Deconstructing rape by fraud.

Author:McJunkin, Ben A.


In this Article, I critically examine the role of normative masculinity in determining the shape and scope of the criminal law doctrine of rape by fraud, which purports to criminalize sexual intercourse procured through certain material deceptions. In application, the rape by fraud doctrine is exceedingly narrow--deceptively induced sexual intercourse is rarely criminalized as rape, despite deception s profound impact on the voluntariness of sexual consent. As the Article explains, the rape by fraud doctrine is thus in tension with the prevailing view that rape law principally protects a thick norm of individual sexual autonomy. Despite this tension, the narrowness of the rape by fraud doctrine is frequently defended, often by those who are most committed to individual autonomy elsewhere in rape law.

Through an analysis of court decisions and academic commentary, I demonstrate that those defenses largely rest on appeals to a romanticized ideal of the practice of seduction. I illuminate the link between seduction and a prevailing ideology of normative masculinity that allocates social status for men on the basis of demonstrations of sexual conquest. That ideology perpetuates narratives in which women, through their capacity to grant or withhold consent, hold power over men when pursued as objects for sex. Indeed, within this account, the transgression of women s power is what makes sexual conquest worthy of masculine status. Deceptions used to procure sex are criminalized only in exceptional cases where the narratives of interpersonal power break down. Thus, the rape by fraud doctrine can be seen as codifying existing limits on masculine status transfer. Ultimately, I argue that understanding the rape by fraud doctrine in terms of normative masculinity exposes an important continuity between contemporary rape law and rape law historically, in which rape was a crime against men s property interest in women.

"Men do not want solely the obedience of women, they want their sentiments."

--John Stuart Mill,

The Subjection of Women (1869)


I find it curious that, both socially and legally, the narratives of contemporary rape law center on women. Socially, rape law reform is overwhelmingly regarded as a feminist undertaking. Legally, the laws against rape are overwhelmingly justified by the need to protect the sexual autonomy of (presumptively female) victims. Yet, rape is predominantly a male social practice. (1) As is law. (2) To understand rape law, then, we should seek to understand why men pass laws that purport to outlaw the men who rape.

This Article begins that inquiry by offering a critical examination of the criminal law doctrine of rape by fraud. Broadly speaking, rape by fraud refers to instances of sexual intercourse where a victim's consent is procured through fraud, deception, impersonation, or other material misrepresentation. (3) In theory, the fraud vitiates putative consent, rendering the intercourse nonconsensual and thus punishable as rape. As the justifications for contemporary rape laws coalesce around the protection of autonomous sexual decisionmaking, the rationale for treating rape by fraud as rape is increasingly obvious. (4)

In practice, however, deceptively induced sexual intercourse is rarely criminalized as rape. Courts and commentators have largely clung to the view that--outside of certain exceptional cases--rape by fraud is not rape at all, despite deception's profound impact on the voluntariness of sexual consent. In fact, interest in the subject of rape by fraud has only recently been revived by several controversial prosecutions that are viewed as overstepping the narrowly established boundaries of the doctrine, (5) as well as by an equally controversial article from Jed Rubenfeld suggesting that our cultural resistance to criminalizing sexual deception may be stronger than our commitment to sexual autonomy. (6)

The tension between rape law's internal justifications and the rape by fraud doctrine's narrow application implicates foundational debates about the special place of rape within the criminal law. (7) Accordingly, rape by fraud has been explored by some of the most prominent criminal law theorists of our time, nearly all of whom ultimately conclude that the limited reach of rape by fraud laws is justifiable. (8) To explain this seemingly untenable perspective, courts and commentators deploy a conceptual dichotomy that purports to distinguish between different species of frauds. (9) However, this dichotomy, a vestige of antiquated notions of female purity and ruination, reduces the legal construction of women's sexual autonomy to little more than binary permission. Nearly all sexual deceptions, including fundamental deceptions about one's sexual partner, are dismissed under the law as merely peripheral considerations.

Doing the unthinkable--that is, acknowledging that the failures of the existing doctrine are indeed failures--leads us to confront what the law is actually doing in those rare instances when it criminalizes deceptions employed to procure sex. Rather than focusing on the basis for criminalization, this Article chronicles the justificatory narratives that run through several widely offered defenses of sexual deception--essentially arguments for the non-criminalization of legitimately condemnable conduct. Upon examination, a common thread emerges: the romanticization of sexual seduction, part of a prevailing discourse of normative masculinity that links men's social status to performances of sexual conquest. Undergirding this discourse of sexual conquest are pervasive, and troubling, fictions about interpersonal power dynamics in men's pursuit of women for sex. Importantly, these fictions appear to break down at precisely the points of criminalization. Only when stripped of the insulating discourse of normative masculinity is sexual deception exposed for what it is, and thus unambiguously criminalized. Deconstructed, the rape by fraud doctrine is better explained by the prevailing norms of masculinity than by the abstract principle of individual autonomy that ostensibly animates domestic rape law.

For that reason, this Article proposes a conceptual break with sexual autonomy as rape law's motivating principle. Autonomy has proven insufficient to resist the influence of contemporary masculinities in shaping how impermissible sex is socially understood and legally contended with. One possibility for just such a break consists in embracing human dignity as rape law's touchstone. Dignity is taking an increasingly central role in legal discourse, particularly in the realms of gender and sexuality. (10) Domestically, the invocation of dignity is allowing the law to recognize gender-based harms in social contexts where they were otherwise invisible to legal liberalism. (11) Practically speaking, grounding rape law in human dignity may aid in resolving numerous issues that have arisen in the law's approach to sexual consent. More fundamentally, a turn toward dignity, and away from individual autonomy, holds the potential to sever the connection between the immanent justifications for criminalizing rape and the discourses of interpersonal power that reinforce and reproduce gender hierarchies in American society.

Undoubtedly, some will claim that my proposed embrace of dignity is merely an indulgent flourish. They will argue that the problem of rape by fraud, to the extent they acknowledge a problem at all, consists of its doctrinal tension with the broader principle of autonomy--a problem that can arguably be solved by redoubling the commitment to autonomy in rape law, for example by articulating an account of autonomy that can better account for the contexts of women's sexual choices and social constraints under which those choices must labor. This Article emphasizes the dialectical relationship between law's internal justifications and masculinity's social discourse precisely to underscore the dangers of continuing along the current path. As rape has evolved from its historical roots as something akin to a property crime into its contemporary form as a violation of individual sexual autonomy, so too has normative masculinity reconfigured itself to respond to the entrenchment of liberal ideals. Contemporary masculinity now posits value in men's being chosen for sex, objectifies women as the source of such value, and eroticizes the transgression of women's resistance as sexual conquest. It has effectively co-opted the momentum of legal reform in the direction of liberalism and oriented the structures of subordination and domination along the axis of individual choice. If I am correct in this observation, there is considerable promise in the potential for deliberate legal reforms to direct the continued evolution of prevailing gender norms.

This Article proceeds in three Parts. Part I sets the stage. It recounts the contemporary trend among legal commentators to view the fundamental harm of rape as a violation of the victim's sexual autonomy. It then examines the doctrine of rape by fraud and details the myriad ways in which the autonomy justification fails to explain the narrowness of criminal liability. Of particular interest, it highlights the complacency of legal actors and academics with regard to the doctrine's failings.

Part II reorients the examination of rape by fraud as a question of decriminalization. It demonstrates that the widespread acceptance of rape by fraud's narrow and peculiar doctrinal contours stems from a normative commitment to insulate the practice of sexual seduction from the threat of criminalization. It exposes the centrality of seduction to a dominant account of nonnative masculinity--one in which men derive social status through performances of sexual conquest. It then explains how masculinity has embraced the discourse of female sexual autonomy to posit women, when pursued for sex, as a locus of power over...

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