Intent, actions, reception
There are a lot of legal terms and theories related to the concepts I am going to cover here. I know a few of them, but don't know most of them, and would probably not correctly use the ones I do know, so I'm going to try to stick to plain English with some occasional explanation of my meaning.
It has come up recently in conversations about dealing with sexual assault in my local communities that some people want to strongly prioritize the impact on the victim when deciding how to deal with a person or incident. I am strongly opposed to this plan, and want to thoroughly explain why. I'm going to apologize in advance for sticking to male-aggressor rape; it's arguably more common and keeps my use of pronouns simpler. Everything I say can, of course, be applied in reverse. And I am not going to cover malicious rape here. It happens. A lot. It deserves a lot of discussion and consideration. It doesn't get as much as it deserves. That doesn't mean it's unacceptable for us to discuss OTHER things, and THIS post mostly isn't about that.
First and foremost, I will readily admit that preventing future rapes is higher on my list of priorities than avoiding mental distress for past victims. If given the choice between the two, I will choose the former. I will encourage rape victims to testify against their rapists even when I know it will cause them mental distress, because I have strong interest in that rapist being convicted and removed from society. I am aware that there are people, particularly rape victims and/or trained/professional rape counselors, who do not agree with this prioritization. If you disagree with that choice then we have fundamentally different value systems, and you should not bother replying to any of the things I say below because they are all predicated on those values.
Now, on to the terms in the title and how they apply to this post and my usage.
When I say "intent", I mean what's going on inside the head of the person initiating an act, whether that act is a handshake or a hug or groping or sex. Intent is, to me, what divides people into "good" and "evil"/"bad". It's not black and white, but a spectrum that tends towards either end. A person's internal value system and level of selfishness tie directly into their intent with regards to any specific scenario.
When I say "actions", I mean things that happen that a third party could observe. Physical actions, communications, motions. This includes things done by the recipient, such as encouragement or rejection.
When I say "reception", I mean what's going on inside the head of the person receiving an action. Pleasure, remorse, guilt, trauma, excitement, pain, etc.
These three things can intermingle, but they are fundamentally distinct (by which I mean they can be considered independent of each other, and one can easily change without the other two changing), especially from the point of view of either of the participants. Intent is something that the recipient can't know. Reception is something that the initiator can't know. Actions are the part they both experience. If you've read my writings on socialism you know I'm a firm believer in not penalizing people for things they can't know or control. That applies here, in both directions, because each participant only has information about 2/3 of these factors.
Now, a scenario. Not a hypothetical, because this happens every night in every bar in the world, but non-specific because naming names here would be counterproductive. A dozen drunk guys invite a dozen drunk girls home (with similar levels of drunkenness; situations where one party is passing out are entirely different), and everyone proceeds with non-malicious intent. All of the couples have sex, no one uses additional coercion or force, everyone participates enthusiastically, and the next morning everyone wakes up sober. One of the girls feels that she has been raped; taken advantage of in her inebriated state by someone she would not have had sex with while sober, leading to mental distress and potentially psychological trauma. To make my meaning perfectly clear, she is not making a false accusation. She does not know her partner's intent, and has experienced the exact same Actions leading to the same Reception as she would have with a partner with malicious intent. In her mind, she was raped. In the mind of her rapist, it was a well-intentioned consensual encounter, no different in any way from the other 11 encounters that happened that night, or his previous 11 drunken hookups that ended with both parties happy. (For the sake of discussion here I'm assuming a 1/12 ratio for a strong negative reception to this particular scenario. I've speculated 1/20 for the same ratio in previous posts.)
Has that one unlucky guy committed an offense that his 11 peers have not, or is his offense of greater degree than theirs? I say not. More specifically, I say that I won't treat him any differently than I treat them. How negatively I treat all of them is a separate matter, up for debate elsewhere.
Another hypothetical that I consider to be equivalent. Six guys pick up six revolvers, load one bullet, spin the cylinder, point the gun at the next guy's arm, and pull the trigger. One of them gets shot. I don't know what the appropriate sentence would be for participating in this game (nothing? prison?) but I would vehemently argue against penalizing the man holding the unlucky gun more than the other five men.
If you allow the victim's reception of the act to color your perception of the accused attacker, you are adding a random factor to the rules you expect people to follow. You are, effectively, saying "Don't have sex with someone if they are going to feel raped afterwards" about situations where someone can't know how the other person is going to feel until afterwards. This would be like saying "don't go through an intersection if the light is going to turn yellow while you're in the intersection", which you (mostly) can't know in advance. When making judgments that can change someone's life for the worse, I want there to be as little randomness involved as possible. There are only two non-random consistent rulesets that can be applied in this situation, and neither of them are palatable to our community. First, we could say that anyone having sex with a drunk person will be treated as a rapist, regardless of how the victim feels. Doing this would break the mating ritual of a large portion of our population and spell certain doom for our species, so this isn't a viable option. Second, we could say that a person having been drunk is not cause for the other party to be labeled a rapist. This ruins many cherished opinions about informed consent. Including the random one, none of these three options are appealing.
To reiterate, nothing I've said here applies to factors other than reception, and the things I've said apply to reception regardless of intent and actions. If the intent and actions are malicious, reception still shouldn't matter. If the intent is malicious and the actions inept, reception still shouldn't matter. As far as we can determine and judge the factors that are apparent and relevant to the initiator/attacker, those are the factors on which we should base our reaction.
Now, we come to the goal of preventing future rapes, and my earlier mention of priorities. Our community is going to take some steps to try to accomplish this goal. Those steps will be more effective the less random their basis. If we choose to ostracize everyone whose victim felt raped, we will appease the victims more often, but we will be doing away with some people who are not dangers to our community, and not addressing problems with people who are a danger but who are luckier or better at picking their victims. If, instead, we choose to ostracize people whose ACTIONS are unacceptable, and/or whose intent becomes apparent and unacceptable, then we will have a community in which those actions take place less often, and those intents are held less often. I choose the latter. To the consternation of many, this will require us to actually discuss and decide what those unacceptable actions are, to talk about the unacceptable behavior of others, and to enforce our rules consistently. I am willing to do this. Are you?