what might happen otherwise. Has this person been raped? Yes. Are you a rapist? Intuitively, it seems that you’re not. You didn’t know that the other person wasn’t able to say no. You didn’t intend to rape them. Then again, you forced someone to have sex. By that logic, you’re a rapist.
Our intuitions on rape conflict. I think this conflict exists because the word rape encompasses two similar but meaningfully different concepts: Rape as an event and Rape as a crime/action. Rape as an event is the concept that says rape is when someone is forced to have sex against their will. Intent is irrelevant. Culpability is irrelevant. What’s relevant is what happened. Rape as an action is the second conception of rape. It’s when someone knowingly forces someone else who they know does not consent to have sex. The two usually overlap which is why this distinction isn’t usually relevant. Still, there are cases where they don’t, and in those cases it is useful to understand that we use a single word to talk about two very different things. Without that understanding, we end up confused at best or making very serious mistakes at worst. Remember that not every rape has a rapist. Remember that there’s a difference between rape as an event and rape as a crime.