The riddle of rape-by-deception and the myth of sexual autonomy.

AuthorRubenfeld, Jed
PositionIntroduction through III. Three Options, Including a Compromise, p. 1372-1412

ARTICLE CONTENTS INTRODUCTION I. SEXUAL AUTONOMY AS THE FUNDAMENTAL PRINCIPLE OF AMERICAN SEX LAW A. Sexual Autonomy and the Right to Privacy B. Sexual Autonomy and Decriminalization C. Sexual Autonomy and the New Sex Codes D. Sexual Autonomy and Rape Law 1. The Enigma of Rape Law 2. Rape as a Crime of Defilement--Female Defilement 3. The Turn to Sexual Autonomy E. Summary: Putting Privacy, Decriminalization, Sex Codes, and Rape Law Together II. THE RIDDLE OF RAPE-BY-DECEPTION A. The General Rule and Its Two Exceptions B. The Conventional Justifications- and Why They Fail C. Deception and Defilement D. What Sexual Autonomy Says -or Ought To Say-About Rape-by-Deception E. Squaring Sex-by-Deception with Sexual Autonomy? 1. Victims of Deception Do in Fact Consent 2. Deceived Sex Is Wanted Sex 3. Lies Are Customary and Expected in Sexual Contexts 4. Deception Need Not Undermine Autonomy III. THREE OPTIONS, INCLUDING A COMPROMISE A. Sticking with Force B. Embracing Sexual Autonomy C. The Compromise: Not Force, but Coercion D. Conclusion: The Problem with Coercion IV. THE MERITS OF DECEPTIVE SEX AND OF SEXUAL AUTONOMY A. Should Sex-by-Deception Be a Crime? 1. An Interesting Implication of Rape-by-Deception 2. The Merits of Deceptive Sex B. The Myth of Sexual Autonomy 1. Sexual Autonomy's Unattainability 2. And Its Undesirability 3. Sexual Autonomy as a Right Against Wrongful Conduct V. FROM AUTONOMY TO SELF-POSSESSION A. Sexual Autonomy's Irrelevance to Rape Law B. Rape as a Violation of Self-Possession C. Rape Law's Core Problem Revisited D. Self-Possession and the Right to Privacy E. Self-Possession and Force F. An Objection: Self-Possession a Floor, Not a Ceiling G. Doctrine 1. Defining Force 2. Masochism, Wantedness, and Mistake 3. No Means No--but It May Not Mean Rape 4. Unconscious, Underage, and Intoxicated Sex CONCLUSION INTRODUCTION

In 2010, a man was convicted of rape in Jerusalem-not for forcing sex on his victim, but for posing as a "Jewish bachelor" with a "serious romantic" interest in her:

If [the complainant] had not thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated with him.... .... The court is obliged to protect the public interest from sophisticated, smooth-tongued and sweet-talking criminals who can deceive innocent victims at an unbearable price-the sanctity of their bodies and souls. (1) Even as the Kashour case was pending in Israel, a bill was pending in Massachusetts authorizing life imprisonment for anyone who "has sexual intercourse ... with a person having obtained that person's consent by the use of fraud, concealment or artifice." (2) In Tennessee, rape is already defined to include "sexual penetration ... accomplished by fraud." (3) A man commits rape in Idaho, under a 2011 amendment, when he has sex with a woman who, because of his "artifice, pretense or concealment," believes him to be "someone other than" who he is. (4) In Canada, a Supreme Court Justice has stated that rape is committed whenever sex is procured through "dishonesty." (5)

Thus "rape-by-deception" is a live and intensifying issue in criminal law. The problem it poses is easy to describe. Many--perhaps most--of us don't think "rape-by-deception" is rape at all. (6) Neither, as a rule, do our courts. (7) The problem is that we ought to think it is rape, and courts ought to so hold, given what we say rape is.

According to a very widely shared view, rape means sex without the victim's consent. The crime was often so understood by common law judges; (8) it is explicitly so defined in many modern statutes; (9) and it is frequently so described in contemporary usage, both lay and legal. (10) But sex-by-deception is sex without consent, because a consent obtained by deception, as courts have long and repeatedly held outside of rape law, is "no consent" at all." &&&&&&&& THE RIDDLE OF RAPE-BY-DECEPTION AND THE MYTH OF SEXUAL AUTONOMY

A person who enters your house pretending to be a meter reader commits trespass (entry onto real property without consent);12 a Ponzi-scheme swindler commits larceny or theft (taking property without consent) "by deception"; (13) a man posing as a doctor who "lays his hands on [a woman's] person" commits battery (offensive touching without consent). (14) "Fraud," as Judge Learned Hand put it, "will vitiate consent as well as violence." (15) Why, then, isn't sex-by-deception rape?

The answer, for American courts, is that rape requires more than nonconsent; it requires force, and deception isn't force. (16) But this answer hardly answers, not without an explanation of why rape requires force--an explanation that has never been forthcoming. The force requirement makes rape law blind to all the situations in which people, often women, are coerced or manipulated into sex through social pressure or alcohol or other means falling short of physical violence. (17) As a result, "[v]irtually all modern rape scholars want to modify or abolish the force requirement as an element of rape," (18) and some jurisdictions have already eliminated it. (19)

But this means rape law has a serious problem. Existing doctrine has no trouble dismissing rape-by-deception claims, but only because of the much-decried force requirement. If rape law were really to eliminate the force requirement--as so many argue it should, as many statutes have already seemingly done, and as courts have begun to do--then sex-by-deception would and should be rape, because the legal definition of rape would then be sex without consent, and a defrauded "consent," like a coerced one, is no consent at all.

This problem is by itself a considerable challenge. It implicates the most fundamental questions about what rape is and how the law ought to define it. But the problem runs deeper still.

Just as we speak of "antidiscrimination law," referring to an interlocking set of constitutional rights, statutes, regulations, and judicial decisions, so too we might speak of "sex law," comprising the same elements. And we might say that sex law in this country is converging on a single unifying principle: the right to sexual autonomy.

The idea behind sexual autonomy is simple. People have a right to decide for themselves with whom and under what circumstances to have sex. The legal fight for this principle has been waged on several fronts, including:

Constitutionalization. Constitutional sex law commenced in earnest with Griswold v. Connecticut, (20) and the Court's most important recent decision in this field, Lawrence v. Texas, (21) is widely read to stand for a right of sexual autonomy. (22)

Decriminalization. Long before Lawrence, sodomy prosecutions were rare, and older sex crimes such as fornication and seduction had been abolished, reflecting a conviction that private, consensual sex was not an appropriate target of criminal law. (23)

Sex codes. Sexual misconduct has long been regulated privately on college campuses and elsewhere. But while such sex codes used to aim at prohibiting sex, today their aim is different: to ensure that sexual activities are consensual. (24)

Rape law reform. Finally, over the last several decades, radical transformation came to rape law as well. Old doctrines have been discarded, reopening core questions about how rape ought to be defined, (25) and today, the central purpose widely ascribed to rape law is the protection of sexual autonomy. (26)

Thus sexual autonomy seems to provide a single, clear, appealing foundation for the regulation of sex in the United States, unifying its major components. But there is an anomaly in the system: sex-by-deception. From autonomy's viewpoint, fraud is as great an evil as force. (27) Precisely by failing to punish rape-by-deception, sex law fails to vindicate sexual autonomy. This failure would seem to put rape law in tension not only with its own central principle, but with the rest of American sex law, including Lawrence. (28)

The purpose of this Article is to demonstrate that sex-by-deception does in fact pose all the difficulties just outlined. It requires a rethinking of what rape really is. It also requires sex law to pick its poison--to decide if it does or doesn't stand for sexual autonomy, whether that means embracing rape-by-deception or reconsidering Lawrence. Finally, it requires a reevaluation of the ideal of autonomy itself, at least as applied to sexuality.

Part I will trace the emergence of sexual autonomy as the fundamental principle of American sex law. Part II will lay out rape-by-deception doctrine and the difficulties it creates. Part III maps the main options available to rape law once these difficulties are exposed: (1) sticking with the force requirement in order to say no to rape-by-deception; (2) embracing sexual autonomy and with it a much broader doctrine of rape-by-deception; and (3) staking out a compromise in which coercive sex would be rape, but deceptive sex would not. This compromise would, I will argue, capture many people's intuitions, beat a retreat from the force requirement's worst aspects, and bring rape law closer to vindicating sexual autonomy.

Parts IV and V of this Article-well, Parts IV and V should probably never have been written. Many readers will disagree with them. To begin with, I will reject the coercion-based compromise just described. Its half-logic is too unprincipled, its results contradictory. Instead, Part IV will oppose the principle of sexual autonomy altogether. Notwithstanding Lawrence, I will suggest that there is and should be no fundamental right to sexual autonomy. The great principle of individual autonomy hits a kind of limit in sexuality, where the pursuit of bodily and psychological conjugation makes the goal of autonomy strangely chimerical, at odds with desire itself.

But how should rape be understood if not in terms of sexual autonomy? Part V lays out an answer. Rape violates what I will call the right to self-possession. The right to...

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