Printer Friendly

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

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 self-possession is best illustrated by two other offenses that also violate it: slavery and torture. Rape should be thought about, I will argue, the way we think about those two crimes. Every act of rape may not be an act of slavery or torture, but all rape shares core elements of both.

A warning: this way of seeing rape will have at least one glaring weakness. It will suggest that the much-maligned force requirement might not be so malign after all.

Taking Parts I to V together, the argument will be as follows: Current rape-by-deception doctrine is unjustifiable given today's predominant, sexual-autonomy-based view of rape. If rape means sex without consent, sex-by-deception ought to be rape. At a minimum, given principles of sexual autonomy, sex-by-deception ought to be very broadly criminalized, if not under the name of rape, then as a separate (perhaps lesser) offense. My conclusion, however, is that sex-by-deception should not be broadly criminalized; instead the mistake lies in the autonomy-based view of rape--indeed in the whole notion of sexual autonomy as a fundamental right. For American sex law in general, this conclusion suggests a rethinking of Lawrence and related cases. For rape law, the implication is that rape cannot be understood merely as unconsented-to sex; a certain kind of force, to be explained below, is in fact central to the crime.

I. SEXUAL AUTONOMY AS THE FUNDAMENTAL PRINCIPLE OF AMERICAN SEX LAW

Not long ago, the consensuality of a sex act was irrelevant to its legality. And almost all sex was illegal.

If an unmarried man and woman had sex, it was fornication. (29) If either had a spouse, it was adultery in the married party and fornication in the other, or adultery in both. (30) If a man lured a woman into bed through a promise of marriage, he committed seduction. (31) If one was black and the other white, they were chargeable with miscegenation. (32) If both were male, it was sodomy. (33) If both were female, it was plainly an abomination, although no one seemed to know exactly what kind. (34)

Even a married couple could go to jail for having the wrong kind of sex. (35) If they sought to prevent childbirth, they faced more criminal sanctions. (36) Merely possessing information about contraception could be a crime. (37)

Thus went traditional American sex law. The only safe sex was heterosexual, copulative, marital intercourse. (38) No kind of autonomy figured in this legal landscape-not sexual, (39) not male, not female, not marital. Today, things are slightly different. In the last several decades, a sex-law revolution has taken place, in which sexual autonomy has emerged as something like a fundamental right. This transformation has occurred across at least four areas: the right to privacy; sex crimes; sex codes; and rape law. (40)

A. Sexual Autonomy and the Right to Privacy

When the "right to privacy" first appeared in Griswold, (41) it did not imply a right of sexual autonomy. The Griswold Court repeatedly emphasized that the case involved "marriage" (42) and stressed the "repulsive" prospect of police scouring the "sacred precincts of marital bedrooms" for evidence. (43) Thus Griswold's privacy looked potentially quite narrow. (44)

But in Eisenstadt v. Baird, (45) striking down a ban on the distribution (rather than, as in Griswold, the use) of contraceptives, the Court declared that the right to privacy protected every individual, "married or single, ... from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (46) Suddenly privacy reached far beyond marriage and private places like the bedroom. Under Eisenstadt, the new right to privacy seemed hardly to be about privacy at all. (47)

What, then, was it about? No one really knew. But a year later, when the Court decided Roe v. Wade, privacy began to look like it really might mean sexual autonomy. Arguably, one of the most important elements of sexual autonomy is reproductive autonomy. Thus did Richard Posner feel justified in declaring that "in a series of decisions between 1965 and 1977, the Supreme Court created a constitutional right of sexual or reproductive autonomy, which it called privacy." (48)

But if Roe held out the promise of sexual autonomy, that promise was dashed in Bowers v. Hardwick. (49) There the Court upheld the criminalization of consensual sex acts traditionally considered immoral and offensive. (50) Seventeen years later, however, Lawrence reversed

Bowers.

Interestingly, the term "right to privacy" never appears in Lawrence. Instead, the majority opinion speaks of autonomy. Justice Kennedy began that opinion by declaring, "Liberty presumes an autonomy of self that includes... certain intimate conduct." (51) He also quoted Justice Stevens's Bowers dissent, calling the following two points "controlling":

   First, the fact that the governing majority in a State has
   traditionally viewed a particular practice as immoral is not a
   sufficient reason for upholding a law prohibiting the practice....
   Second, individual decisions by married [and unmarried] persons,
   concerning the intimacies of their physical relationship, even when
   not intended to produce offspring, are a form of 'liberty'
   protected by the [Constitution]. (52)


Where "two adults," the Court concluded, with "full and mutual consent from each other, engage[] in sexual practices," the "State cannot ... control their destiny by making their private sexual conduct a crime." (53)

Given such statements, it's no wonder that so many read Lawrence to have enshrined sexual autonomy as a constitutional right. (54) Indeed, under Lawrence, the Fifth Circuit has struck down a ban on the sale of "sexual stimulation" devices, holding that such a statute violated an individual's "right to engage in private intimate conduct of his or her choosing." (55)

B. Sexual Autonomy and Decriminalization

Over the course of the twentieth century, private (noncommercial) consensual sex was almost wholly decriminalized. At times this transformation was constitutionally mandated. Often, however, state legislatures and prosecutors acted on their own.

Thus, fifty years ago, penal fornication and adultery statutes were already so widely unenforced that the draftsmen of the Model Penal Code described them as "dead-letter statutes." (56) In many states, formal repeal followed. (57)

Similarly, the crime of seduction long ago passed into oblivion. (58)

Indeed, decades before Lawrence, many states had already repealed or stopped enforcing their sodomy laws. (59) Rather than being mandated by the Supreme Court, the widespread decriminalization of consensual sex paved the way for the "sexual revolution" of the 1960s and thus, ultimately, for the Court's own decisions in cases like Griswold, Roe, and Lawrence.

C. Sexual Autonomy and the New Sex Codes

Outside criminal law, private sexual misconduct regulations have long been common, especially at colleges. Traditionally, such sex codes aimed at blanket sexual suppression. (60) By contrast, the typical college sex code today permits sex on campus, seeking only to ensure one goal: consent.

For example, Duke University in 2010 defined "sexual misconduct" as "any physical act of a sexual nature perpetrated against an individual without consent." (61) Under this provision, no genuinely consensual sex is misconduct. Moreover, consent must be "informed," (62) suggesting that deception might negate it, and "power differentials," whether "[r]eal or perceived," can be coercive, even when such coercion is "unintentional." (63)

Yale's new 2011 provisions are similar. "Sexual misconduct" at Yale includes any "conduct of a sexual nature that is nonconsensual"; "sexual assault" includes "any kind of nonconsensual sexual contact." (64) Consent in turn is

   defined as clear, unambiguous, and voluntary agreement ... to
   engage in specific sexual activity. Consent cannot be inferred from
   the absence of a "no"; a clear "yes," verbal or otherwise, is
   necessary.... Talking with sexual partners about desires and
   limits may seem awkward, but serves as the basis for positive
   sexual experiences shaped by mutual willingness and respect.

   Consent cannot be obtained from someone who is asleep....
   ....
   Consent to some sexual acts does not imply consent to others, nor
   does past consent to a given act imply ongoing or future consent.
   (65)


Assuming these regulations are to be taken seriously--as a disciplinary code Yale intends to enforce, rather than, say, a display of legally useful institutional Concern (66)--some interesting results follow. Blowing a kiss to one's boyfriend without asking him first could fit the definition of sexual misconduct at Yale ("conduct of a sexual nature" without a "clear 'yes'" or "unambiguous" "agreement" to that "specific ... activity"). Kissing a girlfriend when she's asleep is apparently "assault." Even where two students willingly have sex, either (or both) could be charged with sexual assault if there was any "ambiguity" about which acts they had consented to. (67)

Given such consequences, it may be wrong to take Yale's regulations at face value. Nonetheless, they strongly express a sexual-autonomy-based ideal of full disclosure, of "positive sexual experiences" achieved through "[t]alking," and of advance, affirmative consent to each specific act engaged in.

D. Sexual Autonomy and Rape Law

Like the Supreme Court's right-to-privacy jurisprudence, rape law has been for decades a body of law in search of a principle, but has now seemingly found that principle in sexual autonomy.

1. The Enigma of Rape Law

An unanswered question lies at the heart of rape law. Why is rape a crime of its own?

Every rape is an assault or battery. Every rapist could be punished on that ground alone. The law, however, does not treat rape that way. Rape law makes an assault involving particular body parts a special crime of its own-one of the most serious in all of criminal law, punishable by death until not long ago, (68) and often by life imprisonment still today. (69) The crime of rape is in this respect unique. There is, for example, no special crime of assaulting someone's hands or face. (70) Nor is there a general crime of penetrating the body. Someone who force-feeds another has committed assault and battery, if she has committed an offense at all.

To ask why rape is its own crime may, I know, seem deliberately obtuse or wantonly insensible. Rape victims probably don't see an "enigma" here. Perhaps only someone who hasn't been raped--or perhaps only a man who hasn't been raped--would see things that way.

But the question still needs to be asked. As we will see, in traditional rape law, a morality of feminine virtue gave a simple, clear explanation of rape's status as a distinct and vile crime. Modern rape law, however, has ostensibly repudiated that morality. The question is whether modern law can still treat rape as a distinct crime without relying on what it claims to repudiate.

Understanding rape law's history is important for two reasons: first, to see why modern rape law embraced sexual autonomy in place of the old rejected sex morality; and second, to see how this morality remains covertly operative today-in the law of rape-by-deception.

2. Rape as a Crime of Defilement--Female Defilement

Why then, for traditional judges, was rape so vile and so different from other assaults? (71) The answer would have been simple: rape defiled women.

No injury to a woman short of death, and perhaps not even death, was worse than rape: "An injury to her person more violent than the rape of a young girl--her defloration and ruin--is impossible." (72) "There is no form of violence more odious either in law or in morals than rape." (73) In the torrid words of one supreme court:

   What is the annihilation of houses or chattels ... compared with
   the destruction of female innocence; robbing woman of that
   priceless jewel, which leaves her a blasted ruin, with the mournful
   motto inscribed upon its frontals, "thy glory is departed?" Our
   sacked habitations may be rebuilt, but who shall repair this moral
   desolation? How many has it sent ... with unbearable sorrow, to
   their graves? (74)


To rape was to "shame and dishonour" a woman. (75) Or in the sympathetic phrase of a seventeenth-century digest compiled for the governance of the New World, to rape a woman was to "make a whore" of her. (76)

This worldview was distinctly not gender neutral. It was women and girls whom sex destroyed, leaving them a blasted ruin Y For men, on the other hand, sex was hardly an injury worse than death; even men who criminally seduced unmarried girls were merely "rakes," "rascals," and "knaves"--not "ruins." (78) On the whole, sex buttressed manhood, whereas it destroyed maidenhood and defiled femininity.

Traditional rape law's picture of female purity is too well known (79) to require much spelling out. Yet the connection between the old morality and some of rape law's basic doctrines has been surprisingly underappreciated. Consider the infamous marital rape exception. (80)

Today, the marital exemption is almost invariably explained on one of three grounds. Most often, it is said to have rested on the notion that a wife permanently consented to sex with her husband--an explanation offered by Hale and repeated many times thereafter, (81) although judges and scholars have long noticed that Hale seems to have made up the rationale out of whole cloth. (82) The two other theories are that the common law viewed a wife as the husband's "property" or the marital couple as "one person." (83)

All three accounts overlook a far simpler explanation: marital sex did not defile a woman. Whether a wife consented to sex, wanted it, hated it, or was forced to submit to it, she wasn't defiled by it. Thus a law protecting women from sexual defilement had nothing to do with the plight of women sexually assaulted by their husbands.

When we today look back uncomprehendingly on the marital rape exemption, we tend to forget the marital fornication exemption, the marital seduction exemption, the marital prostitution exemption, and so on; there was a marital exception to almost all traditional criminal sex law. (84) Matrimony alone sacralized a woman's defloration, moralized erotic desire, and legitimized its issue. So long as rape was understood as a crime of female defilement, the crime was impossible between a husband and wife.

The one exception proved the rule: a man could be convicted of raping his wife if he helped another man force sex on her. (85) For in that case, the wife was subjected to an act "despoiling of [her] virtue." (86) Actually, a second exception re-proved the rule. If a husband forced unnatural sex on his wife, an "infamous indignity," (87) he could also be convicted-not of rape, but of sodomy (evidently she ceased to be his property, and they ceased to be one person, if he did that). (88)

Rape as a crime against female virtue explains other definitive features of traditional doctrine as well--for example, the staggering legal fact that men could not be raped. (89) Rape was ruin, and sex did not ruin men. (90) The "utmost resistance requirement" (91) also fit comfortably with the traditional view, as a test of whether women displayed the virtue that rape law existed to protect. (92)

Similarly, traditional rape law was notoriously hostile to claims by "fallen" women. (93) Officially, the victim's past unchastity was irrelevant. (94) But a woman's past sexual derelictions could still be put before the jury to show consent. (95) Modern critics excoriate this doctrine, arguing that it allowed rapists to be acquitted because their victims were sexually active. (96) This criticism is completely justified, but what it criticizes was the doctrine's very point: tacitly, if not explicitly, (male) juries understood that rape was a crime of defilement--and how could sex defile a woman who had no virtue to defile?

3. The Turn to Sexual Autonomy

In the last several decades, rape law has undergone radical change. The marital rape exemption is history. (97) The rape of men and boys was finally recognized. (98) The utmost resistance requirement has been abolished. (99) New statutes exclude evidence of a rape claimant's past sexual conduct. (100)

These reforms, however, have created a conceptual gap. Rape law has officially repudiated the feminine-virtue premises of the traditional era. But how then does it explain why sexual assault is different from other assaults? If not defilement, what is the special violation that rape inflicts ?

One possible answer: there is none. On this view, the idea of rape as a unique, outrageous violation is merely a noxious residue of old, invidious sexual moralities. Later I'll return to this possibility. (101) For now, we are asking how modern rape law explains itself-how rape's existence as an independent crime, graver than almost any other assault, is explained today, now that the older feminine-purity premises are no longer available.

Enter sexual autonomy. The earliest judicial statement that rape violates a woman's sexual "autonomy" was probably the Supreme Court's 1977 Coker decision--in which the Court also held that rape was not sufficiently heinous to merit capital punishment:

   We do not discount the seriousness of rape as a crime. It is highly
   reprehensible, both in a moral sense and in its almost total
   contempt for the personal integrity and autonomy of the female
   victim and for the latter's privilege of choosing those with whom
   intimate relationships are to be established. Short of homicide, it
   is the "ultimate violation of self." (102)


This frequently quoted (103) passage offered a new explanation of the distinctive violation effected by rape. Rape may not violate a woman's purity, but it does violate her "autonomy"--and specifically her sexual autonomy, her "privilege of choosing those with whom intimate relationships are to be established." (104)

Subsequent cases would reaffirm this idea, (105) explaining that sexual choices are among an individual's most private and intimate. As the Supreme Court of New Jersey put it in the well-known M. T.S. case:

   The decision to engage in sexual relations with another person is
   one of the most private and intimate decisions a person can make.
   Each person has 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. (106)


With this language, the right of sexual autonomy is fully articulated, and rape becomes expressly understood as unconsented-to sex: "We conclude, therefore, that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act ... constitutes the offense. ..." (107)

Autonomy is the dominant concept in today's leading rape scholarship. To Patricia Falk, the "central value protected by sexual offense provisions is sexual autonomy ... , the violation of which represents a unique, not readily comparable, type of harm to the victim." (1080 Stephen Schulhofer has argued extensively in favor of "sexual autonomy" and the "right to sexual self-determination." (109) Philosopher Joan McGregor concludes that the "moral wrongness of rape consists in violating an individual's ... sexual self-determination and the seriousness of rape derives from the special importance we attach to sexual autonomy." (110) The citations could be multiplied. (111)

Outside the United States, the sexual-autonomy view of rape is also widespread. Germany's criminal code classifies sexual offenses as crimes "against sexual self-determination." (112) British scholars have invoked sexual autonomy to interpret England's recently reformed rape statutes. (113) In the words of one international court, the "true common denominator" of all rape may be the "violation[] of sexual autonomy." (114)

E. Summary: Putting Privacy, Decriminalization, Sex Codes, and Rape Law Together

In 1962, when the American Law Institute omitted fornication and adultery from the proposed Model Penal Code, an explanatory note declared that "private immorality should be beyond the reach of the penal law." (115) Three years later, Griswold announced the right to privacy. Together, decriminalization and constitutionalization arguably produced a new, modern fundamental right: the right to sexual autonomy. Today this same right has entered into rape law, which found itself in need of a new structuring principle shorn of the sexism and defilement ideology of the traditional era.

Sexual autonomy has two sides. First, consenting adults have a right to engage in sex of whatever variety in the privacy of their bedrooms. That's the point of Lawrence and decriminalization. Second, if an individual doesn't want sex of whatever variety--whether with a certain person, or with persons possessing a certain trait, or in certain circumstances, or at all--he or she has a right not to have it. That's the point of modern sex codes and rape law.

Thus would American sex law today appear to be animated by a single principle. Every individual has the right to decide what kind of sex to have, with what sorts of people, and in what circumstances.

II. THE RIDDLE OF RAPE-BY-DECEPTION

Or so at least the story might go. But this picture of American sex law can't account for a peculiar and thorny anomaly: sex-by-deception.

A. The General Rule and Its Two Exceptions

The subject was already perplexing over a century ago. Ordinarily, as an important treatise observed, "if ... the consent is obtained by fraud ... the law deems there was no consent." (116) But in the "peculiar" case of rape, the rule was otherwise: "Still the majority of English judges have held, that the peculiar offense of rape is not committed where a fraudulent consent is obtained. ..." (117)

To rationalize this result, common law judges were obliged to reject one of two venerable propositions: (i) that fraud vitiated consent; or (2) that rape was sex without consent. Some chose the first option:

   It seems to me that the proposition that fraud vitiates consent in
   criminal matters is not true.... [F]or the definition of rape is
   having connection with a woman without her consent; and if fraud
   vitiates consent, every case in which a man ... commits bigamy, the
   second wife being ignorant of the first marriage, is also a case of
   rape. Many seductions would be rapes, and so might prostitution
   procured by fraud, as for instance by promises not intended to be
   fulfilled. (118)


Most judges, however, were unprepared to deny that fraud vitiates consent. Fortunately for them, a different definition of rape was available, supported by many authorities, according to which rape required force. (119) Especially in America, where the force requirement was often laid down by statute, nineteenth-century courts had a clear basis for rejecting rape-by-deception: "Rape is the carnal knowledge of any female ... 'by force and against her will,'" and "fraud is not force." (120) American courts have adhered to this reasoning ever since. (121)

There was just one problem. In certain circumstances, the law held that women deceived into sex were raped. By the end of the nineteenth century, British judges could identify two established exceptions: "In Reg. v. Flattery ... representing the act as a surgical operation ... was held to be ... rape. ... [W]here consent was obtained by the personation of a husband ... the passing of the Criminal Law Amendment Act of 1885 ... 'declared and enacted' that thenceforth it should be deemed to be rape. ... " (122)

These two exceptions--sex falsely represented as a medical procedure, and impersonation of a woman's husband-have been for over a hundred years the only generally recognized situations in which Anglo-American courts convict for rape-by-deception. (123) Both exceptions remain the law of England. (124) In Canada, they were recognized until at least 1982 and are apparently still good law today. (125) In Australia, a High Court decision expressly recognized both exceptions in 1958. (126) In the United States, courts have long endorsed the medical exception, (127) while the spousal-impersonation exception is the law of at least fourteen states,12s including California, (129) and is recognized in the Model Penal Code. (130)

B. The Conventional Justifications--and Why They Fail

To explain rape-by-deception doctrine with its twin exceptions, contemporary courts and commentators repeat a kind of mantra. Fraud "in the factum," we are told, vitiates consent; fraud "in the inducement" does not. (131) The two exceptions- medical misrepresentation and spousal impersonation-represent fraud "in the factum," while virtually all other misrepresentations are fraud "in the inducement." (132) This distinction is said to be the law's "traditional formula" for distinguishing lies that vitiate consent from lies that do not. (133)

No matter how often repeated, this argument makes no sense. First and foremost, it's simply false that "fraud in the inducement" fails to vitiate consent elsewhere in the law. Standing for the contrary proposition are countless cases involving larceny, (134) trespass, (135) and contract. (136) Among the lies that serve as exemplary consent-breakers are misrepresentations concerning the deceiver's occupation (137) or other personal characteristics--the same kind of lies at issue in many rape-by-deception cases. If the false meter reader cannot claim consent when he enters a person's home, (138) why can a false bachelor or movie mogul claim consent when he enters a woman's body?

On top of this, the fact/inducement distinction fails to explain at least one, and perhaps both, of the two exceptional scenarios it is supposed to explain. A woman who has sex with a man posing as her husband knows she is having sex. Thus if husband impersonation is "fraud in the factum," such fraud includes lies about the partner's personal identity. But if that's so, how can impersonation of a paramour be fraud "in the inducement"? (139) Indeed, how can bachelor impersonation be ruled out? To be sure, impersonating a husband deeply changes the moral, emotional, factual, and legal implications of sex, but so does pretending to be unmarried.

Even the medical-misrepresentation scenario is not so easy to explain as fraud in fact. The lie here may concern solely the man's purposes. (140) But if a misrepresentation of purpose counts as fraud "in fact," what about a man who pretends to be in love? The false doctor represents penetration as an act of professional care, the false lover as an act of emotional care.

Thus the fact/inducement distinction conflicts with countless fraud cases outside rape law, cannot explain paradigmatic examples of consent-vitiating lies, and does not even explain the two exceptions it is meant to. Let's consider, therefore, a quite different argument justifying existing doctrine.

Matters of the heart, it might be said, are beyond the limits of judicial competence. No evidence of a legally cognizable kind can prove what one person really feels for another; judges and juries would only make a mess of such matters. (141) That's why most deception claims are properly excluded from rape law, and also why rape law permits the two long-established exceptions, which involve provable facts, not subjective emotions.

But facts concerning emotions are routinely put before juries. In a murder case, the defendant might be shown to have hated the victim-or to have been in love with her and jealous. As a matter of fact, it's not uncommon for the defense in a rape case to try to show that the complainant was in love with the accused (and is lying about the alleged rape). How then could the accused's feelings for the complainant be ruled out of evidentiary bounds?

In any event, an institutional competence argument cannot come close to sustaining existing rape-by-deception doctrine. The two misrepresentations that already turn sex into rape are plainly not the only examples of "objective" lies, easily amenable to proof. Claims about a person's marital status or job or wealth would be equally easy to test in court. (142)

So the law's treatment of rape-by-deception presents a riddle. Courts know that fraud vitiates censent and recognize as much in rape law's two exceptional scenarios, but they close their eyes to that knowledge in virtually every other sex-by-deception case. Sometimes lies turn sex into rape; most of the time they don't. The official justification for this doctrine is no justification, and the most obvious alternative account--an institutional competence argument--fails just as badly. How then is rape-by-deception doctrine to be explained? (143)

C. Deception and Defilement

The mystery isn't really very mysterious. Our rape-by-deception doctrine developed long before the modern revolution in sex law. Current doctrine makes perfect sense--on the defilement logic of traditional rape law.

When courts in rape cases determine that the alleged victim "consented," what is it that the person is supposed to have consented to? The answer today is, of course, to sex. But that was not the answer under traditional rape law.

Traditional law never defined rape as unconsented-to sex as such. Rape was nonmarital sex with a woman who had not consented to that. A woman who knowingly agreed to have sex out of wedlock had done all the consenting she needed to do. Regardless of how deceived she might have been about any other facts or circumstances, she had willingly had sex with a man to whom she was not married-and had therefore in fact consented to the very act that rape law was supposed to protect her against.

Sex without consent did not mean in the old days what those same words mean today. Consent in traditional rape law was not a measure of autonomy. It was a measure of virtue.

"A virtuous female," as the courts of the traditional era were happy to define her, "is one who has not had sexual intercourse ... out of wedlock, knowingly and voluntarily." (144) A virtuous female was not, therefore, one who had engaged in sex with a man because she believed he was rich or Jewish or a bachelor interested in a serious relationship. Those facts were morally and legally irrelevant. So long as a woman had willingly engaged in nonmarital sex, she had not been mined against her will. She had voluntarily participated in--consented to--her ruin. And therefore she could not claim rape.

By contrast, in the two exceptional scenarios, where sex-by-deception could qualify as rape, the woman had precisely not consented to out-of-wedlock sex. If a man impersonated her husband (not a paramour, not a rich bachelor, not anyone else), the woman believed she was having marital sex; her consent was therefore "innocent." (145) Similarly, if a woman was convinced that she was undergoing a medical procedure, then she arguably believed, at least in a moral sense, she wasn't having sex at all. (146) Thus in the two exceptional scenarios, the woman hadn't knowingly surrendered her virtue. (147) But in almost all other cases of deception, the deceived woman had consented to nonmarital sex--the only consent that mattered.

So the riddle is solved. Rape law's exclusion of almost all sex-by-deception claims followed from the fact that in such cases the woman had willingly had nonmarital sex. Though deceived, she had willingly surrendered her virtue and thus could not claim rape. But the twin exceptions also made perfect sense, because they involved virtuous women--women who had not knowingly had sex with a man to whom they weren't married.

D. What Sexual Autonomy Says--or Ought To Say--About Rape-by-Deception

Unfortunately, to explain our rape-by-deception doctrine is also to show that it no longer makes sense--not, at least, in an autonomy-based rape law. Assuming that sexual autonomy means anything, it surely includes the right not to have sex with a married man if you don't want to. It surely includes the right not to have sex with someone who isn't interested in a serious relationship. These rights can be violated by lies just as much as they can by force or threat.

Fraud is one of autonomy's two great enemies, along with force. Just as coercion destroys autonomy, so too does deceitful manipulation. (148) Thus a rape law genuinely committed to sexual autonomy would reject the force requirement, defining rape solely in terms of consent. (149) And if rape is sex without consent, sex-by-deception ought to be rape.

E. Squaring Sex-by-Deception with Sexual Autonomy?

Let's consider some objections to this conclusion. Each will argue that sex-by-deception is not rape, while insisting that rape means unconsented-to sex. This line of argument may tempt many readers. Those who have long believed both that rape is sex without consent and that rape-by-deception is not rape will naturally want to believe these two positions are not in conflict.

Let me begin, therefore, with a reminder: our law's almost categorical exclusion of rape-by-deception claims began in traditional rape law's rejection of sexual autonomy. A woman had no right, legal or moral, to have nonmarital sex; so long as she consented to that act of defilement, she had not been raped, no matter how deceived she was about any other facts. It would be quite surprising if rape law's deception doctrine, inherited virtually unchanged from the traditional era, could suddenly be justified on the basis of the very principle-sexual autonomy-whose rejection it was built on. Yet that is what every one of the objections about to be considered claims.

1. Victims of Deception Do in Fact Consent

First objection: when sex is imposed through brute force, the victim's will is physically overborne. He never says yes; he never consents. But that's not so with deception. Here the victim does in fact say yes. Of course sex-by-deception isn't rape (it might be said); the victim consented. (150)

The correct comparison, however, is to a victim compelled to submit at gunpoint, who does say yes. If that "consent" is rejected on grounds of autonomy, as it must be, the same should go for a "consent" procured by fraud. Neither consent is given in conditions allowing an autonomous choice. (151) That is why libertarians object foundationally to both force and fraud. (152)

2. Deceived Sex Is Wanted Sex

But at least in deception cases, someone might say, the victims physically desire the sex they engage in (at the moment they engage in it), and thus should be viewed as having consented to it. There is a huge difference between having sex one physically desires and (as in forcible rape) having sex one doesn't. When a person is deceived into sex, "the encounter is one that--at the time--she believes she wants," from which she "may experience sexual pleasure." (143)

This reasoning is badly flawed. To begin with, it marries consent to the physical "wantedness" of sex and hence to pleasure. That position has a venerable history, but it is unacceptable: it suggests that a rapist should videotape or brain-scan his victim, trying to preserve evidence that the victim actually "experience[d] sexual pleasure." (154) Pleasure is not consent. A person aroused by forced sex (155) is not a rape-free zone, susceptible to imposition by anyone at any time.

In any event, it simply is not true that all victims of sexual deception physically desire the sex they agree to. Consider two people, each of whom agrees to have sex with a man, identically deceived about the man's wealth, marital status, and feelings. The first person desires sex and takes pleasure from it; the second is repulsed, but submits in hope of a lucrative, long-term relationship. Are courts really to hold that the first was not raped (because the sex was physically desired), but the second was (because the sex was disgusting)?

3. Lies Are Customary and Expected in Sexual Contexts

Next objection: sexual lies are so rife that no one actually relies on them--or at least no reasonable person does. "[W]ords said to arouse feelings and to 'put one in the mood' are understood to be part of a game that lovers play. ..." (156) Thus no one is deceived, because no one is (reasonably) taken in.

It's true that a healthy skepticism properly discounts much of what people say in sexual settings, but it seems overwrought to conclude that there can be no reasonable reliance at all. Sooner or later most of us come to believe certain things about the people we have sex with. We can be badly fooled; we might even marry into a lie. Whether on the first date or the tenth, the "it's a game that lovers play" argument will eventually run out. It will not explain why rape-by-deception goes unpunished when reasonable people are deceived about facts material to their sexual decisions.

Moreover, if sexual deceivers started going to prison in large numbers for rape-by-deception, many fewer lies would be told and reliance would become even more reasonable. So as a defense of existing rape-by-deception doctrine, this argument is not only overstated. It's circular.

4. Deception Need Not Undermine Autonomy

"You seem to be arguing that all deception vitiates autonomy," it might be objected. "No serious account of autonomy takes that view. An agent autonomously consents by assenting under conditions justifying the further conclusion that he has given a morally or legally significant permission. These conditions are not easy to specify, but clearly they don't require complete information or truth. For sexual autonomy, only a very few basic facts need be known; I'm not prepared to say exactly which facts, but they don't include the other's income, marital status, feelings, etc."

In fact I haven't argued that all lies undermine autonomy; only material lies reasonably relied on do. But the critical claim here is that knowing "a very few basic facts," even while being lied to about others, preserves the autonomy of sexual consent. Why should this be so? There are two versions of this claim.

The strong version would assert that most deception, unlike physical threats, actually leaves autonomy basically intact. "Consider the duress defense in criminal law," it might be said, "and the absence of a corresponding deception defense. Threats of serious bodily harm make an action unattributable to an agent; if you rob a bank under duress, you're not guilty. But if you were merely lied to--about your take, for example, or your accomplice's romantic interest in you--you are guilty. The duress defense reflects the core insight that coerced parties lose their autonomy while deceived parties do not." (157)

This objection is important, but it relies on a misleading premise. It presumes that the traditional criminal defenses track autonomy, so that the absence of a general "deception defense" in criminal law would indicate that deceived persons retain their autonomy, or at least are so judged by the law. This premise is incorrect.

The traditional criminal defenses track not autonomy, but blameworthiness or guilt. Self-defense exonerates, but in no way undermines autonomy; it exonerates because it justifies. The reason a bank robber fooled by confederates who plan to abscond with all the loot has no defense is that this deception doesn't make him any less blameworthy or less guilty of bank robbery. If, by contrast, he had been fooled into believing that he was not robbing a bank, but simply making a lawful withdrawal of funds, he would have a defense. In other words, there is a deception defense in criminal law when the deception is such that it absolves the deceived person of blameworthiness or guilt.

When law does track autonomy--when it is directed at protecting autonomously given consent, rather than establishing an excuse from criminal liability--it almost invariably protects persons victimized by deception as well as by duress. Thus if you are gulled by the proverbial false meter reader, you can claim trespass because his deception undermined your right to decide who may and may not enter your house. Similarly, the false stockbroker uses no duress, but still takes your property without your autonomous consent, which is why you can claim theft.

A rape victim is not a criminal defendant. She is not called on to show that she has a valid "defense" or that she should be excused for having engaged in sexual activity. According to the autonomy-based view of rape, all she is required to show is that her autonomy--her right to make an autonomous choice about her sexual activity--was violated. And on that view, rape-by-deception ought to be rape, just as larceny-by-deception is larceny.

A weaker version of the "basic facts are enough" claim would focus on the particular lies involved in rape-by-deception. "Imagine a surgeon," this argument might go, "who had falsely told a patient he was a bachelor seriously interested in a relationship with her. Her consent would still be upheld in court, provided she knew all the medically relevant information. (158) Rape-by-deception doctrine is identical. Just as the law can reject this 'surgery-by-deception' claim while still protecting patient autonomy, so too can the law reject rape-by-deception while still protecting sexual autonomy."

But the analogy doesn't hold. Not every misrepresentation is material. The lies that break consent in any particular legal context will depend on what must be consented to, which will in turn depend on what values or interests the law in question is attempting to serve. (159) Patient consent laws are interested in medical consent, to which the only material facts might be said to be the medical facts, not the doctor's sexual intentions. But for the very same reason, lies about sexual intentions could not be deemed per se immaterial to sexual consent.

Materiality represents a judgment about what facts a person has reason to take into account in making a certain decision, given the interests that the law protecting that decision seeks to further. Thus a patient consent law aiming at an informed medical decision will ask which facts a person has reason to take into account from a medical point of view. (160) But by the same logic, the question in sexual matters must be what a person has reason to take into account from a sexual point of view. And marital status, feelings, seriousness of interest, and even religion are all factors reasonable people could well take into account in making sexual decisions; thousands do so every day.

The only way to limit the material sexual facts to the "basic facts" (essentially the facts of the sex act) is, uncoincidentally, to adopt traditional rape law's judgment of materiality, in which the one decision that counted was the woman's decision to have sex, full stop. A rape law dedicated to autonomy has no basis for so cramped a judgment of what is material. To pretend otherwise is to cloak traditional sexual morality in the modern rhetoric of autonomy. At a minimum, an autonomy-based rape law should see rape whenever, to quote Israel's Supreme Court, someone "does not tell the truth regarding matters critical to a reasonable [person], and as a result of his misrepresentation [that person] has sexual relations with him." (161)

III. Three Options, Including A Compromise

The conundrum of sex-by-deception therefore leaves rape law in an uncomfortable position. Three principal positions are available. The first two are obvious, with obvious difficulties. The third is a compromise.

A. Sticking with Force

The first alternative is for rape law to stick with the force requirement. Rape isn't sex without consent; it's forcible sex without consent. The virtue of this option (if it is a virtue) is that it excludes rape-by-deception-and does so without invoking antiquated notions of feminine virtue.

But this way of dismissing rape-by-deception flies in the face of the near-universal scholarly consensus decrying the force requirement. (162) It offers no explanation why pressures and manipulations falling short of physical force should not turn sex into rape. Indeed, without more, it offers no explanation why force does turn sex into rape: for if the answer were only that force vitiates consent, then sex-by-deception ought to be rape as well.

More fundamentally, the force requirement turns its back on the right of sexual autonomy. As a result, it not only conflicts with what is today understood as rape law's fundamental principle. It is also in deep tension with Lawrence v. Texas--assuming that Lawrence stands for a right of sexual autonomy. (163)

I don't mean that rape law's force requirement is unconstitutional; statutes can be in profound tension with constitutional principles without being unconstitutional. By way of analogy, imagine a state statute comprehensively regulating abortion, but specifically immunizing from all liability (criminal or civil) any person who uses deception or concealment to prevent a pregnant woman from obtaining an abortion. Doctors could lie to pregnant women with impunity to deceive them into childbirth. Pathologists could falsify amniocentesis results.

Depending on your views about abortion, you will presumably react to this scenario by condemning either the statute or Roe v. Wade. (164) If you believe that Roe properly protects a woman's right to choose abortion, you will object that the statute allows private actors to deny or obstruct that right. If on the other hand you consider abortion the killing of a human being, you might say that the statute is right because Roe is wrong. Either way, by permitting private actors to engage in abortion-prevention-by-deception, the statute would be a rebuke to Roe-deeply in tension with that case, even if not unconstitutional thereunder.

Now apply this logic to sexual autonomy. If Lawrence really holds that every individual has a right to sexual autonomy, rape law's permission of sex-by-deception-permitting private actors to deceive people into sex-would be analogous to a statute permitting private actors to deceive women into childbirth. It would be a rebuke to Lawrence. It would allow private actors to deny or obstruct a freedom that constitutional law had deemed fundamental.

Thus does the force requirement, which sustains existing rape-by-deception doctrine, turn its back on what is arguably the reigning principle of American sex law. So long as rape law adheres to the force requirement, it permits sex-by-deception and refuses to vindicate the right to sexual autonomy.

B. Embracing Sexual Autonomy

The second alternative is the reverse: abandoning the force requirement and embracing instead the right of sexual autonomy. This option would have the mirror-image advantages and disadvantages of the first.

Appealingly, it would eliminate any conflict between rape law and the principle of sexual freedom--the privilege to choose for oneself, in an exercise of one's own autonomous will, under what circumstances to have sex. In addition, it would have the virtue of eliminating those aspects of current rape law that critics of the force requirement most vigorously oppose. For example, a rape law untethered to force could finally penalize men who use nonviolent pressures, manipulation, or alcohol to induce sexual cooperation.

On the other hand, sex-by-deception would have to be a crime as well. If our criminal sex law were really designed to vindicate a right of sexual autonomy, sex plus lies should equal jail time, whether the lie was a false claim of bachelorhood, "I love you," or any other material misrepresentation reasonably calculated to induce another person to have sex. To be sure, the crime need not be graded as severely as violent rape. It could be called rape-in-the-second-degree or just "rape-by-deception." But in one form or another, if rape is sex without consent, sex-by-deception ought to be rape.

C. The Compromise: Not Force, but Coercion

Is rape law therefore obliged either (1) to stick to the force requirement or (2) to criminalize sex-by-deception? No: a third way is possible.

Suppose rape law replaced the force requirement with a coercion requirement. A coercion requirement would cure the worst problems of the force requirement, reject rape-by-deception claims, and effect a partial reconciliation between rape law and sexual autonomy. For these reasons, many readers may find this solution appealing.

One of the most widely condemned implications of the force requirement is its absolution of defendants who use nonviolent means of pressuring or manipulating vulnerable people, particularly women, into sex. In an egregious case called Mlinarich, a sixty-three-year-old man arranged to become the guardian of a thirteen-year-old girl, securing her release from a juvenile jail. (165) On her fourteenth birthday, the man ordered his ward to undress and serve him sexually. (166) She refused, but he eventually induced her to submit by threatening to send her back to jail. (167) Over the next few weeks, he tried twice to have sexual intercourse with her, failed both times, sodomized her, and finally succeeded in having intercourse. (168) Under the force requirement, the Pennsylvania courts acquitted Mlinarich of rape? (169)

A coercion-based rape law would easily produce a different result. Similarly, a coercion requirement would be satisfied where a principal compels a student to have sex by threatening to expel her, (170) or where an employer compels sex by threatening to fire the employee. Thus a coercion requirement would pick up at least some of the worst cases that fall through the cracks of the force requirement.

Moreover, a coercion requirement would bring rape law closer to the ideal of sexual autonomy. But deception is not coercion. So a coercion-based rape law would still exclude most cases of sexual deception.

Many readers may, therefore, find in a coercion-based rape doctrine a happy medium between a rape law so narrow that it prohibits only sex induced by physical force and a rape law so broad that it jails people who have sex while concealing their true age, looks, income, or degree of romantic interest. A coercion requirement offers an appealing compromise between the two extreme positions, reaching desired results while bringing rape law a step closer to sexual autonomy.

D. Conclusion: The Problem with Coercion

Probably this Article should now be finished. We have seen how the problem of rape-by-deception drives a wedge into rape law, requiring it to choose between force and autonomy. And now we've struck a compromise, offering a partial reconciliation between them.

The problem is that the compromise dissolves on contact with reflection. The coercion requirement's exclusion of rape-by-deception is contradicted by its own internal logic. Coercion is objectionable because a coerced "yes" does not reflect a valid or genuine consent. But the same is true of a deceived "yes." An anti-coercion principle is attractive because coerced sex is unconsented--to sex. But if unconsented--to sex is rape law's target, then deceptive sex ought to be punished as well.

Could a coercion-based account of rape claim to rest on something other than a consent principle ? Duress, perhaps?

Invoking duress adds nothing to the argument. First of all, coercion and duress are largely interchangeable terms in law. (171) Thus to say that a coercion-based rape law could rest on duress is like saying that a coercion-based rape law could rest on coercion. Moreover, when courts explain why duress is legally important, they typically say that duress (like coercion) undermines "free" choice, causing the victim to act in a way that doesn't reflect his "free will or free agency" (172) or true consent. (173) But fraud does the same. Finally, as noted above, a duress-based rape law would make sense only if rape law were concerned not with the victim's autonomy, but rather with her blameworthiness or responsibility for having had sex.

A coercion rule for rape law would claim its strength from the principle of sexual autonomy--the idea that people have a right not to engage in sex they don't consent to. But by excluding sexual deception, the coercion compromise conflicts with sexual autonomy. It can exclude rape-by-deception only by contradicting its own logic.
COPYRIGHT 2013 Yale University, School of Law
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2013 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:Introduction through III. Three Options, Including a Compromise, p. 1372-1412
Author:Rubenfeld, Jed
Publication:Yale Law Journal
Date:Apr 1, 2013
Words:10004
Previous Article:Mere negligence or abandonment? Evaluating claims of attorney misconduct after Maples v. Thomas.
Next Article:The riddle of rape-by-deception and the myth of sexual autonomy.
Topics:

Terms of use | Privacy policy | Copyright © 2021 Farlex, Inc. | Feedback | For webmasters