As a Society, We’ve Failed to Deal With Rape. I Have a New Idea of How to Move Forward.

Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.

In the weeks since a former Cornell student filed a lawsuit alleging that seven members of the Chi Phi fraternity drugged and raped her in October 2024, the case has prompted an international reckoning. The Tompkins County district attorney, who declined to bring charges two years ago, has reopened the investigation and says he’ll take it to a grand jury. More broadly, the story has reignited conversations about fraternity culture, drinking, and the limitations of consent.

This story hits close to home for me. I grew up in Ithaca, graduated from Cornell, and worked for nearly six years on the university’s emergency services team, frequently responding to calls at fraternities, including Chi Phi. I’ve seen the university from multiple perspectives, and while I cherish it as an educational and research community, I was not shocked to hear of its leniency toward fraternity members. I have also studied the causes of sexual wrongdoing from multiple angles, including recently working with adolescent boys in residential treatment for sexually harmful behavior as a student intern working toward a master’s degree in social work. I am especially interested in the sexual language we do and don’t have, and how it affects our private and public discourse about sex. The Cornell case is a live example of how limited our approach to sexual justice currently is.

There’s a familiar undercurrent to the dialogue around this case: How much did she drink? Did she take the ketamine willingly? Did she consent to a threesome? What about to the activities and partners that followed? Why did she stay friendly with one of the men afterward? Can it be rape if she didn’t immediately call it rape—if she could seem to joke about it to one of the men a few days later?

These questions are all about her. And yet it is the conduct of the accused men that is potentially criminal. To be sure, the fraternity’s group Snapchat from that night, in which members allegedly texted “free pussy” and “shop still open?” has received intense condemnation. But the district attorney put it bluntly: The messages were “disgusting and vulgar and immoral,” he said, but “that did not have any relevance to the issue of whether Jane Doe consented to what was happening.”

That, I believe, is the real issue. Our language and legal framing of sexual wrongdoing direct scrutiny at the victim. We look closely at her decisions, where she went, what she did or didn’t do. We try to determine whether or not she consented. Imagine how different it would be if instead we considered the perpetrator and what efforts he did or did not make to verify his partner’s consent, and not only that, but to know and honor what she wanted.

Consent is the linchpin of our hard-won language and scaffolding of sexual ethics. But feminists and legal scholars have contended for decades that it is a necessary but insufficient standard to secure true sexual justice. Adding adjectives like affirmative and enthusiastic is well meant, but inadequate to fortify a word synonymous with permit, acquiesce, and accede.

Critics have pointed out that consent preserves the women-as-gatekeepers model of heterosexual sex, in which sex is something men want and women allow or deny. We keep elaborating consent with important new conditions (people are incapable of consent when they’re unconscious, and when they’re intoxicated, even if they’re intoxicated by their own volition), like patches we have to solder onto our gate whenever a chink is exposed by a determined invader.

What if, instead, we had a model of sex that was incompatible with invasion?

I propose considering the ideas of solicitude and consensus. Consent simply asks, “Are you OK with me doing the thing I want to do that involves your body?” Solicitude, in contrast, asks, “What do you want right now?” And consensus asks, “What do we both want? Where do our desires overlap?” Together, these concepts turn our one-way gatekeeper model of sex into something more symmetrical, and change our metaphor of where sex is located from something men must get past women’s defenses to access, to something co-created between two (or more) people.

Solicitude entails what philosopher Lois Pineau called epistemic responsibility—the responsibility to know. In her 1989 paper “Date Rape: A Feminist Analysis,” Pineau argued for normalizing communicative sexuality, where people are more concerned with “the mutuality of desire” than merely “achieving coitus,” and “their concern with fostering the desire of the other must involve an ongoing state of alertness in interpreting her responses.”

Like Pineau’s communicative sexuality, solicitude does not require people to be chatty, emotional, or tender; it is agnostic about what people should want. But it does require us to care enough to find out and honor what our potential partner wants, and doesn’t want. To expand their choices rather than constrain them to what we want.

Solicitude is not paternalism, and it is not merely having nice intentions, like wanting to give a partner pleasure. Solicitude does not mean mind-reading; it is compatible with the reality that people often don’t know what they want, or don’t communicate it perfectly. That absence of information is important and useful: The less clarity the other person can give us into their own preferences, the more careful solicitude requires us to be.

Solicitude is likely to improve the quality of sex, but it doesn’t guarantee good sex, and it doesn’t make bad sex illegal. What it could do, though, is allow us to distinguish between good-faith bad sex and bad-faith bad sex. For example, it would let us ask: Did you make a good-faith effort to understand and honor what your partner wanted—including not being your sexual partner at all?

Solicitude would also change how we assess the impact of alcohol and drugs. The role of intoxication has been central to the Cornell case, exposing New York’s “voluntary intoxication loophole” under which someone cannot currently claim they were too incapacitated to consent if they chose to consume the substances that incapacitated them. But what about the intoxication of the accused men? If it comes up at all in cases like this, we often hear the men excused with the argument that “they were drunk too.” If being drunk means the victim couldn’t consent, the logic goes, then the men shouldn’t be held responsible for what they did while drunk either.

But as a society, we have developed norms around discouraging intoxicated people from making dangerous decisions that could harm others, and we hold them accountable when they do. We designate drivers, use an Uber, or sleep it off on a friend’s couch. Alcohol impairs perception and judgment, making us less capable of accurately determining not just consent, but what someone else wants. That’s not to say that we should criminalize having sex while drunk. But if someone pursuing sex was too drunk to drive, it gives us reason to be skeptical that they were capable of solicitude—especially with an unfamiliar partner. In her memoir Know My Name, Chanel Miller captures this in a quote from Brock Turner during her sexual assault trial: “DA: ‘So the answer to my question is, you didn’t think about her?’ Brock: ‘I think it was impossible for me to think about her.’ ” Turner’s blood alcohol content was double the legal driving limit when he assaulted Miller in 2015.

In “The Wrongness of Rape,”  legal philosopher John Gardner and law professor Stephen Shute present a hypothetical case of “harmless rape,” in which a man rapes an unconscious woman in such a way that she is not harmed and never finds out. (It is hard to make this scenario as hypothetical and “harmless” as the authors intend, given the Pelicot case that came to trial in 2024, but let’s allow it as a mental exercise.) Gardner and Shute’s point is that even if it hypothetically does no harm, rape is still wrong because of the attitude and actions of the rapist. “Rape, in the pure case, is the sheer use of a person,” they write. And “all sheer use of human beings, all treatment of them merely as means, is abuse; and rape is the central case of such abuse.”

The wrongness of rape does not depend on the negative experience of the victim. It is inherent in the perpetrator’s failure to treat the victim as a person whose subjective experience and preferences matter. When we pair that with the reasonable assumption that most people, by default, would not consent to unsolicitous sex—to being used, objectified, demeaned, or having their choices limited to whatever their partner wants (the kink version of this calls for extra solicitude, not less)—we can start to see the Cornell case more clearly.

There is much we may never know about what happened that night in the Chi Phi fraternity house. But the Cornell hearing panel treated the Snapchat messages, and Jane Doe’s contemporaneous ignorance of them, as undisputed facts. So this is what we do know: One of the men advertised her availability, as a sexual body part, without her knowledge, to his fraternity brothers at large. Shortly afterward, another man reported that it wasn’t a joke, and another added “you can walk in and whip it out rn.” Someone posted a photo of her, and another man asked, “Shop still open?” A man who was in the room at the time confirmed, and added “LFG” (an abbreviation for “let’s f—ing go”). Someone broadcast that another man was “laying rn”; someone joked, “Lowkey he’s cucking all of us,” as if they were all entitled to her. “Boys come whip it out.”

This isn’t he said, she said. This is what they said, to each other, in real time, about her availability, in a conversation she wasn’t part of. Whatever the legal system ultimately decides based on current definitions of rape, these messages record the mentality that is the central wrong of rape.

Solicitude changes the questions we ask and how we interpret the evidence we do have. Under a consent framing, District Attorney Matthew Van Houten is right: The Snapchat messages are “immoral” but legally beside the point. Under a solicitude framing, they are direct evidence of the first question we should ask: Did the accused treat the alleged victim as a person worthy of consideration, or as an object available for their own ends?