Dear Libertarians Who Are Squabbling About Rape,Bob Murphy picked this post up here.
N.b., if "tacit consent" isn't a satisfactory standard for the state's moral legitimacy, then maybe it's not good enough for the moral legitimacy of a sexual encounter, either?
This is an important challenge, particularly since the moral intuitions she pries open are likely to raise hackles.
Since you're reading this here at EE, I assume you're already sensitive to BATNA disparity. If you've got a libertarian bent, you're likely to believe that there's an ENORMOUS disparity between the state and the individual. Yes, that's precisely the point of the state: to retain a monopoly on the use of violence.
But here's the thing the libertarian might be slightly less willing to subscribe to: if you're a woman, you're likely to believe that there's a BATNA disparity between men and women, particularly when she's decommissioned by drink or drugs.
Having your way with someone who is three sheets to the wind is not euvoluntary, even if it's nominally voluntary, even if there's no expression of ex post regret. That doesn't automatically make it wrong necessarily, but if you want to understand where these moral sentiments come from, pay attention to your Adam Smith: sympathy is the first plank in building a civil society.