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

• Author: Rubenfeld, Jed
• Position: IV. The Merits of Deceptive Sex and of Sexual Autonomy through Conclusion, with footnotes, p. 1413-1443

4. THE MERITS OF DECEPTIVE SEX AND OF SEXUAL AUTONOMY

   Which leaves rape law with two paths to choose from. Two postulates of American sex law turn out to be at war. The first is that most sex-by-deception is not rape or even a crime. The second is that individuals have a right to sexual autonomy. The first is established by the force requirement. The second is supported by Lawrence, the decriminalization of consensual sex, and modern sex codes as well. But these two postulates cannot both stand.

   It's time to question both these postulates. One of them has to give. Perhaps sex-by-deception should be rape--or at any rate a crime--in which case our criminal sex law could and should embrace sexual autonomy without cavil. Or perhaps instead the supposed right to sexual autonomy is wrong, in which case rejecting rape-by-deception is much less problematic, but Lawrence v. Texas, to the extent that it stands for such a right, would have to be reconsidered.

   In what follows, I try to take on these difficult and foundational questions. My conclusions will be as follows. First, good reasons underlie the intuition that sex-by-deception is not rape or, generally, a crime. Second, the supposed right of sexual autonomy is a myth and should be rejected.

   1. Should Sex-by-Deception Be a Crime?

      The case for criminalizing sex-by-deception is obvious. Fraud is typically illegal. Deceiving people into sex can be particularly invidious. It can be demeaning and humiliating. It can impose substantial risks and fateful consequences, including pregnancy or illness, on people without their genuine consent. And of course it prevents parties to the sexual bargain from reaching the efficient, welfare-maximizing deals at which they rationally aim. (174)

      It's a crime to trick people out of their property. How can it be lawful to trick them out of their bodies--how can the law give less protection to women's bodies (and not only women's) than it gives to chattel? We have already seen that existing rape-by-deception doctrine rests on an obsolete morality of female sexual virtue. Why shouldn't rape law rid itself of this final vestige of traditional rape law and extend unreservedly to deception?

      In this Section, I offer reasons why a general crime of sex-by-deception would be unwise. What I say is not intended to provide a knock-down argument proving that sex-by-deception cannot be criminalized. The goal is only to remind us that sound reasons lie behind the judgment that sex-by-deception isn't and shouldn't be a crime.

      1. An Interesting Implication of Rape-by-Deception

         Say that a man, twenty-five, invites a seventeen-year-old woman back to his home, believing that she's eighteen. They have sex. What crimes have been committed?

         The man may well be guilty of statutory rape. (175) But assuming that the girl lied about her age and he wouldn't have slept with her otherwise, the girl would also be guilty of rape-if sex-by-deception were rape. As a minor, would she be immune from prosecution? On the contrary, minors are frequently prosecuted as adults for rape. (176) Hence man and girl might both serve time, he for "statutorily" raping her, she for "really" raping him. (177)

         Until quite recently, judges could have warded off this double-rape result by holding that women are legally incapable of raping men. (178) But today's rape law has rejected these notions. (179) Women can be rapists, and they would be much more often if sex-by-deception were rape.

         Now consider a much more egregious case. A man--call him McDowell--sees the following advertisement on Craigslist: "Need a real aggressive man with no concern for women." A photograph shows the sender to be an attractive female in her twenties. McDowell responds and receives by email a home address, more photographs, and more statements of the following kind: "looking for humiliation, physical abuse and sexual abuse." On a December afternoon in 2009, McDowell goes to the house, sees the woman, assaults her, ties her up, and rapes her at knifepoint.

         As the reader may know, these facts are real. The Craigslist advertiser turned out to be an ex-boyfriend of the assaulted woman, one Jebidiah Stipe, who, when the facts came out, was convicted of rape and sentenced to sixty years in prison). (180) A question much discussed was whether McDowell had also committed rape: he claimed that he sincerely believed his victim had consented and that he was merely fulfilling her sexual fantasies. (181) (The judge sentenced him to sixty years as well.) (182) A question no one asked was whether McDowell had been the victim of rape.

         But if sex-by-deception is rape, McDowell was raped, provided we accept his story. The woman was raped by force. He was raped by fraud.

         It is of course possible for a given individual simultaneously to commit a crime and to be the victim of that crime (a person may steal and be stolen from, kill and be killed, at the same time). The notion, however, that a man who committed a violent sexual assault could himself claim rape on deception grounds seems patently ridiculous. Yet that would be a perfectly predictable result if sex-by-deception were rape.

         And the assailant's putative rapist need not be a third party, as it was in McDowell's case. It could be the victim of the assault herself. A man who only rapes models could claim to have been raped by his victim if she falsely told him she was a model. There's nothing logically incoherent in these possibilities; a proponent of rape-by-deception could embrace them all. But they strongly suggest that the whole idea of rape-by-deception has left something out--that it misses something fundamental about what it means to be raped.

      2. The Merits of Deceptive Sex

         Now suppose we put aside the word "rape." Sex-by-deception need not be called rape and could be subjected to lesser penalties. (183) Perhaps McDowell was the victim of "sexual misconduct" or "sexual imposition"--or merely "sex-by-deception." If we stop using the term rape, do we get a better case for criminalizing sex-by-deception?

         I don't think so. With respect to most crimes, it's hard to give a generally favorable account of the behavior in question-hard to defend letting people murder each other, steal each other's property, and so on. But deceptive sex, however bad it may be, isn't that bad.

         There's a reason the word romance is surrounded by a cloud of fictive connotations. Few people know the whole truth about those with whom they have sex, at least at first. Yes, we could have a legal regime of full disclosure prior to any sexual contact--a kind of Rule 10b-5 for sexual security. (184) This would undoubtedly improve the rationality of sexual decisionmaking, but it doesn't sound like fun. Rationality has no monopoly on sex.

         And love? A vast engine of deception. Even in a hook-up culture, love floats on the horizon, an obscure object of desire, and what is more common than love's blinding one person to the most basic facts about another? If fully informed consent were the key to lawful sex, the first thing we should do is jail all the beautiful people.

         It would be a gross exaggeration to say that everyone lies on the way to sex, in the sense of verbally stating untruths. On the other hand, almost all of us surely conceal; we rarely disclose every last bit of potentially relevant information. And many of us--a great many, probably--tacitly mislead. Clothing and underclothing can falsify. Make-up and hair dye can deceive. All cosmetics misrepresent. They can designedly and quite effectively convey false information concerning age, hair color, teeth, skin color or quality, bodily characteristics, genetic predispositions, ethnicity, and so on. And just think of cosmetic surgery. We may disapprove of some of these misrepresentations, but on the whole it would seem a pity to see them all go. Many of us would undoubtedly be in jail were every one of them criminal.

         Certain lies told to obtain sex could be sensibly singled out by statute and criminalized. Concealing a sexually transmissible disease would be a good example. (185) But it is hard to believe that all sex-by-deception could or should be criminalized, under whatever name, even if the punishment were only a year or two in jail.

   2. The Myth of Sexual Autonomy

      The permissibility of sex-by-deception throws a serious wrench into the gears of American sex law. All the major components of sex law today have seemingly converged on a single, unifying principle: sexual autonomy. Sex-by-deception calls that principle into question. In this Section, I will argue against the idea of a fundamental right to sexual autonomy, which, I will suggest, is both unattainable and undesirable.

      1. Sexual Autonomy's Unattainability

         Autonomy is a big and loaded concept, with multiple possible meanings across a variety of contexts. Speaking roughly, we can distinguish thick accounts of autonomy from thin ones. Later I'll consider a thin version, but sexual autonomy, at least as courts describe it, is thick-very thick.

         Recall the Supreme Court's formulation: rape law protects an individual's "privilege of choosing those with whom intimate relationships are to be established." (186) Or the New Jersey Supreme Court's description of sexual autonomy: the "right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact." (187) We may feel we know what these sentences mean, but looking squarely at what they say-who has ever enjoyed such rights and privileges?

         Medieval kings are said to have claimed the right to sleep with any woman they chose under the droit de seigneur. But only one person today imagines he has the unfettered "privilege of choosing those with whom intimate relationships are to be established"--a rapist. No one can hope to "control" all "the circumstances and character" of his sexual activities. Why does sexual autonomy find expression in a mythic language of unattainable...