Rape, recklessness and sexist ideology

The standard way to distinguish between negligence and recklessness is in terms of the agent’s awareness of the risk he is taking. An agent who knows that there is a risk of harm is reckless, an agent who does not know (leaving aside for now whether the belief is reasonable or not) is negligent. Antony Duff argues that we should amend this slightly – What renders an agent reckless is not caring enough about a risk. Duff’s amendment suggests, very plausibly, that mere lack of awareness is not what really matters morally. What matters, rather, is why an agent is not aware. This is taken for granted in the background conditions for negligence – which, for example, should be distinguished from stupidity. An agent may not be aware of a risk because she is not cognitively capable of such awareness. The background condition for negligence is that an agent could have been aware of the risk, but is not. So if an agent could have been aware of a risk, but is not because she was too lazy to look out the window, or check her calendar, or whatever, if, in other words, the reason that she is not aware of the risk is that she does not care enough, she should count as acting recklessly rather than negligently. I argue that there is something in Duff’s view to be rescued here. The rapist who does not understand or accept sexual refusal is not reckless if he has no awareness at any level of the relevant descriptive and normative facts. However, he should not be seen as negligent either. The structure of the situation is such that his ignorance is systematic, not one off. I argue that it is an important feature of negligence that it is one off, that it is not connected to a system of oppression. This gives us a justification for moralizing the ‘reasonable belief’ requirement in sexual consent cases. Even when a belief is reasonable by epistemic standards, it may be unreasonable by moral standards. The overall point here is that in a society riven by sexism, the essential definition of rape must advert to reasonable moral beliefs rather than reasonable epistemic beliefs.