The title of Foa's paper is "What's Wrong with Rape?"
Rape is wrong. Seemingly this is an indiputable fact. Well, why is it? Because it weakens, for a time, the economic productiveness of many people who are raped? Because while the biologically intended use of the body parts (sexual organs) is met, the psychologically intended use is not met (that is, sex is supposed to be tender and not hurtful)? These would be silly reasons for calling rape wrong. Most of us are aware that rape is viewed now as a crime of violence rather than as a sex crime. This fact points to the moral impermissiveness of rape. That is, rape is wrong on moral grounds. The traditional argument here is that since it is morally wrong to treat a person as a nonperson, and since using someone against her/his will is to do just that, and since rape is the use of another person against her/his wishes, then rape is morally wrong. Call this the "Respect for Persons" argument against rape (RFP for short). Pamela Foa sees that there is value in this argument. She says it gives us one way of understanding how one's person can be violated. In her opinion, this lack of respect is always present in rape.
RFP turns on the claim that rape involves persons (though it is possible to talk coherently about raping a sheep or a dog, we are talking about people here, human beings). It turns on the claim that there is a violation of a persons personhood in rape. It turns on the claim that the rapist is treating the victim as less than a person. Foa balks here, and is unwilling to say that this is the important part of the wrongness of rape. She's worried that if RFP is the only argument (or even the primary argument) by which rape is shown to be wrong, then it becomes just another crime, like a mugging, or vandalism of personal property, or assault and battery, etc.
In part, RFP makes use of the idea that women and men are equal in the sense of "having the full array of moral and legal right and privileges". (Foa, 585) But, she says, since rape of children is at least as bad as rape of an adult, and since children are not usually thought to be "equal" to adults, the wrongness of rape must go beyond the criminality of the act of a violation of the personhood of an equal.
Let me respond briefly here. Would the mugging, or the assault and battery, or the vandalization of the property of a child be less wrong in the eyes of the law (and more pertinent here) and in the moral sense of 'wrong' than the same acts on an adult? Of course not. Hence, a hairline crack in the wall of the argument Foa is building.
For Foa, the special wrongness of rape stems from the fact that it is sexual in nature. It is a humiliation of the woman (as though men are never raped) based on society's view of her as essentially a sexual being. It is based on a view of society about the nature of sexual activities as well as about the nature of women. Further, the essentially intimate nature of sexuality is another reason why rape (an especially nonintimate encounter) is wrong.
Brief response. If rape is never intimate and if all sex is intimate, then doesn't it follow that rape is not sex? This is another idea going along with the view that rape is not a sex crime.
One thing which might tend to get us past looking at rape in the way Foa is doing is something she herself says. If we could break the Victorian bonds of our views about sex, we might not continue to see rape as more wrong (even "especially horrible") than other criminal wrongs. If we could get past thinking that even in rape the woman (man) is in a state of pleasure, that women are essentially sexual beings, that sex is dirty, then the sexual nature of rape would not be the touchstone of our thinking of it as more wrong than other criminal acts.
I submit that our Victorian shackles are loosening ever more rapidly in our society. The courts don't anymore have the presumption that the rapist somehow "brought it on her/himself", or was "asking for it" (even if proven that the victim had been seen wearing what would be thought of as seductive clothes, jewelry, cologne, and so on). This is partly the result of our taking seriously the idea that "No" means "No". Even if a couple begins engaging in sexual activity and one partner suddenly decides not to continue, we feel the obligation of the other person is to cease all activity, simply because of the unwillingness of the other. No doubt this can be a cause of frustration. One might ask, "Well, why did you lead me on?" Or "Why tease me like this?" Nonetheless, even if this leading on or teasing is thought to be morally wrong, it does not follow that rape is the proper way to respond. On the contrary, it is clear that it is not proper.
I don't get the impression that Foa is arguing that it is merely the view of society that makes rape so horribly wrong, but that it would be this wrong even if society were to completely alter its views of sexuality. This latter view would be ontological in nature and therefore I'm not confident in my interpretation because Foa says the argument she wants to run is not ontological in nature. My way of giving her the benefit of the doubt (or as much rope as she wants).
One excellent example of Foa's ignorance of present conditions in our society seems to me captured in the following picture she gives of what children are taught. "Long before intercourse can be a central issue, when children are prepubescent, boys are instructed to lunge for a kiss and girls are instructed to permit nothing more than a peck on the cheek." (Foa, 589) Where did this come from? 1950's high comedy. 1950's children being instructed by parents (and uncles and aunts) who were raised in the 1930's. Foa's paper is 21 years old and that must explain it because things have changed, for the most part, in American culture. Or have they? This, of course, is an empirical question which must be answered in the ordinary way of empirical questions. We go out and look and ask, and speak and judge, and reason and conclude. My experience, having 4 teenagers in the house (and many of their friends) at the present time (and studying them pretty closely at times (hopefully without their suspecting)), and having coached a Little Leagues team for the past 10 years (where boys and girls mix it up regularly) is that there is a lot of sexual and nonsexual "grabassing" going on on both sides. I don't see girls backing up, or boys being more agressive than girls, or "lunging for kisses" or "allowing kisses on the cheek only". What do I see? I see playful kids awakening to their sexual desires, confused about how to act. They're low level consciousness how to act is a clue to the fact that they're not taught very much in the first place. They find their way through trial and error. Foa's claims about how children are instructed on what not to do is simply laughable. Either that or she's living in a very different world from mine.
The best idea Foa comes up with in the paper is the idea that sex between friends is the best alternative to rape. Importantly, this will involve listening to one another (as friends listen to friends); this will involve the necessary intimacy attending consensual sex. However, she is quick to point out that sex between friends need not be the only sort of legitimate sex people can have which avoids the evils of rape. It is just that she sees the situation of "lovers involved in a healthy relationship" as having many, if not most, of the features of sex between friends.